{ "id": 8612095, "name": "IONIC LODGE #72 F. & A. A. M. v. IONIC LODGE FREE ANCIENT & ACCEPTED MASONS #72 COMPANY, W. S. SCALES and GEORGE W. HARRIS", "name_abbreviation": "Ionic Lodge #72 F. & A. A. M. v. Ionic Lodge Free Ancient & Accepted Masons #72 Co.", "decision_date": "1950-11-22", "docket_number": "", "first_page": "648", "last_page": "653", "citations": [ { "type": "official", "cite": "232 N.C. 648" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "59 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "52 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628821 ], "opinion_index": 0, "case_paths": [ "/nc/230/0149-01" ] }, { "cite": "259 U.S. 344", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 423328 ], "opinion_index": 1, "case_paths": [ "/us/259/0344-01" ] }, { "cite": "58 S.E. 2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "231 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630871 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nc/231/0522-01" ] }, { "cite": "120 S.E. 57", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "186 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654009 ], "opinion_index": 1, "case_paths": [ "/nc/186/0505-01" ] } ], "analysis": { "cardinality": 621, "char_count": 14443, "ocr_confidence": 0.48, "pagerank": { "raw": 1.699553334185522e-07, "percentile": 0.7005703807442055 }, "sha256": "2804a0b17f31c470657bc38805a97cf3ba73438258a22802929ffd9ff971cbdd", "simhash": "1:9ca74404ff5820e6", "word_count": 2442 }, "last_updated": "2023-07-14T20:42:59.145817+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I am authorized to say that Justice Ervin concurs in this opinion." ], "parties": [ "IONIC LODGE #72 F. & A. A. M. v. IONIC LODGE FREE ANCIENT & ACCEPTED MASONS #72 COMPANY, W. S. SCALES and GEORGE W. HARRIS." ], "opinions": [ { "text": "WiNborNE, J.\nThe ground on which the petition to rehear, now in hand, is based is that, in passing upon the question as to whether plaintiff has the legal capacity to sue in this action, the provisions of G.S. 1-70 were not taken into consideration, and that the conclusion reached was made to rest upon statutes which are not pertinent. It is contended, and we think properly so, that the provisions of G.S. 1-70 are pertinent to and determinative of the question.\nIt is well settled that at common law an unincorporated association was not recognized as having legal entity, and could not sue or be sued in the association name. The common law required the action to be brought by or against the members composing the association. In this State, so much of the common law as has not been abrogated or repealed by statute is in full force and effect. G.S. 4-1, formerly C.S. 970. Scholtens v. Scholtens, 230 N.C. 149, 52 S.E. 2d 350, and cases there cited.\nAnd in this State the statute on civil procedure, Chapter 1 of the General'Statutes, provides that every action must be prosecuted in the name of the real party in interest, G.S. 1-57; and that all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, either jointly, severally, or in the alternative, except as otherwise provided, G.S. 1-68.\nAnd G.S. 1-70, as now constituted, a consolidation of what was formerly C.S. 457, and an act amendatory thereof, Chapter 182 of Public Laws of 1933, relates to \u201cJoinder of Parties\u201d; and to \u201cActions by or against one for the benefit of a class.\u201d In pertinent part C.S. 457 reads as follows: \u201cOf the parties to the action, those who are united in interest must be joined as plaintiffs or defendants,\u201d and \u201cWhen the question is one of common or general interest of many persons, or where the parties are so numerous that it is impracticable to bring them all before the \u25a0court, one or more may sue or defend for the benefit of all.\u201d\nThe 1933 Act amended C.S. 457 \u201cby adding another section thereto as follows: Any and/or all unincorporated, beneficial organizations, fraternal benefit orders, associations and/or societies, or voluntary fraternal beneficial organizations, orders, associations and/or societies issuing certificates and/or policies of insurance, foreign or domestic, now or hereafter doing business in this State, shall have the power to sue and/or be sued in the name commonly known and/or used by them in the conduct of their business to the same extent as any other legal entity established by law, and without naming any of the individual members composing it : Provided, however, this act shall apply only in actions concerning such \u25a0certificates and/or policies of insurance.\u201d\nThus it is clear that the General Assembly has, by the provisions of G.S. 1-10 abrogated the common law in respect of the parties to an action at law to the extent, and only to the extent that (1) \u201cwhen the question is one of common or general interest of many persons, or where the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all\u201d; and (2) when an unincorporated association of the kind or character enumerated, is engaged in issuing certificates and policies of insurance, or either, and doing business in this State, it may sue or be sued in any action concerning such certificates and policies, or either, without naming any of the individual members composing it.\nIn the present action, plaintiff alleges in its complaint that it is \u201can unincorporated fraternal organization or society,\u201d but there is no allegation, proof or suggestion that it is engaged in the business of issuing certificates and policies of insurance, or of either. Therefore, plaintiff, as an unincorporated fraternal association, may hot, as such, maintain an action at law, \u2014 but the provisions of the statute are open to its members.