1. The court did not err in overruling the general motion to dismiss on behalf of all of the defendants.
2. The evidence was insufficient to sustain the granting of any relief as against the unincorporated union or association.
3. The evidence was sufficient to show that two of the original defendants, who were served, and who had notice of the restraining order, had violated its terms, but insufficient to show that the other three defendants had notice of the restraining order, and had wilfully violated it.
The Woodman Company, Inc., filed a petition for equitable relief. It was alleged that: The defendants "are the Atlanta District Lodge No. 46 of the International Association of Machinists, an unincorporated association of persons whose interest may be represented by the defendants Jesse Baker, . . . William Hayes, . . . Sam Spence, . . . members thereof. Also named as a defendant is T. Scott Walters, an officer of the defendant union." The defendant union has never been certified as the bargaining representative for the employees of the plaintiff. The defendant union and the individual defendants have "illegally established a picket line at two entrances to the plaintiff's plant and have encouraged and caused a mob of employees and nonemployees of the plaintiff to gather about the entrances to the plaintiff's plant and have created a threat by their verbal abuse and mass presence to the employees of the company desiring to report for work, which action has intimidated and caused many workers who wished to work to stay away from their job." The mass illegal picketing is causing truck drivers to refuse to serve the plaintiff. It is a threat against all employees of the company, its customers and suppliers, and is conducted for the illegal purpose of intimidating employees, and preventing the plaintiff's customers and suppliers from doing business with the plaintiff. The action of the defendants is part of an illegal conspiracy to cause the plaintiff to bargain with a union not certified by the National Labor Relations Board and to coerce employees of the plaintiff into joining a union to which they do not wish to belong.
The prayers were: for process; that the defendants be temporarily and permanently enjoined from picketing the plaintiff's plant with more than two pickets at more than two entrances at any one time, and from gathering in any groups within 1,000 feet of the plaintiff's plant; "from making any threats against the plaintiff's employees, customers or other persons carrying on business with the plaintiff, and from intimidating or seeking to intimidate any employee from reporting to his job"; and for other relief.
A temporary restraining order was issued, restraining "each of the defendants, each and every member of the union herein named and each other party with knowledge of this order . . . from picketing the plane of the plaintiff with more than one picket on each of four placards, plus one additional non-placard-carrying picket . . . from gathering in groups within 1,000 feet of the plaintiff's plant," and from intimidating, or seeking to intimidate, employees and the operators of trucks picking up or delivering merchandise to the plaintiffs.
The cause came on for interlocutory hearing, at which time the defendants made a motion to dismiss in the nature of a general demurrer, which was overruled. At the conclusion of the hearing, the court refused to dissolve the previous temporary restraining order, but continued it in full force and effect. In case No. 19798 the defendants except to the overruling of their motion to dismiss, and to the judgment continuing in effect the previous restraining order.
The two cases are so interwoven as to require but one opinion by this court.
1. Where a petition is fatally defective in that it does not set forth a cause of action, it may be attacked by oral motion to dismiss in the nature of a general demurrer at any time before verdict. Gibbs v. Forrester, 204 Ga. 545
, 549 (50 S. E. 2d 318); Pearson v. George, 209 Ga. 938
, 946 (77 S. E. 2d 1); Bennett v. Rewis, 211 Ga. 507
, 509 (87 S. E. 2d 52).
An unincorporated voluntary association is not such a legal entity as to be subject to suit under the laws of this State. Walker v. Grand International Brotherhood of Locomotive Engineers, 186 Ga. 811, 819 (199 S. E. 146), and citations. See also Board of Education of Baker County v. Hall, 189 Ga. 615 (7 S. E. 2d 183); Howard v. Betts, 190 Ga. 530 (9 S. E. 2d 742).
In the present case the plaintiff alleged that the unincorporated association of persons might be represented by the defendants Jesse Baker, William Hayes, and Sam Spence, "members thereof." Whether or not the petition was sufficient as a class action under Code 37-1002, and the decisions of this court, need not be determined on the motion to dismiss. Stripped of all conclusions, the petition is sufficient to state a cause of action against the individual defendants Sam Spence, William Hayes, and Jesse Baker, who were named as defendants, and who were duly served. A general demurrer, or a motion to dismiss in the nature of a general demurrer, will not be sustained where the petition states a cause of action for any of the relief prayed against any of the defendants named therein.
The Atlanta District Lodge No. 46, being an unincorporated association of persons, might have demurred specially to its joinder with persons named as individual members. O'Jay Spread Co. v. Hicks, 185 Ga. 507, 513 (195 S. E. 564). This was not done, and it was not error for the court to overrule a general motion to dismiss on behalf of all the defendants, since the petition did state a cause of action for relief against the individuals named therein.
2. The uncontradicted evidence established that Jesse Baker, William Hayes, and Sam Spence, alleged to be members of Atlanta District Lodge No. 46 of the International Association of Machinists, were not members of the unincorporated labor organization named. Consequently, the plaintiff was not entitled to any relief against Atlanta District Lodge No. 46, since those named as representative of the members thereof have no official connection with, or membership in, such union. It is axiomatic that a class action can not be maintained by suing and serving persons who are not members of the class. The evidence, therefore, is insufficient to sustain the granting of any relief as against the unincorporated association.
3. The evidence of any violation of the temporary restraining order by the defendants Sam Spence and Jesse Baker is not conclusive, and did not demand a finding that these defendants had violated the restraining order. Sam Spence and Jesse Baker were named as defendants, were served, and had notice of the original restraining order; and the evidence is sufficient to sustain the judgment holding them in contempt. This judgment is therefore affirmed.
The other defendants, Bobbie Miller, Andy Nix, and Sam Harris, adjudged to be in contempt of the trial court, were not named as defendants in the petition, were not served with process, and there is no evidence in the record to sustain a finding by the trial court that they had actual notice of the restraining order and wilfully violated it.
The contemptuous violation of a court's order may be punished though the party charged with such violation was not a party to the proceedings. In such a case it must be alleged and proved that the contemnor had actual notice of the order for disobedience of which he is sought to be punished. Carson v. Ennis, 146 Ga. 726, 729 (6) (92 S. E. 221, L. R. A. 1917E 650); Patten v. Miller, 190 Ga. 152, 160 (7) (8 S. E. 2d 786). The rule in Georgia is also the general rule. 12 Am. Jur. 409, 27; 17 C. J. S. 23, 18.
In the present case the testimony of N. W. Heyward, president of the Woodman Company, Inc., to the effect that he mailed copies of the injunctive order to employees whose names appeared on a list, is wholly insufficient to show actual notice. It is not shown that the list referred to was a correct list, or a complete list, that the defendants' names appeared thereon, that the residence and street address of such defendants appeared on the list; and the testimony of this witness was otherwise insufficient to comply with the rules pertaining to notice by United States mail. The judgment of the court holding these three defendants in contempt, based on an alleged violation of the original restraining order, must be reversed.
There is no merit in the contention that the judgment in the contempt proceeding is not such a final judgment as may be reviewed by this court. Odom v. McDilda, 155 Ga. 688 (117 S. E. 649).
Judgment affirmed in part and reversed in part in both cases. All the Justices concur.