# Barnes v. Fort > Tennessee Supreme Court · June 10, 1944 · 181 Tenn. 522 URL: https://www.frixlaw.com/law-library/cases/9868646 ## Case - **Full name:** Barnes v. Fort Et Al. - **Court:** Tennessee Supreme Court - **Decided:** June 10, 1944 - **Citations:** 181 Tenn. 522; 17 Beeler 522; 181 S.W.2d 881; 1944 Tenn. LEXIS 273 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Neil - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9868646 ## Opinion text On Petition to> Rehear. Appellants, alleged to be members of the Adams Jersey Cattle Association, have filed their petition to rehear averring that the opinion of the Court is “revolutionary” in that there is no law tolling the statute of limitations against them since they were not made parties defendant to the original bill. It is earnestly contended that the Court should have held that the statute was tolled on the date process was issued and served upon them under the amended petition of complainant, which was a “Petion in the nature of an Original Bill. ’ ’ While this question was fully argued by counsel and given consideration by the Court, we are not averse to re-examining- it although the petition does not technically comply with Rule 32. The original bill was filed to recover $2100.00 for money loaned to the Adams Jersey Cattle Association, as evidenced by note duly executed by C. 'H. Fort as President of the Association. In his answer and cross-bill the defendant Fort averred that ‘ ‘ said note was executed only for and on behalf of the Association.” The membership being numerous, the Chancellor correctly held that they were before the court by representation, process having been duly served upon the President as representative of the class. Tinder the authority of Powers v. Journeymen Bricklayers’ Union, 130 Tenn., 643 , 172 S. W., 284 , L. R. A. 1915E, 1006, as well as other authorities cited in the original opinion, we think the class doctrine was applicable and that the original decree was binding upon all who were represented. 'See also 1 Daniell’s Chancery Pleading and Practice (6 Amer. Ed.), pp. *272-*274. *535 Appellants contend that the original decree upon which the present action is based was only binding upon the property of the Association and that .the statute of limitations could not be tolled against them where a judgment in personam was sought by the complainant; that it would amount to the denial of due process. We think the authorities fully sustain the Court’s opinion that when the original bill was filed against the Association and process served under the class doctrine, the statute was tolled as to the right of action, against all members. If the Association is properly before the Court as in Powers v. Journeymen Bricklayers’ Union, supra, its various members are likewise before the Court, since “they are privy to the proceedings touching the body of which they are members. ’ ’ Patch Manufacturing Co. v. Capeless, 79 Vt., 1 , 63 A., 938, 940 ; Jardine v. Superior Court, 213 Cal., 301 , 2 P. (2d), 756 , Annotated 79 A. L. R., 291, 305; Carpenters’ Union v. Citizens’ Committee, 333 Ill., 225 , 164 N. E., 393 , 63 A. L. R., 177, and cases there cited. In Dewey v. St. Albans Trust Co., 60 Vt., 1 , 12 A., 224 , 6 Am. St. Rep., 84 , it was held that the decree against the Association was binding upon the rights of the parties represented.. While the cases cited in the annotations in 79 A. L. R., 306' relate to service of process under the statute, we think the methods provided in the statutes are cumulative. Heralds of Liberty v. Bowen, 8 Ga. App., 325 , 68 S. E., 1008 . The original bill was “an action commenced” within the meaning* of those words as used in our Code, section 8571, and the statute was tolled at that time. We see nothing “strange, novel, or revolutionary” in this pronouncement. It -does not constitute judicial legislation as insisted upon by the petitioners. *536 The case of Gold v. Bush, 63 Tenn., 579 , cited by counsel is not in point. Appellant Gold was a party to the cause as administrator duly appointed by the Court. A decree rendered more than six years after the original appointment was valid against him and also his bondsmen. In ruling upon the question, the Court said ( 63 Tenn., at page 582 ): ‘ ‘ The parties to the bond, executed in open Court in the progress of the suit, are parties to the suit in such a sense as that the Statute of Limitations will not affect their obligation ...” * In Tyner v. Fenner, 72 Tenn., 469 , also cited by counsel, it was held: ‘‘ The statute of limitations does not run in favor of the maker or sureties of a note executed to a Clerk for property sold in the progress of a suit in court, and while the note is in the custody of the law.” ('Syllabus.) The original decree of the Chancellor in the instant case held the members of the Association collectively liable upon a contractual obligation. The cause was retained in court for the purpose of enforcing the decree. Later, and more than six years after the maturity