The law of this case was settled on the former appeal. The opinion and decision of the trial court adheres closely to the law and seems to have been prepared with assiduous care to award plaintiff only such damages as were the direct and proximate result of his unlawful expulsion as a member of the defendant Local Union No. 971.
After repeated examinations of the record, I cannot affirm the judgment deducible from the trial court's decision. No intelligent opinion can be had of the judgment without first reviewing the facts out of which the case arose. It appears that the plaintiff became a member of Local Union No. 971, hereinafter referred to as the Local, in March, 1923. In July, 1924, the plaintiff was elected as the business agent and delegate to represent the Local in the Builders' and Trades Council of Washoe County, an organization composed of affiliated *Page 337 union crafts in that locality. On that date, to wit, July 1, 1924, the plaintiff was elected to the important office of business agent of said Builders' and Trades Council. In June, 1926, the plaintiff was defeated as a delegate to represent the Local in the Builders' and Trades Council. At a regular meeting of the Local held on September 13, 1926, the plaintiff, in the presence of two members present, gave utterance to certain intemperate and bitter language to show his attitude and disposition toward the Local, its officers and members. The language was as follows: "Why in hell don't they change the name of the S____ of a B____ of an organization from the United Brotherhood of Carpenters and Joiners of America to the Contractors and Petty Politicians Associations?"
In consequence of the plaintiff's utterance a motion in the form of a resolution was made at this meeting for plaintiff's expulsion as a member of the Local for trying to create dissention and working against the harmony of the Brotherhood. The plaintiff openly admitted that a part of the language attributed to him was true, but then and there openly demanded that he be charged and tried in the mode and manner as provided in section 54 of the constitution of the Local for the expulsion of members. In response to his demand, the chairman of the meeting ruled that the member having admitted that a part of the charge preferred against him was true, a trial was unnecessary under the constitution of the Local. Whereupon the motion was put to a rising vote of the members present, who numbered 42 or 45, of a scattered membership of about 130. The motion carried by a vote of 36 for and 5 against expulsion. Notwithstanding the vote of expulsion, the plaintiff continued to hold the office of business agent of the Builders' and Trades Council up to January 25, 1927, showing that his standing as a union man was not affected by his expulsion. On January 25, 1927, the plaintiff voluntarily declined to stand for reelection to the office, giving as his reasons therefor that under the circumstances it would be *Page 338 for the best interests of the labor movement in that locality that he should not continue to hold the office of business agent of the several crafts affiliated with the council. In August, 1927, the plaintiff filed a complaint in the court below, and in September, 1927, filed a lengthy amended complaint, against the several defendants, demanding as damages for his alleged wrongful, willful, malicious, and unlawful expulsion from the Local the sum of $100,000 actual damages and in addition the sum of $100,000 punitive damages. It was ordered, adjudged, and decreed that the plaintiff have and recover from the defendants the sum of $4,000 actual damages.
The appeal is divided into two parts; one, the appeal from the joint judgment for $4,000, and the other from an order denying the appealing defendants' motion for a new trial. I note that the defendant International Brotherhood of Carpenters and Joiners of America is not a party to the appeal, presumably for the reason that it does not appear that it was ever served with summons or appeared in the action. The defendant Local and the individual defendants, in their appeal from the judgment, insist that the evidence is insufficient to support the decision of the trial court and its judgment is against law. I am of opinion that the judgment is against law for several reasons; one, the defendant Local is a voluntary unincorporated association, sued in its common or local name. The general rule of the common law that a voluntary unincorporated association cannot be sued in its common name is recognized in Branson v. Industrial Workers of the World,30 Nev. 270, 95 P. 354. In that case an injunction against the individual members of the organization was affirmed upon the theory that they were sued as representatives of the entire membership of the organization, which was numerous and scattered, but not so in the case at bar. The individual defendants are not sued as representatives of the entire membership of the Local, but in their capacity as individual members of the Local. Therefore, *Page 339 a judgment could not be rendered against the Local merely by name. The judgment as to the Local is obviously coram non judice, and should be vacated as such. Maclay Co. v. Meads, 14 Cal.App. 363,112 P. 195, 113 P. 364.
Whether the judgment against the individuals named as defendants is valid and legal presents a different question. The complaint is only sufficient against them as members sued individually. The complaint charges that the individual defendants as members of the Local participated in the plaintiff's expulsion, which was contrary to common right, a high-handed, arbitrary proceeding equivalent to mob law, and contrary to due course of procedure provided in the constitution and laws of the Local. The trial court's decision and findings refute the charge. The court considered that the plaintiff was largely responsible for his expulsion because of the vituperate attack made by him on the Local and its officers. While the court considered that the members present acted hastily in voting the expulsion of the plaintiff, nevertheless his expulsion was contrary to and in violation of the procedure provided in the constitution and laws of the Local for the expulsion of a member and that the plaintiff was entitled to recover such damages as were the direct and proximate result of his unlawful expulsion. It does not, however, necessarily follow that the court was authorized to render a judgment against the sixteen individual members for the damages occasioned by the act of the majority present in voting for the resolution of expulsion of the plaintiff. Why the sixteen individual defendants, as members of the Local, should have been selected and singled out by the plaintiff in his complaint as being responsible for his expulsion, is a matter of inference and conjecture. No reason appears why the particular individual members should be held liable for the plaintiff's damage any more than the other members constituting the majority who voted for the plaintiff's expulsion. There is no evidence in the record to show *Page 340 that the individual defendants as members of the Local acted in bad faith. On the contrary, in the absence of proof to show that they did so act, the presumption is that the expulsion of the plaintiff was an error of judgment merely or the misinterpretation of the law provided in the constitution of the Local for the expulsion of a member. Furthermore, the judgment in form makes the five voting against the resolution equally liable with the sixteen who joined with the majority in voting the expulsion for the damage occasioned by the plaintiff's unlawful expulsion, as well as the entire membership of the Local.
The result of my consideration of the entire record is that there was no evidence submitted to the court upon which it could possibly and properly find and adjudge that the legal wrong done the plaintiff was the direct and proximate result of the sixteen individual defendants' participation in the expulsion of the plaintiff as a member of the Local. In a case arising, as this, from internal disputes and discords in a labor organization, it is of far higher importance that this court should preserve inviolate the fundamental limitations in respect to jurisdiction, even though it be considered that an expelled member had a cause of action for damages and reinstatement as a member.
Entertaining these views, I decline to affirm the judgment.