Liederkranz Singing Society v. Turn-Verein

29 A. 918, 163 Pa. 265, 1894 Pa. LEXIS 1177

• Court: Supreme Court of Pennsylvania
• Decided: July 12, 1894
• Docket: Appeal, No. 433
• Status: Published

Opinion

Opinion by

Mb. Justice Mitchell,

It is conceded that in cases of unincorporated associations whose membership is large, suits may be brought by some of the members in their own names on behalf of, or as representing all. The present action therefore would have been sustainable if brought in the name of Ostermayer and others in behalf of the members constituting The Liederkranz Society. It was brought in the name of The Liederkranz Society by Ostermayer et al. There is no substantial difference. The allowance of suits in any such form is a modification of the ordinary requirements as to parties, introduced by equity in the interest of practical convenience. “ The second class is where the parties form a voluntary association for public or private purposes and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be even if practicable exceedingly inconvenient.” Story, Equity Pleadings, sect. 107. It is necessary that the suit should be brought on behalf of all the parties in interest, but this may as well be done in substance by using the general name which describes them all, as by the phrase “in behalf of themselves and all others interested.” The latter is the usual form, and it is always better to adhere to established practice, but there being no plea in abatement here, the common interest of the parties being substantially expressed on the record, and there being individual plaintiffs responsible for costs, the case was not in position to be nonsuited for want of parties.

• Unincorporated societies have long held in this state an intermediate position between corporations and partnerships. Those for religious purposes, it is said by Lowrie, J., in Phipps v. Jones, 20 Pa. 260, “have always, and especially since the act of 1731, been recognized as having an associate and quasi corporate existence in law.” Their ownership of property is of the same intermediate character. It partakes of the qualities of both the others, the title being for many purposes joint and several like that of partners or joint tenants, while the right of possession is joint only as in corporations. Where the question of the right of present possession arises it must be decided by the constitution and by-laws of the association, or in the absence of any sufficient provision therein for such a case, by the majority. That is the real issue here. The plaintiffs claim the right to represent the association in the possession of the property sued for. If they can establish it they will be entitled • to the verdict, if not they must fail.

Judgment reversed and procedendo awarded..