I concur in the result of this case for the following reasons: There is only one class of cases in which section 104-3-26, R.S.U. 1933, is available to plaintiff as a means of acquiring jurisdiction of the parties defendant. That is the class of cases wherein plaintiff seeks judgment against two or more persons as a group. If plaintiff should file an action against two or more persons wherein he seeks relief against each as an individual, then each must be served with process or each must enter a general appearance before the court may render a judgment of that nature.
In the present case the case of action is one founded upon group action as distinguished from individual action. Even though each member of each local were personally served with summons, the court could not render personal judgment against the individual, as that would be a decision of a matter not in issue. But each member of each local was not served. Instead only a few were served, to comply with section 104-3-26 above.
The judgment and decree entered in this case had to conform to section 104-3-26, not only by reason of the process of service of summons but also by reason of the issues outlined in the complaint. Any other judgment or decree would have been a nullity.
It is true that in his memorandum of decision the lower court used language indicative of a judgment and decree against the individual in his individual capacity. But in his *Page 99 findings, conclusion, and decree he acts only against defendants in the group capacity, and binds them, if he binds them at all, only to the extent that they may act on behalf of the group, and only to the extent of their joint property.
That being the case, there is nothing from which the lower court can relieve them as individuals as they are not bound in their individual capacities.