Before DUFFY, Chief Judge, HASTINGS and KNOCH, Circuit Judges.
HASTINGS, C.J.: This action was brought by the appellant, Morgan Drive Away, Inc.*fn1 (herein called plaintiff), in the United States District Court for the Southern District of Indiana. The defendants (appellees) are the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called International Union), and the various named joint councils, state and area conferences, and local unions of the International Union as such and each as a representative of all other defendants. Also named as individual defendants in the complaint were Gene San Soucie, Alfred W. Cors and William H. Jones. The district court dismissed the complaint as to these three individual defendants and no question is raised on this appeal as to such dismissal.
The first paragraph of complaint is based on Section 303 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 187, and seeks damages for an alleged illegal secondary boycott by defendants. The second paragraph of complaint is based on Section 301 of said Act, 29 U.S.C.A. § 185, and seeks damages for breach of contract.
The trial court first entered a judgment dismissing the second paragraph of complaint on the ground that it failed to state a claim upon which relief could be granted. Subsequently, after a trial on the preliminary question of jurisdiction over International Union and Joint Council No. 43, the court then entered a second judgment dismissing the action as to such two defendants on the ground that the court did not have jurisdiction over them, ruling that no legal process or summons was served upon any of their officers or agents, and that they had not voluntarily submitted to such jurisdiction. These two judgments are the subject of Appeal No. 12537 herein.
Later, in order to rule on the admissibility of plaintiff's Exhibits X and Y, the trial court set aside its judgment of dismissal as to the International Union and Joint Council No. 43, ruled that such Exhibits X and Y were inadmissible and re-entered the same judgment of dismissal as to International Union and Joint Council No. 43. This judgment is the subject of Appeal No. 12538 herein. Since the two appeals involve the same action they will be considered here as one appeal.
We have before us appellees' motion to dismiss this appeal. Such motion is denied. Ordinarily, it is true, an order of dismissal as to some of a number of defendants charged to be jointly liable is not a final order and is not appealable when the suit remains pending against the others. Hardy v. Bankers Life & Casualty Co ., 7 Cir., 222 F.2d 827 (1955). We are of the opinion, however, that, on the record before us, the jurisdictional question presented to and ruled upon by the trial court in the preliminary trial, held upon motion of appellees, goes to the heart of the instant suit; and we hold that that order of dismissal is a final and appealable order. Cf. Higgins v. Shenango Pottery Company, 3 Cir., 256 F.2d 504 (1958).Indeed, the plaintiff's basic contention is that the suit is brought against one Union, of which those defendants served, the International Union and Joint Council No. 43 are constituent parts. We will address ourselves to this question herein. We also hold that the order dismissing the second paragraph of the complaint is final and appealable.
Turning to the merits, errors relied upon arise out of the judgment of dismissal of the second paragraph of complaint, the judgment of dismissal of the entire action as to the International Union and Joint Council No. 43 and the exclusion from the evidence of plaintiff's Exhibits X and Y.
Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the trial court found the facts specially and stated separately its conclusions of law thereon on the issue of jurisdiction over International Union and Joint Council No. 43. These appear in the well-considered memorandum opinion of that court reported at 166 F. Supp. 885, together with the complaint, motions to dismiss and various answers. For the sake of brevity reference is made to that opinion for such detailed matter.
Subsections (c), (d) and (e) of Section 301 of the Labor Management Relations Act of 1947 are incorporated by reference into Section 303 of the Act, upon which the first paragraph of complaint is based, and read as follows:
"(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.
"(d) The service of summons, subpoena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization.
"(e) For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling."
The first question presented is whether, under the foregoing applicable statute, the trial court had jurisdiction over the International Union and Joint Council No. 43.Plaintiff's contention on this issue can best be stated by quoting its "Summary of Argument" from its brief:
"The District Court has jurisdiction of the International Brotherhood of Teamsters and Joint Council No. 43 of the ...