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Cox v. Shupe

MAY 28, 1963.

MARY COX AS ADMINISTRATOR OF THE ESTATE OF DEAN COX, DECEASED, PLAINTIFF-APPELLANT,

v.

FRANK SHUPE, JACK HOGUE AND LLOYD GUMBRELL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Edwards County; the Hon. ROY O. GULLEY, Judge, presiding. Affirmed.

HOFFMAN, JUSTICE.

This case comes to this court on the pleadings. It stems from an attempt by plaintiff to place dram shop liability upon an unincorporated association of individuals who operated a bar as the "Albion Moose Lodge."

A certain individual who is alleged to have become intoxicated at the lodge collided with and killed plaintiff's intestate on August 29, 1955. Thereafter, plaintiff "fought the jungle of the unincorporated association" through four amended complaints over a period of 7 years in an effort to bring her action to court.

Plaintiff's first complaint was filed February 3, 1956 against Albion Moose Lodge, a corporation. This complaint was stricken upon a showing that the lodge was merely an unincorporated association of individuals. Plaintiff's first amended complaint was filed on June 5, 1956 against Frank Shupe, Jack Hogue and Lloyd Gumbrell, "Trustees of Albion Lodge No. 621, Loyal Order of Moose." The trustees moved against this complaint on the grounds that they were not the owners of the real estate and that there were other necessary parties to the suit. This motion was denied on October 15, 1956, but a subsequent motion to strike as surplusage the words "Trustees of Albion Moose Lodge No. 621, Loyal Order of Moose" was allowed on January 21, 1957. This left a complaint against Shupe, Hogue and Gumbrell, individually, charging them with the ownership of the dram shop, and said individuals shortly thereafter filed an answer.

On October 7, 1957 plaintiff moved to file a second amended complaint so as to make all members of the lodge (except Shupe, Hogue and Gumbrell) parties defendant as "Unknown Members of Albion Moose Lodge No. 621, Albion, Illinois, a voluntary unincorporated association of individuals." This motion was denied November 12, 1957.

On March 14, 1958, plaintiff obtained cancellation of a trial setting and was granted leave to file a further amended complaint, and, on July 1, 1958 plaintiff's second amended complaint was filed. This complaint contained three counts, Counts I and II praying "Judgment jointly and severally against the defendants Frank Shupe, Jack Hogue and Lloyd Gumbrell, Trustees of the Albion Moose Lodge No. 621," etc. The third count was designated a "Separate Action in Chancery" which alleged that the association members were too numerous for personal service and for that reason plaintiff had no adequate remedy at law. It charged that the action could be defended on behalf of the entire membership by Shupe, Hogue and Gumbrell, Trustees, and prayed that service upon the association members be excused and that the judgment sought be a lien upon the association premises. Defendant trustees moved against this complaint by alleging that necessary parties were omitted and defendants were not proper parties. This motion was allowed, and the second amended complaint was stricken on July 28, 1958.

The third amended complaint was filed February 16, 1959. It contained three counts at law and a separate one in chancery. For the first time the bartender at the Lodge, who was also a member, one Joseph Woods, was sought to be made a defendant, and he was duly served individually. The counts at law prayed for judgment against the individual defendants. The chancery action alleged that plaintiff was in doubt as to whom she was entitled to seek redress from, that it would be impractical to bring all members of the association before the court, that some members were unknown, and that plaintiff had no remedy except in chancery. It was further alleged that the four individuals, Shupe, Hogue, Gumbrell and Woods, were representative of the membership and that the members could be adequately defended by these individuals. Plaintiff prayed as before.

The defendants moved to strike this third amended complaint upon the grounds that it did not show that defendants were legally responsible for the acts of the Lodge, or that they had any right or duty to represent the membership, and that there was a lack of necessary parties. Defendants further argued that because the statute of limitations had run, additional parties could not be added. These motions were argued and taken under advisement on June 17, 1960, and subsequently allowed by the court on March 17, 1961.

Thereafter, on May 5, 1961, plaintiff moved to file a fourth amended complaint. This complaint was similar to the third amended complaint except that it included an attempt to qualify the bringing in of additional parties defendant under Section 46(4) of the Practice Act. Plaintiff alleged that the previous failure to join Joseph Woods and the Trustees, Shupe, Hogue and Gumbrell, in their trust capacities, was due to inadvertence. It was stated that each of the parties had actual notice of the pendency of the suit. This fourth amended complaint, similarly to the third amended complaint, contained an action at law, and also a separate action in chancery. In the action at law it was stated that the four named defendants, Shupe, Hogue, Gumbrell and Woods, were the beneficial owners of the premises and were representative of the membership of the voluntary unincorporated association. In the chancery action it was alleged that the lodge contained numerous members, that it would be impractical and impossible to bring before the court all members, that the names of all the members were unknown, and that to require the plaintiff to bring in every member would deprive her of her remedy. It further stated that the question was one of common interest and that the individuals named in their individual capacity and as trustees should be considered as representing the entire unincorporated association.

Plaintiff's motion to file this fourth amended complaint was denied on June 29, 1962. Plaintiff then elected to stand upon said motion and declined to otherwise amend, plead or proceed. The court thereupon entered the final order against plaintiff which is now before this court.

In this appeal plaintiff relies upon two points: (1) that the court erred in refusing to allow Joseph Woods to be added as an additional defendant, and (2) that the court erred in denying plaintiff's separate action in chancery.

The defendants contend that the plaintiff was not entitled to add the bartender and was not entitled to add the three trustees in their trust capacities because the statute of limitations had run against them. The plaintiff argues that Section 46(4) of the Practice Act (Ill Rev Stats 1961, c 110, § 46(4)) authorizes the adding of parties even after the statute of limitations had run.

This statute provides that a cause of action against a person not originally named as a defendant is not barred by a statute of limitations if, among other things, failure to join the person as a defendant was inadvertent.

It is clear in the record in this case that the additional defendant, Joseph Woods, was known to the plaintiff as early as June 23, 1956, which was before the statute of limitations had run against him. Likewise, the defendants, in their capacity as trustees were known as early as June 5, 1956 when the first amended complaint was filed against them as "trustees." It was not until well after the running of the statute of limitations that any effort was made to add these parties and the earliest attempt was when the plaintiff filed her third amended complaint on February 16, 1959. This was after the statute of limitations ...


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