\nIt is noted that the opinion reported ante, at 252, recognizes the uniform holding of the courts that following the rule of common law an unincorporated association does not have the capacity to sue, unless given that capacity by some pertinent statute. And the opinion points out, G.S. 1-97 (6), requiring certain unincorporated associations to appoint process agents, and G.S. 39-24 through G.S. 39-27, authorizing certain voluntary organizations and associations to acquire, hold and convey real estate, as grants of implied authority. It would seem, however, that the provisions of G.S. 1-70 hear directly and expressly upon the question presented, and are controlling.\nHence the petition is allowed, and the judgment from which appeal is taken is affirmed.\nPetition allowed.", "type": "majority", "author": "WiNborNE, J." }, { "text": "Devikt, J\".,\ndissenting: I am unable to agree with the disposition made of this case. By the majority opinion on rehearing the decision heretofore rendered by this Court is overruled, and it is now held that the plaintiff, a fraternal association known as Ionic Lodge F. & A. A. M., be denied the right to go into court to assert its title to an interest in real property and for the rents thereof of which it is alleged it is being deprived by the wrongful acts of the defendants.\nIt is declared that the plaintiff association, the owner of real property lawfully acquired, has not capacity to sue to protect its rights therein, and the action it has instituted therefor is dismissed on that ground. \"With this I cannot agree. In my opinion, under the facts here alleged, Ionic Lodge should not be denied capacity to present its plea for redress for wrongs done its property rights.\nAt common law an unincorporated association of persons was not recognized as haying capacity to sue or be sued. It was a nonentity. Its members were regarded as acting only in the character of partners in whatever they undertook to do. Tucker v. Eatough, 186 N.C. 505, 120 S.E. 57; Lodge v. Benevolent Association, 231 N.C. 522, 58 S.E. 2d 109; United Mine Workers v. Coronado, 259 U.S. 344. But modern social and \u25a0economic conditions presented a different picture. The fact that lodges, fraternal benefit societies, labor unions were entering into contracts and under well-known names acquiring and owning property and property rights of substantial value necessitated reconsideration of the status of such associations in courts of justice. Now, both by statute and by judicial decisions, the legal existence of such well-defined associations has been fully recognized and their rights to contract, to own and deal with property, real and personal, in the common name of the association has been \u2022established. We have emerged from the shadow of the common law into the light of reason and practical experience.\nThe existence of associations such as plaintiff as distinct entities has been recognized by statute in North Carolina, and the rights of these associations with respect to the acquisition, ownership and disposition \u25a0of real property fully assured.\nG.S. 39-24 provides that \u201cvoluntary organizations and associations \u25a0organized for charitable, fraternal, religious or patriotic purposes . . . are hereby authorized and empowered to acquire real estate and to hold the same in their common or corporate names.\u201d G.S. 39-25 declares that real property which has been conveyed to such organization or association in the name by which it is commonly known \u201cshall vest in said organization and may be conveyed by said organization in its common name . . . by deed.\u201d\nBy G.S; 1-97 (6) provision is made for service of process on \u201cany unincorporated association or organization,\u201d and it is declared that service by the method prescribed \u201cshall be legal and binding upon the association or organization,\u201d and any judgment rendered thereunder \u201cmay be collected out of any property belonging to the association or organi-sation.\u201d\nThese statutes removed plaintiff association from the category of a nonentity, and recognized its right in its own name to acquire and own real property. These rights would be stripped of an essential value unless it be held that the powers expressly conferred were accompanied, by necessary implication, by the right to apply to the courts for redress for wrongful invasion of the rights thus conferred.\nAs result of tbe decision in this case a complainant can bring such an association into court and by judgment take away its property, but when the association\u2019s property has been wrongfully taken by another, it is powerless to come into court for redress. It should have the right to sue as well as be sued.\nWhile the statutes quoted do not in direct language confer upon an association like the plaintiff the capacity to sue and be sued in its common name, the intent and effect cannot be mistaken. Recognition of such association as legal entities clothed with all the incidents of property ownership should be held to confer upon it as upon an individual who has been disseized the right to present to a court of justice its plea for redress. The statutory provision for service of process on an association in its common name, and upon which it may be sued in court, suggests the conclusion that it also may come into court voluntarily and be heard on its complaint. From an examination of these statutes I reach the conclusion that the legislative intent appears sufficiently manifest to justify this Court in declaring the law in accord with the implications necessarily flowing therefrom.