“The class action was an invention of equity mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs.” (internal citation omitted)
How later courts described this case
- “The class action was an invention of equity mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs.” (internal citation omitted)
- “The class action was an invention of equity .. . mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs.”
- noting that “the class action was an invention of equity”
- “By Rule 23 the Supreme Court has extended the use of the class action device to the entire field of federal civil litigation by making it applicable to all civil actions.”
Written by the judges who cited it.
The opinion
JOHNSEN, Circuit Judge
(concurring specially).
I am in accord with the majority that the trial court should not have dismissed this action on the complaint, because (1) it was possible for a right to some adjudication through class representation to exist on the facts alleged in the complaint, and (2) in any event it could not be said on the facts alleged that no right to relief could at all exist against the individuals named in the complaint who had been personally served with summons. That is as far as I read the majority opinion to go.
Not to go beyond this may perhaps leave the trial court too much in the dark *189 on what it is expected or is at liberty to do, on a remand of the case, and particularly so in view of the prayer of the complaint. I should not want, of course, to undertake any abstract definition of the (as yet) hazy scope and utility of Rule 23(a) of the Federal Rules of 'Civil Procedure, 28 U.S.C.A. following section 723c, in its application to actions at law, for that, as with all new procedure, is a matter that ought to be left to a case-by-case demonstration of what it is possible for the rule to do in actual practice. I do feel, however, that we at least should not hesitate to note, for such help as it may be to the trial court and counsel, any plain reach which the complaint here has made beyond substantive boundaries in seeking to use Rule 23(a) as-a procedural vehicle.
The prayer of the complaint is for a personal judgment of $1,350,000 in compensatory and punitive damages against each member of the two named labor unions. Except as to the 72 individuals upon whom service of summons was made, judgment is sought against each of the other union members on the basis of class representation.
No one has ever previously believed, I am sure, under the old equitable class action, that a federal court was entitled, on the basis of class representation alone, to enter a personal judgment of pecuniary liability against an individual who was in no other manner being brought into court. Whether as a matter of due process such representation could legally be made to constitute the basis for a personal judgment, if authorizing legislation existed, I shall not pause to consider. It is sufficient here that no jurisdiction over the person for the purpose of entering such a judgment has heretofore been recognized as existing on the basis of mere class representation. And, of course, Rule 23(a) is not intended to change previous jurisdictional concepts (see Rule 82) but only to enable the procedural device of a class action to be used as well at law as in equity, for any purpose which it can legitimately be made to serve.
Beyond the personal jurisdiction aspect, it also may be added that, as a matter of Missouri substantive law, a member of a non-profit association is not personally liable for the acts of its officers or other members unless he has participated in, authorized or ratified such acts. Stone v. Guth, 232 Mo.App. 217 , 102 S.W.2d 738 ; Murphy v. Holliway, 223 Mo.App. 714 , 16 S.W.2d 107 ; Meriwether v. Atkin, 137 Mo. App. 32 , 119 S.W. 36 ; Richmond v. Judy, 6 Mo.App. 465 ; Ferris v. Thaw, 5 Mo. App. 279 . More than mere class membership or association representation would therefore substantively be necessary to establish a liability collectible out of individual or personal estate.
I assume that it was the trial court’s view that, since the complaint prayed for such a personal judgment against those members of the union who had not been served with summons, on the basis of class representation, the action could not be maintained. This, as has already been indicated, overlooked the fact that 72 members were properly served with summons and that appellant therefore was at least entitled to have the question of their personal liability adjudicated. The dismissal also failed, I think, to take into account the provision of Rule 54(c) that “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” In the spirit of this rule, I have always believed that a court should not summarily dismiss an action because it would be impossible to grant the particular relief prayed in the complaint, if a possibility existed that on a hearing of the merits some form of relief inherent in the cause of action could be granted that might be material and helpful in the situation.
While, as I have stated, appellant was not entitled to ask to recover a personal judgment against any union member on the basis solely of class representation, it could not abstractly be said that there was no possibility that the facts of the situation would show a right to any form of material and helpful class adjudication. Thus, for example, I am satisfied that it legally would be possible to adjudicate, on the basis cf *190 class representation, whether the publications complained of were in fact union acts; whether they were libellous in the circumstances; and, if so, what pecuniary damage had been occasioned to appellant by them.
This is intended merely to illustrate the existence of possible representatively adjudicable questions and not to exhaust them. I make no intimation on whether any such representative adjudications would sufficiently serve a useful legal purpose to require the court to make them. That will be a matter for the considered judgment of the court on a trial of the case. Conceivably, such an adjudication could be a helpful step in the process of ultimately reaching any fund existing for general union purposes, where the union had been guilty of a legal wrong. Such an adjudication could probably also be made to serve as a foreclosure of all questions against the members of the union as a group, leaving open only the question in favor of each individual, who might subsequently be sued and served with summons as a basis for a personal judgment, whether he had participated in, authorized or ratified such wrongful acts as the union was found to have committed.
What I have said is, of course, applicable generally to all voluntary associations and their members, no matter what the purpose of the association may be, and it is only because the unions here involved are such associations that they are within its application.