This case was formerly before the Supreme Court, and its decision is reported in 76 Tex. 552. It was there held, that a mandamus to compel the defendant to reinstate the plaintiff as one of its members should be denied, because it appeared from the allegations of the petition that plaintiff had a remedy by appeal to the association from the action of its board of trustees expelling him therefrom. It was said in the opinion: "We think it matters not that the order of expulsion may have been contrary to law and void, and such as this court would not hesitate to annul in case there was no appeal within the association. The point is, that it was the action of the tribunal created in accordance with the constitution, and appellee had an adequate remedy by appeal within the society itself." The court concluded that the exception to so much of the petition as sought a mandamus should have been sustained.
Plaintiff, after the cause was remanded to the court below, amended his petition, still seeking a mandamus as well as damages for the wrongful expulsion, but added nothing sufficient to cure the defect which had been held fatal to his prayer for mandamus. A general demurrer and special exceptions to the petition were urged by defendant, the latter on the ground which had been held good by the Supreme Court, and also on the further ground that there was an improper joinder of action for mandamus and for damages. The court sustained the general demurrer and special exceptions, and upon plaintiff declining to amend, dismissed the suit.
Under the former decision we must hold that the exceptions to the petition, so far as it sought a mandamus, were properly sustained. Whether or not additional facts, as to the illegality of the proceedings by which plaintiff was excluded from membership in the defendant, are alleged in the amended petition now before us, we can not say, as we have not access to the petition on which the former appeal was decided. But none that could be stated would more than show the nullity of those proceedings; and that, as appears from the quotation above, would not meet the objection. It still appears that plaintiff could have appealed to the society from the decision of its board.
It does not follow, however, that the cause should have been dismissed. The former opinion does not hold that plaintiff has no other remedy than an appeal to the association, but that the existence of that remedy precludes a resort to the writ of mandamus, because that is allowed only as a last resort. It does not hold that the decision of the board of trustees, under the facts alleged, is binding until reversed by the society. If the allegations of the petition be true, there can be no doubt that the attempted expulsion was void, and could furnish no defense to the association in depriving plaintiff of his rights as a member.
He could therefore maintain an action for damages sustained, the proceedings resulting in his expulsion being null, and the petition alleges *Page 68 facts sufficient to entitle him to such relief. Ludowski v. Polish Society, 29 Mo. App., 337.
Whether an action for mandamus could properly be joined with one for damages in such cases or not, his petition did not entitle him to the former remedy, and the exception should have been sustained to the part which was bad and overruled as to that which was good.
Reversed and remanded.