Schiller Commandery No. 1 v. Jaennichen

Michigan Supreme Court

Schiller Commandery No. 1 v. Jaennichen

74 N.W. 458, 116 Mich. 129, 1898 Mich. LEXIS 655

CourtMichigan Supreme Court

DecidedMarch 15, 1898

StatusPublished

Cited by12 cases

This text of 74 N.W. 458 (Schiller Commandery No. 1 v. Jaennichen) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schiller Commandery No. 1 v. Jaennichen, 74 N.W. 458, 116 Mich. 129, 1898 Mich. LEXIS 655 (Mich. 1898).

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Opinion

Montgomery, J.

(after stating the facts). The withdrawal of the 400 members did not change the identity of the association. The remaining members represented the society, and were entitled to retain the property. Sommers v. Reynolds, 103 Mich. 307; 1 Bac. Ben. Soc. § 38a. The Schiller Commandery No. 1, United Friends of Michigan, was, under the facts stated in the record, [131]*131clearly entitled to the fund on hand at the time of the withdrawal of the 400.

The question is whether the incorporated body is legally identical with the previously-existing voluntary association. The incorporation of the body appears to have been made in accordance with the provisions of Act No. 119 of the Public Acts of 1893, which provides that the voluntary association may become a body corporate if two-thirds of the members present and voting at any regular meeting shall vote in favor of such incorporation. The statute further provides that, when the requirements named in the statute are complied with, such subordinate body shall be a body corporate by the name expressed in the articles, and by that name be a person in law capable of suing and being sued in the courts, and taking and holding property of every kind, the same as natural'persons. The question for decision is whether this act, so far as it relates to associations formed before and existing at the time of its enactment, is operative to vest in the corporation funds belonging to the previously-existing association, where, as in this case, the action to incorporate was not unanimous. We think this question is ruled in the negative by Mason v. Finch, 28 Mich. 282. It should be noted that the record fails to show that the remaining members of the association, the 30 who did not participate in the attempt to incorporate, acquiesced in the action taken. If such affirmative showing had been made, quite a different question would have been presented.

The judgment will be affirmed.

The other Justices concurred.

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Montgomery, J.

(after stating the facts). The withdrawal of the 400 members did not change the identity of the association. The remaining members represented the society, and were entitled to retain the property. Sommers v. Reynolds, 103 Mich. 307; 1 Bac. Ben. Soc. § 38a. The Schiller Commandery No. 1, United Friends of Michigan, was, under the facts stated in the record, [131]*131clearly entitled to the fund on hand at the time of the withdrawal of the 400.

The question is whether the incorporated body is legally identical with the previously-existing voluntary association. The incorporation of the body appears to have been made in accordance with the provisions of Act No. 119 of the Public Acts of 1893, which provides that the voluntary association may become a body corporate if two-thirds of the members present and voting at any regular meeting shall vote in favor of such incorporation. The statute further provides that, when the requirements named in the statute are complied with, such subordinate body shall be a body corporate by the name expressed in the articles, and by that name be a person in law capable of suing and being sued in the courts, and taking and holding property of every kind, the same as natural'persons. The question for decision is whether this act, so far as it relates to associations formed before and existing at the time of its enactment, is operative to vest in the corporation funds belonging to the previously-existing association, where, as in this case, the action to incorporate was not unanimous. We think this question is ruled in the negative by Mason v. Finch, 28 Mich. 282. It should be noted that the record fails to show that the remaining members of the association, the 30 who did not participate in the attempt to incorporate, acquiesced in the action taken. If such affirmative showing had been made, quite a different question would have been presented.

The judgment will be affirmed.

The other Justices concurred.

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Bluebook (online)

74 N.W. 458, 116 Mich. 129, 1898 Mich. LEXIS 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiller-commandery-no-1-v-jaennichen-mich-1898.

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