27 N.W.2d 67 (Mich. 1947), 58, Berry v. Bruce

Docket Nº:58.
Citation:27 N.W.2d 67, 317 Mich. 490
Opinion Judge:CARR, Chief Justice.
Party Name:BERRY et al. v. BRUCE et al.
Attorney:Ralph E. Helper and John G. Balose, both of Detroit, for plaintiffs and appellees. Edward N. Barnard, of Detroit, for appellants.
Judge Panel:Before the Entire Bench.
Case Date:April 17, 1947
Court:Supreme Court of Michigan

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27 N.W.2d 67 (Mich. 1947)

317 Mich. 490

BERRY et al.


BRUCE et al.

No. 58.

Supreme Court of Michigan

April 17, 1947

[317 Mich. 491] Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Judge.

Suit by Chester Berry and others against J. Herbert Bruce and others to enjoin defendants from disposing of any assets of church and from interfering with plaintiffs or other members of church in performance of their rights as members, and for an accounting, wherein the defendants filed a cross-bill for injunctive relief. From an adverse order, the defendants appeal, and the plaintiffs move to dismiss the appeal.

Mortion to dismiss denied, order reversed, and cause remanded for further proceedings.

Before the Entire Bench.

Ralph E. Helper and John G. Balose, both of Detroit, for plaintiffs and appellees.

Edward N. Barnard, of Detroit, for appellants.

CARR, Chief Justice.

This suit was started March 11, 1946, for the purpose of obtaining equitable relief by way of an injunction and an accounting. The defendant Bruce was the pastor of the Olivet Missionary Baptist Church, located in the city of Detroit, and the

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other defendants were officials of the church. Plaintiff alleged in their bill of complaint that were members of said church; that it had formerly existed as a corporation; that, through the carelessness and negligence of the defendants, the corporate charter had been lost on August 31, 1944, because of the failure to file an annual report; that the defendants had [317 Mich. 492] failed to conduct the affairs of the church in accordance with the rules and regulations by which it was governed; that they had allowed the church property to become badly in need of repair; that the members of the church were denied their rights and privileges as such; and that defendants had failed to account for moneys that had been collected by them. Plaintiffs asked that defendants be enjoined, temporarily and permanently, from selling, assigning, mortgaging or otherwise disposing of any of the assets of the church, and from interfering with plaintiffs or other members of the church in the performance of their rights and duties as members. An accounting was also prayed.

On the filing of the bill of complaint an order issued requiring defendants to show cause why an injunction should not be granted in accordance with the prayer of the bill. A provision was inserted in said order restraining defendants from encumbering or disposing of any of the property in question, and from interfering with plaintiffs or other members of the church in the exercise of their rights and duties as such.

By answer to the bill of complaint, defendants denied the charges of misconduct made against them and further denied plaintiffs' right to relief. They admitted that the corporate charter had been lost, as alleged in the bill of complaint, denying, however, that such loss was the result of negligence or carelessness on the part of defendants. The answer alleged in this regard that it is a matter of common practice among certain churches not to continue at all times a corporate form of organization, and that the membership of the church had tacitly consented to the carrying on of religious services as an unincorporated association. By amendment to the answer, subsequently filed, defendants further alleged [317 Mich. 493] that the Olivet Missionary Baptist Church had been conducted in accordance with its constitution and by-laws, and also in accordance with 'The New Directory for Baptist Churches by Edward T. Hiscox.' The parties seem to be in accord that the government of spiritual matters within the church is prescribed by the Hiscox manual.

Defendants also filed a cross-bill, charging in substance that the plaintiffs and cross-defendants had conspired together for the purpose of unlawfully usurping the functions of the church, and that, in the attempt to carry out such purpose, plaintiffs and cross-defendats by indulging in improper and disorderly conduct had interfered with the holding of church meetings. Defendants and cross-plaintiffs asked for injunctive relief restraining such alleged conduct on the part of plaintiffs and cross-defendants. In accordance with such prayer an order was issued containing a temporary restraining order of the character sought, and further requiring plaintiffs and cross-defendants to show cause why a temporary injunction should not issue as prayed in the cross-bill.

The orders to show cause, issued on the bill of complaint and on the cross-bill, were brought on for hearing before the court on March 28, 1946. On April 24, following, the court made an order requiring the defendant Bruce to call a special meeting of the membership of the church, to be held the evening of May 6, such meeting to be presided over by the pastor, defendant Bruce, until the meeting reached the consideration of the question of removing the pastor. The order further directed that such meeting should be open only to members of the congregation of the church holding regular membership cards, or entitled to hold such at the time of the commencement of the suit on March 11, [317 Mich. 494] 1946; and that in all particulars the business to be considered at the meeting should be conducted in accordance with the constitution and by-laws of the church and the Hiscox manual. The order further provided that the membership of the church might consider the question of removing the pastor and that on the consideration of such question the pastor

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should retire as presiding officer...

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