McLaughlin v. Wall

— 46 — The opinion of the court was delivered by Smith, J.: The appellees have filed a motion to dismiss the appeal in this case, on the ground that the amount or value in controversy does not exceed one hundred dollars. The motion is overruled. It is sufficient to say that this is an action for the recovery of specific personal property, and is not an “action for the recovery of. money,” and the limitation on the right of appeal in section 566 of the civil code has no application to this case. This action was brought by Wm. McLaughlin and thirty-three others as plaintiffs against John W. Wall, N. J. Randall and twenty-four others as defendants. The case has been' in this court before on appeal. (McLaughlin v. Wall, 81 Kan. 206, 105 Pac. 33.) To explain any conflict which may seem to exist between that decision and this one, it is proper to state that appeal was taken from the order of the court sustaining an objection to the introduction of any evidence by plaintiffs on the ground that the petition did not state any cause of action. The appeal in this case is from the result of a jury trial on' the petition and answer, which consisted of a general denial. At the close of the evidence the court sustained the demurrer of John W. Wall to the sufficiency thereof and overruled a like demurrer of all the other defendants thereto. Thereafter the court gave the jury an instruction on its own motion and refused eight requests for instructions asked by the appellants. The refused instructions are set forth in the abstract. Some of the refused instructions were applicable to the issues involved, were correct statements of the law, and should have been given. They are in accord with the views herein expressed, and a separate discussion of them is unnecessary. The instruction given reads as follows: “In the light of the evidence in this case, as it now — 47 — stands, there is only one question to be submitted to-the jury, and that is the question of damages for the unlawful detention of the property of Subordinate-Lodge No. 5 of the A. H. T. A., by the defendants. You are instructed as a matter of law that the plaintiffs in this action are entitled to a verdict for the return of" the property unlawfully detained or if the same can not be returned or any part of it its fair value to said lodge in money, together with such sum, if any, as you may believe will fairly compensate plaintiffs for the unlawful detention of said property, in fixing the value-of any of said property that may be detained you will consider what the evidence may show you it was fairly and reasonably worth for lodge purposes.” The jury returned a verdict in favor of the plaintiffs for the recovery of the property in controversy,, and found the value of the property to be as follows: Charter $3, secretary’s book $0.75, treasurer’s receipt book $0.25, lodge seal $1.72, silk banner $3.10, and as damages for the unlawful detention thereof $50. Judgment was rendered accordingly and defendants appeal. As indicated in the former decision (McLaughlin v. Wall, 81 Kan. 206, 105 Pac. 33), the action was really brought by the old order No. 5 in the name of the ap-pellees. The appellees have no right to recover, unless, as and for the order. It follows that if the old order No. 5 had ceased to exist before the trial the appellees should not have recovered in -this action. We are not. to be understood as saying that if a voluntary association should cease to exist, possessing property of a. substantial value for other than lodge purposes, in a. proper action the members thereof might not be entitled to a distribution thereof; but that is not this case. The propérty in -question is evidently worthless except for the particular use of the order. The vital question, in this case, then, is whether the old order No. 5 was-in existence at the time of the trial and judgment in this case — July, 1910. Wé assume that the effort to disband the order March 12, 1908, was abortive for fáilure to notify all members: — 48 — thereof that the question would be presented at that time. It appears from the evidence, without dispute, that the charter came into the hands of N. J. Randall, president of the state order, some time after that date, as surrendered; that he destroyed it, as was the custom; that a petition by the appellants for a new charter was presented to him and, after investigation, he granted it and issued a charter to them' of the same number as the old one, subordinate order No. 5, which charter was signed by the president and secretary of the state order. In October, 1908, the annual meeting of the state order was held at Salina, to which representatives ■of the old order No. 5 and of the new order No. 5 applied for admission. Under the provision of the state ■order constitution each subordinate order in the state was entitled to representation in such meeting. After investigation the state order admitted the new order No. 5 and excluded the old order No. 5. This, in effect, ■constitutes a decision of the supreme tribunal of the order that old subordinate order No. 5 no longer existed. And, there being no suggestion that it was in violation of the laws of the land or that any appeal therefrom was taken to the national order, the decision is binding and final. A copy of the constitution of the state order is attached to the petition of appellees. Sections 1 and 2 of article 1 thereof read: “Sec. 1. This body shall be known as the State Order of the Anti-Horse Thief Association for the State of Kansas and its jurisdiction. It shall be composed of its officers and representatives from the Subordinate Orders. “Sec. 2. This State Order shall have jurisdiction over all localities in which there are [at] present, or may be hereafter, Orders-, located. It is the supreme tribunal of the Order in its jurisdiction; and without its sanction no subordinate order can exist. It possesses the sole right and power, in the manner hereinafter provided, of granting or suspending charters, of receiving appeals and redressing grievances arising — 49 — in orders, of originating and regulating the means of its own support, of deciding all questions arising out of its Constitution or rules of Order, and doing all other acts necessary to promote the interests of the Order; provided, the same are not in violation of the laws of the land or consent’of the National Order.” The state and subordinate orders of the Anti-Horse Thief Association are not corporations but are voluntary associations, and such orders and the members thereof are boijnd by the constitution of the state order'. (See Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Moore v. National Council, 65 Kan. 452, 70 Pac. 352; Miller v. National Council, 69 Kan. 234, 76 Pac. 830.) In Brown v. Stoerkel, 74 Mich. 269, 41 N. W. 921, 3 L. R. A. 430, it is well said: “The articles of agreement of a benevolent association, whether called a constitution, charter, by-laws or any other name, constitute a contract between the members which the courts will enforce if not immoral, or contrary to public policy or the law of the land.” (3 L. R. A. 430, headnote, ¶ 3.) As shown in the decision in McLaughlin v. Wall, 81 Kan. 206, 105 Pac. 33, the plaintiffs in no event, as individuals, had any right of recovery, but that they recovered as and for the association, old order No. 5, aggregate, if at all. As the highest tribunal of the state order had, in 1908, adjudicated, and its decision was final, that old subordinate order No. 5 had no existence, and no resurrection thereof was proved or even suggested, it follows that the appellees could not, in 1910, recover as and for that order. It is equally apparent that a new trial would be fruitless. Other questions are involved which, in view of the conclusion at which we have arrived, it is unnecessary to decide. From the foregoing it follows that the court erred in overruling the demurrer of appellants to the evidence of appellees; also in its instruction to the jury, and in overruling the — 50 — motion for a new tria] and entering judgment upon the verdict. The judgment is reversed and the case is remanded with instructions to render judgment in favor of the defendants.