Eminent Household v. Thornton

70 S.E. 666, 135 Ga. 786, 1911 Ga. LEXIS 79

Opinions

Holden, J.

(After stating the foregoing facts.)

The Eminent Household of the 'Columbian Woodmen, a fraternal order holding a charter from the secretary of State, in its petition against J. B. Frost and others, alleged that the Executive Committee and the Eminent Council of the order had suspended Frost from the office of Eminent Consul, because of certain charges against him; and prayed that Frost and the other defendants be enjoined from participating in any meeting of the committee, council, or household of the order. Frost and the other defendants made in their original answer, among other allegations, the following: The council had no authority to suspend Frost, or to amend the by-laws or constitution of the order, but the authority to do these things was in the original incorporators, who had all the authority of /the household before its first meeting, and the household had never met. At a meeting of Frost and other ‘incorporators, the action of the council in suspending Frost, and its action in other respects, were disapproved and declared illegal, and Frost was declared to be invested with full power and authority of the Eminent Consul. The answer to this petition, filed by all of the parties defendant, prayed that Binford and others, claiming to constitute the council, be made parties, and that they be enjoined from interfering with the action taken by the incorporators, and that Binford, elected Viceroy and acting Consul by the Council, be enjoined from performing any duties incident to the office of consul and from interfering with Frost in his performance of the duties of consul. The plaintiffs excepted to the order of the trial judge refusing the application of the plaintiffs and granting the prayers for injunction contained in the answer and cross-petition of the defendants. This court, in a decision reported in 134 Ga. 405 (67 S. E. 849), reversed the judgment of the trial judge, “because the court erred in granting an interlocutory injunction on the cross-petition and refusing to enjoin the defendants in the original petition.” On the ¿remittitur from this court, the court below entered a judgment making the judgment of this court its judgment, “without prejudice to the right of defendants, or either of them, to amend their pleadings and present such additional prayers for relief as they may desire.” After this judgment was entered, Frost filed an amendment to the original answer made by him and the other defendants in the nature of a cross-petition, alleging, among other things, that he had a contract with the order as consul whereby for certain services he was to have a specified ¡part of certain fees to be paid by members until December 31, 1919; that the effort to displace him as consul was not in good faith; that there was no cause for his suspension, and it was sought to be effected without any notice to him and without giving him any opportunity to be heard, and that his attempted suspension was otherwise illegal and without authority. Frost also prayed that certain funds in the hands of the order be impounded. The trial judge granted an injunction against the suspension or -removal of Frost and against other named acts of the defendants to the cross-petition and impounded certain funds claimed by Frost to belong to him under his contract. To this order the plaintiffs in error excepted.