\nAs the basis for rehearing it was argued that Justice SeaweTl in writing-the former opinion overlooked G-.S. 1-70. I doubt that. In his carefully prepared opinion it was said, \u201cThe plaintiff comes within the pale of recently enacted statutes vesting them with that capacity (to sue).\u201d In any event I do not regard that statute as controlling the decision on the facts here made to appear. G-.S. 1-70 requires that those who are \u201cunited in interest must be joined as plaintiffs, and where the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.\u201d This statute, as result of subsequent amendment, further provides that an unincorporated fraternal benefit association \u201cissuing certificate of insurance\u201d shall have power to sue and be sued in its common name as any other legal entity established by law; \u201cprovided, however, this section shall apply only in actions concerning such certificates of insurance.\u201d\nThe plaintiff is not a fraternal benefit association \u201cissuing certificates of insurance,\u201d and this action in no way relates thereto. Plaintiff is seeking to recover its right to an interest in real property of which it has been wrongfully deprived by the defendants. This section G.S. 1-70' is not comprehensive. It does not apply to suits against the plaintiff, nor should it be held to prohibit suits by the plaintiff. It applies by its terms to a particular business in which plaintiff is not engaged and with which it has no concern. I do not think this amendment to an older statute now codified as part of G.S. 1-70 was intended to shut the door of a court of justice in the face of an association which had been expressly authorized and empowered by statute to acquire and own real property when it comes seeking redress for the wrongful deprivation of that property.\nIt will not do to say that if the parties are so numerous that it is impracticable to bring them all into court, one may sue for the benefit of all. The number of members of the lodge does not appear, but that is not material, as the beneficial ownership of the property involved vested in the lodge as such. Plaintiff Lodge is the real party in interest. The members as individuals do not own the property and are not the real parties in interest. It was alleged in the complaint that it was the intent of all parties \u201cthat the beneficial ownership of the property above described should, at all times, be held for the use of the plaintiff Lodge.\u201d\nThe views herein expressed are fortified by what was said by this Court in the recent case of Lodge v. Benevolent Association, 231 N.C. 522, 58 S.E. 2d 109. In that case the question here debated was not directly presented, but Justice Ervin, writing the opinion for the Court, called attention to the several statutes hereinbefore cited, and made this comment: \u201cA thoughtful note in the North Carolina Law Eeview suggests that the last cited statute (G.S. 1-97 (6)) must be interpreted to render all unincorporated associations capable of suing and being sued in their own names in North Carolina courts. 25 N.C.L.E. 319.\u201d It will be observed in the article in the Law Eeview referred to that the author, after reviewing all these statutes, concluded that the principle of \u25a0fairness dictated \u201cif one had capacity to be sued, he must also have capacity to sue in the same manner.\u201d\nIn my judgment the petition to rehear should have been dismissed.\nI am authorized to say that Justice Ervin concurs in this opinion.", "type": "dissent", "author": "Devikt, J\".," } ], "attorneys": [ "Elledge <& Browder and Eugene H. Phillips for plaintiff.", "Ingle, Rucker <& Ingle for petitioners." ], "corrections": "", "head_matter": "IONIC LODGE #72 F. & A. A. M. v. IONIC LODGE FREE ANCIENT & ACCEPTED MASONS #72 COMPANY, W. S. SCALES and GEORGE W. HARRIS.\n(Filed 22 November, 1950.)\n1. Associations \u00a7 5: Common Law\u2014\nThe common law rule that a unincorporated association has no legal entity and can neither sue nor be sued in its own name obtains in this State except to the extent it has been modified by statute. G.S. 4-1.\nS. Parties \u00a7 1\u2014\nAn action must be prosecuted in the name of the real party in interest. G.S. 1-57, G.S. 1-68.\n3. Associations \u00a7 5\u2014\nThe common law rule that an association is without power to sue in its common name has been modified by statute in this State only to the extent of permitting an association to sue in its common name in an action concerning a certificate or policy of insurance issued by it, and in other cases permitting one or more members of an association to sue for the benefit of all when its members are so numerous that it is impractical to bring them all before the court, G.S. 1-70, and provisions of this statute are controlling and preclude an association from suing in its common name on a cause of action unrelated to insurance.\nDevin, J., dissenting.\nErvin, J., concurs in dissent.\nPetitioN by defendants, appellees, to rehear the case reported ante, 252, 59 S.E. 2d 829, where the facts as shown in the record on appeal are stated.\nElledge <& Browder and Eugene H. Phillips for plaintiff.\nIngle, Rucker <& Ingle for petitioners." }, "file_name": "0648-01", "first_page_order": 696, "last_page_order": 701 }