Johnny YOUNGBLOOD
v.
Thelma BRIGHT, International Ladies Garment Workers Union, and Nick Bonano.
No. 97.
Supreme Court of North Carolina.
February 29, 1956.*561 Cahoon & Alston, Greensboro, for defendant, appellant.
Williams & Williams and William C. Morris, Jr., Asheville, for plaintiff, appellee.
BOBBITT, Justice.
A voluntary appearance whereby a defendant obtains an extension of time in which to plead, is a general appearance. Wilson v. Thaggard (Stone v. Thaggard), 225 N.C. 348, 34 S.E.2d 140, and cases cited. "A general appearance waives any defects in the jurisdiction of the court for want of valid summons or of proper service thereof." Winborne, J., in In re Blalock, 233 N.C. 493, 504, 64 S.E.2d 848, 856, 25 A.L.R. 2d 818. Defendant Union, by its general appearance, has waived any irregularity in or lack of service of process.
True, the Act of 1951, ch. 245, Session Laws of 1951, now codified as G.S. § 1-134.1, provides that other motions or pleadings presented simultaneously with the objection that the court has no jurisdiction over the person or property of the defendant shall not operate as a waiver of such objection; but the proviso in this statute explicitly declares "that the making of any motion or the filing of answer prior to the presentation of such objection shall waive it." (Italics added.) Defendant Union interposed no objection to the jurisdiction of the court until after it had applied for and had obtained an extension of time in which to plead.
It is apparent that the order of the court below was predicated solely on the ground that the general appearance by defendant Union dispensed with the necessity for service in compliance with the method prescribed by the Act of 1943, ch. 478, Session Laws of 1943, now codified as G.S. § 1-97(6). In so ruling, the court was correct. However, this alone was not determinative. The "special demurrer" of defendant Union, as indicated by appellee's brief, was treated solely as a demurrer to the court's jurisdiction "over its person." This pleading, in addition, challenged the jurisdiction of the court on the ground that defendant Union was not subject to suit as a separate entity under G.S. § 1-97(6). No evidence was considered or offered, and no findings of fact were made, bearing on this question.
Appellant is an unincorporated labor union. The pleadings so declare. At common law, an unincorporated association, having no existence separate and distinct from its members, cannot sue or be sued as a legal entity. This rule of the common law has been applied to unincorporated labor unions. Tucker v. Eatough, 186 N.C. 505, 120 S.E. 57; Citizens' Co. v. Asheville Typographical Union, 187 N.C. 42, 121 S.E. 31; Hallman v. Wood, Wire & Metal Lathers' International Union, 219 N.C. 798, 15 S.E.2d 361.
Except as modified by statute, the common law rule prevails. Ionic Lodge, etc., v. Ionic Lodge Free Ancient & Accepted Masons, 232 N.C. 648, 62 S.E.2d 73, where petition to rehear, 232 N.C. 252, 59 S.E.2d 829, was allowed; Stafford v. Wood, 234 N.C. 622, 68 S.E.2d 268.
The question now posed is whether the status of defendant Union is such that it was subject to suit under the provisions of G.S. § 1-97(6). The method of service *562 prescribed by this statute is applicable only to an unincorporated association that is subject to suit under the terms thereof. As interpreted in Stafford v. Wood, supra, this statute does not modify the common law rule so as to authorize a suit against an unincorporated labor union unless it is doing business in North Carolina in the sense of performing in this State the acts for which it is formed.
The Act of 1955, ch. 545, Session Laws of 1955, "in full force and effect from and after July 1, 1955", explicitly provides that unincorporated associations "may hereafter sue or be sued under the name by which they are commonly known and called, or under which they are doing business, to the same extent as any other legal entity established by law and without naming any of the individual members composing it." (Italics added.) It has no application to actions such as this, commenced prior to its effective date.
It was necessary to decision that the court consider evidence and find the facts as to whether defendant Union was doing business in North Carolina by performing acts in this State for which it was formed. Whether the facts alleged in the verified complaint, as to the presence and activities of defendant Union in North Carolina, if found to be true, would constitute doing business in this State within the meaning of G.S. § 1-97(6), is a question not now before us.
It appears that the order was entered under a misapprehension of the law as to this feature of the case. Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242; Morris v. Wilkins, 241 N.C. 507, 85 S.E.2d 892. Hence, the order will be set aside and the cause remanded for further hearing in accordance with this opinion. It is so ordered. Upon further hearing, the pleading of defendant Union may be treated as a motion to dismiss for lack of jurisdiction, on the ground that defendant Union was not subject to suit as a separate entity under G.S. § 1-97(6).
Error and remanded.