CROATIAN SLAVONIAN BENEVOLENT SOC LODGE NO 177 OF CROATIAN FRATERNAL UNION OF AMERICA v. MIOCH

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District Court of Appeal, Second District, Division 1, California.

CROATIAN-SLAVONIAN BENEVOLENT SOC., LODGE NO. 177 OF CROATIAN FRATERNAL UNION OF AMERICA, v. MIOCH.*

Civ. 10358.

Decided: April 13, 1936

Haas, Johnston, Maurseth & Kerrin, of Los Angeles, for appellant. V. P. Lucas, of Los Angeles, for respondent.

To plaintiff's complaint in this action a general and special demurrer was interposed by defendant. One of the grounds of the special demurrer was that it appeared upon the face of such complaint that plaintiff had not the legal capacity to sue. The demurrer, both general and special, was overruled; defendant failed to answer, and in default thereof, judgment was entered in favor of plaintiff. The appeal is from such judgment.

The allegations with reference to plaintiff's capacity are contained in paragraph 1 of the complaint, and are as follows: “That Croatian Fraternal Union of America is a nonprofit fraternal benevolent society organized and existing under and by virtue of the laws of the State of Pennsylvania, and that plaintiff herein, Croatian-Slavonian Benevolent Society, Lodge No. 177 of Croation Fraternal Union of America, is a branch of said parent organization and has complied with the laws of the State of California governing fraternal benefit societies.”

A mere reading of this allegation makes it apparent that the special demurrer should have been sustained. It does not appear from said allegation whether the parent organization, or the branch thereof, was in existence at the time the obligation sued on was incurred. It does not appear whether the parent organization, or the branch, is a corporation or an unincorporated association. Under the laws of this state, it could be either. 19 Cal.Jur. 463. If the parent organization is a corporation, it does not appear that it is qualified to operate in this state. If the branch organization, the plaintiff herein, is a corporation, there is no allegation to that effect. If it is not, it appears affirmatively that it has no capacity to sue. It does not appear from said allegation with what laws of the state of California the actual plaintiff has complied. Grand Grove, etc., v. Garibaldi Grove, 130 Cal. 116, 62 P. 486, 80 Am.St.Rep. 80; Agricultural Extension Club, etc., v. Hirsch & Son, 39 Cal.App. 433, 435, 179 P. 430; Judah v. Fredericks, 57 Cal. 389; Collins v. O'Laverty, 136 Cal. 31, 68 P. 327; Swamp & Overflowed Land District No. 110 v. Feck, 60 Cal. 403; Pleaters & Stitchers Ass'n v. Davis, 140 Cal.App. 403, 35 P.(2d) 401; Herald v. Glendale Lodge No. 1289, 46 Cal.App. 325, 189 P. 329. It is established that when the right to sue constitutes an integral part of plaintiff's cause of action, the facts showing the authority to sue must clearly appear. Louisville & N. R. Co. v. Brantley's Adm'r, 96 Ky. 297, 28 S.W. 477, 49 Am.St.Rep. 291; Wilson v. Shrader, 73 W.Va. 105, 79 S.E. 1083, Ann.Cas. 1916D, 886.

The judgment is reversed, with directions to the trial court to sustain the demurrer and permit plaintiff reasonable time within which to amend its complaint.

ROTH, Justice pro tem.

We concur: HOUSER, P. J.; DORAN, J.