One of the main contentions of the plaintiffs is, that the application of Frost for the last injunction was an application for a second injunction to restrain the same acts which the application in the original answer and cross-petition of Frost and others sought to enjoin, and, being based on facts in existence and known to Frost when the first application was made, the same should not have been granted. We think that this- contention is sound, and that, the court erred in granting the last injunction. In the original answer of Frost and others it was alleged that the action of the Council . in suspending Frost was illegal, and that the power of amending the constitution and by-laws and suspending members or officers was vested alone in the incorporators until the household met, and that the latter had never convened. It was further alleged that the incorporators had by resolution declared the action of the council in suspending Frost to be illegal and had declared him to be vested with the power of consul, and prayed that Binford and others be enjoined from interfering with the action of the incorporators. The effect of granting this prayer of Frost and the other defendants was to enjoin Binford and others claiming to be the council from suspending Frost or interfering with him as consul; and the injunction granted by the trial judge, restraining Binford from assuming to exercise the duties of Viceroy or Eminent Consul and restraining the other parties defendant from interfering with the performance by Frost of the duties of Eminent Consul, had this effect. The act sought to be enjoined in the original answer, and the one that was actually enjoined thereunder, was one of the same acts sought to be enjoined in the amendment, wherein it was prayed that Binford and others “be enjoined from undertaking to enforce their effort to suspend this defendant from the exercise of the duties of Eminent Consul,” The opening sentence in the statement of facts in the report of this case in 134 Ga. 405 (on p. 406), is-as follows: “The ease involves a contest over the right of J. B. Frost and others, who are named as defendants, on the one hand, and L. T. Binford and others, who were made parties by the cross-petition, on the other hand, to participate in the control of a certain institution known as the Eminent Household of Columbian Woodmen.” In the opinion (pp. 413, 414), it was said: “For the reason indicated, there was no authority of law for the petitioners for incorporation, in 1909, to take legislative control of the corporation. It follows that the defendants named in the original petition were unauthorized to do the things complained of, and should have been enjoined. . . It also shows that the things complained of in the answer in the nature of a cross-petition .were being done by them [Binford and other members of the Council] in the exercise of official authority conferred by the constitution and by-laws. There was no dispute of fact involved, the controlling question being as to their authority to do the things which they were attempt ing to do. As they were acting within the limits of their authority, it was erroneous to enjoin them.” The decision in 134 Georgia only decided that the council and not the incorporators had the right of suspension of officers and the administrative and legislative control of the order until the Household met. Considering that the only question involved in the case as it there appeared before this court was whether the council or the incorporators had the control of the order with reference to the matters involved in the case (one of which involved the power to suspend an officer), this court held that such control and power was not in the incorporators, but was in the council. The question whether the power to suspend Frost, and other powers, were in the incorporators, or in the council, was considered the only one made, and was the only one decided in that case. It was there considered that Frost and his codefendants did in their original answer and cross-petition seek to enjoin the council from suspending him on the ground that the council had no such authority, but that power existed in the incorporators. If Frost could, after the decision of this court, amend his answer and file a cross-petition asking that if the council and not the incorporators had the power of suspending him from office, its action in undertaking to do so be declared illegal, and the members of the council be enjoined because of his contract and because the attempted suspension was without notice to him or a hearing being accorded him, and for other reasons, he could have sought injunction on these grounds in the original answer and cross-petition filed by him and others and before the first injunction was granted by the trial judge. The facts on which he seeks the second injunction existed and were known to him when he filed his first application for injunction, and.it was error to entertain and grant the second application against his removal or suspension. In this connection, see Conwell v. Neal, 118 Ga. 624 (45 S. E. 910); Blizzard v. Nosworthy, 50 Ga. 514, 520; 35 Cent. Dig., “Motions,” section 53 et seq. In the case of Savannah Railway Co. v. Postal Telegraph Co., 113 Ga. 916 (39 S. E. 399), the court (on p. 919) said: “The right of the railway company to present a second application for injunction seems, under these decisions, to be unquestioned; but such an application is addressed to the discretion of the judge, which ordinarily should not be exercised in granting the second application, unless it is based upon grounds which were not known and could not have been discovered by the exercise of reasonable diligence at the time the first application was made. Not only was every ground upon which the second application in the present case is based known to the railway company at the time the first application was made, but some of them were actually presented in the pleadings as reasons for granting an injunction, and there was an effort, though ineffectual, to present every question that is now presented. Under such circumstances the judge not only did not abuse his discretion in refusing the application, but the grant of an injunction would have been entirely unwarranted.” Counsel for Frost urge that the discretion of the trial judge in entertaining and granting a second application of Frost should not be interfered with in this case, because he was the defendant in the litigation; and that while a plaintiff in beginning litigation asking for equitable relief is supposed to be fully prepared as to all matters involving his rights, a defendant is not presumed to be so prepared, but is only bound to prepare himself after the litigation is begun, and for the further reason that the hearing was had at eight o’clock the day after the application of the plaintiff was filed, in order that a hearing and an adjudication might be had before noon of that day —the time set for a meeting of the household. We do not think that these reasons are sufficient to authorize the grant of a second injunction. The defendant was not bound, on the interlocutory hearing, to ask for any affirmative relief in his answer to the attacks made by the plaintiff.' When he asked that persons other than the original plaintiff 'be made parties and that they be enjoined, he and his codefendants stood in the attitude of plaintiffs seeking affirmative relief. If he was not ready for a hearing at the time fixed, he should have asked that the hearing be deferred in order that he might have more time within which to prepare for trial.

