Saltman v. Nesson

Decision Date21 April 1909
PartiesSALTMAN et al. v. NESSON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Dolan, Bateman & Stebbins, for appellants.

Robt. H. O. Schulz, for appellees.

OPINION

BRALEY J.

If primarily the controversy was confined to the form of divine worship to be used by the congregation, the progress of the dissension had developed other differences which the parties also seek to litigate in the present suit. The bill as amended asks for restoration to membership of an expelled member, and that some of the defendants who have usurped certain corporate offices may be restrained from interfering with its property, joined with demands by the corporation for an accounting by the defendant Nesson of his receipts and expenditures as mortgagee and president, and that the form of worship preferred by the individual plaintiffs, may be established and confirmed. It is apparent that under the most liberal rules of procedure there is a misjoinder of legally distinct, and equitable inconsistent demands. Bliss v. Parks, 175 Mass. 539, 543, 56 N.E 566. The remedy to test the validity of the expulsion of the plaintiff Finberg, and the title of the usurping officers was by mandamus. Luce v. Board of Examiners, 153 Mass. 108, 26 N.E. 419; Keough v. Holyoke, 156 Mass. 403, 31 N.E. 387. If to render a bill multifarious the matters stated must not only be separate, but each of itself of such a character as to entitle the plaintiff to relief, the refusal of Nesson to render an account to the corporation joins a cause for relief wholly independent of that of the remaining individual plaintiffs, even if upon being requested by them he would have declined to bring proceedings in its name, and this objection should be taken by demurrer. Dimmock v. Bixby, 20 Pick. 368, 377; McCabe v. Bellows, 1 Allen, 269; Davis v. Peabody, 170 Mass. 397, 399, 400, 49 N.E. 750, and cases cited; 1 Dan. Ch. Pl. & Pr. (6th Am. Ed.) 346. So if the bill in substance fails to state a case for equitable relief the proper course is to demur, although this objection may be equally available at the hearing. Story Eq. Pl. & Pr. (8th Ed.) § 453. Or all these defenses may be specially raised by an answer. 1 Dan. Ch. Pl. & Pr. (8th Am. Ed.) 346; Equity Rule 13. A special demurrer having been interposed raising the objections discussed, an order was entered by consent, overruling the demurrer, 'without prejudice to raise the same questions of law at the time of the hearing upon the merits.' The case was then referred to a master, before whom not only were all the allegations of the bill tried at great length, but the demurrer was argued, and submitted for his decision. The practice adopted resulted in the trial of issues by a master which should have been heard and eliminated by the court, and subjected the parties to the expense of litigating on the merits, disputes not within the jurisdiction of a court of equity. The master, however, having decided the grounds of demurrer adversely to the defendants, they again raised the same questions by exceptions to his report. In this state of the record, the final decree, while sustaining these exceptions, properly treated the demurrer as having ceased to perform its functions. Crocker v. Dillon, 133 Mass. 91; Driscoll v. Smith, 184 Mass. 221, 222, 68 N.E. 210; United Shoe Machinery Co. v. Holt, 185 Mass. 97, 102, 69 N.E. 1056; Vaughan v. Bridgham, 193 Mass. 392, 397, 79 N.E. 739, 9 L. R. A. (N. S.) 695; 1 Dan. Ch. Pl. & Pr. (6 Am. Ed.) 346. It is not important to consider them further, but for reasons previously stated the exception of the plaintiffs was properly overruled, while the defendants' fifth, sixth, eighth, ninth, tenth and twelfth exceptions were rightly sustained, and as they did not appeal, there is no occasion to consider their remaining exceptions, which were overruled.

If these extraneous matters are thus disposed of, there remains for decision the principal ground of complaint, which is confined to the individual plaintiffs who continued members of the society. The grievance consists in the particular form of religious ceremony to be followed. The master finds there are two forms or rituals in which the services could be conducted. At first the ritual favored by the plaintiffs was used, but later as the membership increased a different form was proposed by one section of the congregation. The agitation which followed led to antagonisms, and disturbances at the meetings, in which each faction endeavored to secure the use of its own ritual, to the suppression of the other. It is unnecessary to go further into the details, or to consider the effect of the decision of the arbitrators to whom the contending factions submitted their claims, but whose award, even if violated by the defendants, expired by limitation before the master's...

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