of the note sued on, complainant filed his amended bill against the appellants, who were served with process, seeking an enforcement of the decree against them, as well as other members of the Association. This amendment is not the beginning of a new cause of action, since they are in truth and in fact the Association itself. As heretofore stated, “they are privy to the original proceeding touching the body of which they are members.” Patch Manufacturing Co. v. Capeless, supra. “Privies” have been held to include “persons who are partakers or have an interest in any action or thing.” Bouvier’s Law Dictionary. *537 It may be stated as a general rule that a limitation upon the right of amendment is that no new cause of action shall be introduced and no new parties brought in after the statute of limitations has become a bar. Here we have neither a new cause of action, nor the addition of new parties. In Daniell’s Chancery Practice, Yol. 1 (6 Amer. Ed.), p. *274, it is said: “And so bills are frequently entertained by lords of manors against some of the tenants, on a question of common affecting them all; and a person may maintain a bill for tithes against a few of the occupiers within the parish although they set up a modus to which the whole are jointly liable.” The learned author cites the following quotation from Lord Eldon: ‘ ‘ ‘ There is one class of cases very important upon this subject, namely, where a person having at Law a general right to demand sérvice from the individuals of a large district, to his mid for instance, may sue thus in Equity: his demand is upon every individual not to grind corn for their own subsistence, except at his mill; to bring actions against any individual for subtracting that service is regarded as perfectly impracticable; therefore, a bill is filed to establish that right, and it is not necessary to bring all the individuals. Wiry? Not that it is inexpedient, but that it is impracticable to bring them all. See 48th Equity Buie of the U. S. Supreme Court. The Court, therefore, has required so many that it can be justly said they will fairly and honestly try the legal right between themselves, all other persons interested, and the plaintiff; and when the legal right is so established at Law, the remedy in Equity is very simple: merely a bill stating that the right has been established in such a *538 proceeding; and upon that ground, a Court of Equity will give the plaintiff relief against the defendants in the second suit, only represented by those in the first. I feel a strong inclination that a decree of the same nature may be made in this case.’ ” In Boyd v. United States Mortg. & Trust Co., 187 N. Y., 262 , 79 N. E., 999 , 9 L. R. A. (N. S.), 399, 116 Am. St. Rep., 599 , 10 Ann. Cas., 146, it was held, an amendment of a complaint so as to charge defendant individually instead of in a representative capacity did not bring in a new party, so as to permit him to take advantage of the statute of limitations, the period of limitation having run before the amendment was made. See also Ewing v. Wm. L. Foley (Tex. Civ. App.), 239 S. W., 251 ; School Town of Monticello v. Grant, 104 Ind., 168 , 1 N. E., 302 ; Western Union Tel. Co. v. State, 82 Md., 293 , 33 A., 763 , 31 L. R. A., 572, 51 Am. St. Rep., 464 . In Manistee Mill Co. et al. v. Hobdy, 165 Ala., 411 , 51 So., 871 , 138 Am. St. Rep., 73 , the suit was against the Manistee Mill Co., a corporation. After the running of the statute the complaint was amended by substituting the defendant V. J. Herlong, doing business under the name of Manistee Mill Co. The Court, citing Ex parte Nicrosi, 103 Ala., 104 , 15 So., 507 , held the statute of limitations was no defense since it appeared they were one and the same person. As to the extent the decree may be enforceable against individual members, and especially these petitioners, we are not now called upon to determine. Personal liability must depend upon the facts connecting them with the authorization of the Association’s obligation as represented by the note signed by its officers. In 7 C. J. S., Associations, p. 74, sec. 32, subsec. a, it is said: *539 “While mere membership in an association does not of itself impose liability for the acts of tbe associates, universal liability of members of a voluntary, unincorporated association may be established by a public act of the association itself, or by the acts of officers, agents, or members where such acts are known to the membership and actively or passively approved. ’ ’ Upon a remand of this cause the appellants may defend upon the grounds mentioned in the original opinion and upon the further ground that they were not members of the Association when the obligation was incurred, as well as all other defenses available under the plea of nil debit. The' constitutional rights of petitioners are in no way abridged in this proceeding. The petition to rehear is accordingly denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9868646. Public record. Not legal advice.