The contract between the Eminent Household of Columbian Woodmen and J. B. Frost, a copy of which was attached to the original petition and to the amendment of Frost to the original answer, provided, among other things, the following: The order contracts with Frost “to perform the duties placed upon the Eminent Consul,” as they now or may hereafter exist under the constitution and by-laws of the order, part of which duties were set forth. It was recited, that, according to the constitution and by-laws, each member admitted to the order has to pay “a membership fee of four dollars, and afterwards he is to contribute to the field work and promulgation fund one dollar per month for twelve months during the first year of his membership, seventy-five cents per month during the second year of his membership, fifty cents per month during the third year of his membership, and twenty-five cents per month during the fourth year of his membership. The payments thus to be made are known as the field work and' promulgation fund. Out of this fund is jto be paid such sums as by contract are allowed to consuls-general engaged in field and piomulgation work, who have been employed and commissioned under the conditions herein prescribed, and to local men who may be employed to increase the membership of households, or to households for such work.” In consideration of services previously rendered and to be rendered in the future by Frost, and other considerations, including “the performance of the duties under this contract,” the •contract provided: “After deducting the charges placed upon the membership fees and the field and promulgation fund in this manner, the party of the first part hereby agrees that the said J. B. Frost shall receive as compensation all of the said entrance fees and all of the field work and promulgation fund from each guest during the 1st, 2nd, and 3rd years of his membership; that is, $(1.00 per' month for- twelve monthly installments, seventy-five cents per month for the next twelve monthly installments, and fifty cents per month for the next twelve monthly installments.” The contract was dated May 2, 1904, and was to be binding until December 31, 1919. The contract provided that each member admitted to the order should pay a membership fee of $4, and should afterwards contribute to the field work and promulgation fund $1 per month for the first year after he became a member, 75 cents per month during the second year, and 50 cents per month during the third year, and that after deducting certain charges placed upon such fees and fund, Frost was to receive as compensation all of such fees and fund. If this contract should on a final trial be upheld, after deducting the charges placed on the fees and funds paid by members procured under the contract by Frost prior to his suspension from office, he would have such an interest in the remainder of the fund arising from membership fees and fees paid by such members to the field and promulgation fund during the first three years of membership as to warrant the action of the court in impounding and enjoining the disposition of the funds received by the order from this particular source. The contract appears to be one with Frost as consul; and after .he was suspended from that office and ceased to hold the same, he would have no right to perform the duties imposed upon him by the contract, as the right of Frost to' perform the duties placed upon him by the contract was an incident to his continuing in the office of consul. As it was error to enjoin the suspension of Frost by Jthe council, it was error to impound and enjoin the disposition of funds which would in future be paid by members whose membership in the order was procured after Frost was suspended from the office of consul. "Whether or not Frost was entitled to an injunction to prevent interference with his holding the office and performing the duties of consul, and whether or not he was entitled to any relief with respect to future moneys received by the corporation on account of his contract with it, or with respect to any of the matters referred to in the second injunction granted, except that pertaining to the fund claimed to be on hand and to belong to Frost, are questions which are determinable alone from the pleadings and other parts of the record aside from the evidence; and with respect to these matters it is unnecessary to consider the evidence introduced upon the hearing. Our decision with reference thereto would be the same, even though we should disregard the evidence in the case, as requested to do by counsl for the defendants in error, on the ground that it is not properly briefed. To determine whether the court erred in impounding the $20,000 claimed by Frost to be on hand and to belong to him under his contract, and enjoining the disposition of this fund by the defendant, it is necessary to look to the evidence. Under the pleadings and the evidence, we do not think the court abused his discretion in impounding this'fund and enjoining its disposition; but the court committed error in granting the other relief prayed for by the defendant Frost, except as to the impounding and as to the injunction against the disposition of the- membership fees and the field and promulgation fund paid by members (referred to below) during the first three years after they were admitted (less the charges placed' thereon under the terms of the contract) and received after the injunction was granted from members procured under the contract by Frost prior to his suspension from office. Direction is given that tbe judgment of the lower court be so modified as to conform to this ruling.

Judgment in part reversed, and in part affirmed, with directions.

All the Justices concur, except Lumpkin, J., disqualified.