(concurring in part and dissenting in part).
I concur in so much of the opinion as declares that there was sufficient evidence to support the finding and decree that appellant’s use in its name of the words “Free and Accepted” should be enjoined.
I dissent (1) from so much of it as seems to find that the plaintiff has, while the defendant has not, a warrant or charter from any recognized Masonic body, and (2) from so much of it as affirms the amendment to the decree which enjoins the defendant from using in its orders, by-laws, etc., the word “Masons”.
I dissent as to the first ground because, as I read the record, there is no basis in the evidence or in the trial court’s findings for the view that plaintiff is, and defendant is not, “a legally existing Masonic organization according to Masonic history and jurisprudence.”
The evidence does show, and the district judge does find “that neither the plaintiff nor the York Masons recognized the defendant as being legally organized and constituted because it has no writ, warrant, or charter from a superior legally existing body”, but the evidence does not show and the district judge does not find that the plaintiff has any such writ, warrant, or charter. As a matter of fact the court finds that both plaintiff and defendant trace their legal origin to a charter issued by a state court. The plaintiff was granted a charter in Georgia by the Superior Court of Chat-ham County in 1890. The defendant was granted one by a court of competent jurisdiction for Jefferson County, Alabama, under the name “Free and Accepted Colored Masons of America”.
I dissent as to the second ground, the affirmance of the amendment enjoining defendant from using the name “Masons” because there is not in the record, in my opinion, or in the findings of the district judge any basis whatever for *159depriving defendant of the right granted it by the Alabama court to use the word “Masons”, a right accorded them by the Alabama Court and which they have enjoyed in Georgia by actual use for nearly thirty years.
The thrust of plaintiff’s suit, its whole evidence, was not against the use of the word “Masons”, it was against the use of the words, “Free and Accepted”. The findings of the judge were not directed against that use, indeed he found that the York Masons and defendant were well disposed toward each other, and he advised that they seek to consolidate.
The amendment to the decree which was the result of the filing by defendant, not plaintiff, of a motion for new trial, appears to me to be made out of the whole cloth, without evidence or finding to support it, and contrary to both defendant’s legal and equitable right to use the name.
As the district court finds, the defendant came into existence about the year 1917, when a group of six or eight persons said to be Master Masons, met and organized. All that he could say for plaintiff was “That plaintiff and its claimed legitimate predecessors, although often not using the exact name presently used, has had a favorable and continuous existence in America since the year 1796.”
It seems to me in the light of the rule the opinion lays down, that “a warrant or charter from a recognized Masonic body would be required in order to constitute a legally existing Masonic organization according to Masonic history and Jurisprudence” (if that has anything to do with the case), it is the pot calling the kettle black when the plaintiff calls the defendant illegitimate.
Upon this record and findings, it seems to me that the claim of bar sinister has no place in this case, and especially not in the left handed way it came in by the granting of an injunction on a motion for a new trial without request made for it and without evidence or finding to support it.
I respectfully dissent.