Opinion
May, 1899.
August P. Wagener, for appellant.
Otto Kempner, for respondent.
This action was brought to recover the sum of $200, claimed by the plaintiff to be due him, from the defendant as a death benefit accruing by reason of the death of the plaintiff's wife, while a member of the defendant association. The pleadings were oral. The defendant offered no testimony upon the trial, and at the close of the plaintiff's case made a motion to dismiss the complaint upon the ground, among others, that the defendant having been shown to be a voluntary unincorporated association, the action should have been brought against the president or treasurer thereof, as required by section 1919 of the Code of Civil Procedure. The motion was denied. The fact being as stated, and it having been further shown that the association had a president and treasurer, the objection was well taken, as long as the action was not instituted against all the members of the association, under section 1923 of the Code. In no event was the action well brought against the association as a corporation, nor was service of the summons upon the secretary sufficient. It is not necessary to discuss the other point raised on the appeal.
The judgment should be reversed, with costs to appellant.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment reversed, with costs to appellant.