Kane v. Shields

Field, C. J. This case was heard by a justice of the Superior Court upon the pleadings and evidence, and a decree entered for the plaintiffs against some of the defendants, and the bill dismissed without costs as to the other defendants. The evidence was taken by a commissioner appointed by the court at the request of the defendants. The plaintiffs’ counsel contends that the decree should be affirmed against the defendants held liable by the Superior Court, and also that it should be modified so as to include among those held liable some of the defendants as to whom the bill was ordered to be dismissed. We are of opinion that this last contention is not open to the plaintiffs. The plaintiffs have not appealed from the decree, and it does not appear that they asked to have the case reported. It appears that the evidence was taken and the case reported at the request of the defendants. Although it does- not appear that the defendants have in form appealed from the decree, yet we think that the case as reported should be treated as if the defendants had appealed and the plaintiffs had not. Moors v. Washburn, 159 Mass. 172, 176. The principal question in the case is whether such an association as is described in the bill and shown by the evidence can, by a vote of a majority of its members voting on the question, lawfully authorize its officers to pay out of the money and funds of the association to certain members who are permitted to secede from it and set up another and a different organization, their pro rata share of the property of the association. The constitution and by-laws of tbe association put in evidence contain no provisions which seem to us to authorize such an appropriation of the property of the association. The association was not dissolved by the vote, but continued to exist the same as before. The case on the evidence falls within the decision in McFadden v. Murphy, 149 Mass. 341. See Altmann v. Benz, 12 C. E. Green, 331. We are of opinion that the decree should be affirmed. So ordered.