Clevenger v. McAfee

• Decision Date: 05 April 1943
• Citation: 170 S.W.2d 424,237 Mo.App. 1077
• Parties: James D. Clevenger, Leon H. Clevenger and M. A. Hutchings (Plaintiffs), Respondents, v. Emerson McAfee, J. A. Christensen, Pearl Duncan and H. A. O'Dell, (Defendants), Appellants, Frank Wilson and J. H. Sisk, (Intervenors), Appellants
• Court: Kansas Court of Appeals

170 S.W.2d 424

237 Mo.App. 1077

James D. Clevenger, Leon H. Clevenger and M. A. Hutchings (Plaintiffs), Respondents, v. Emerson McAfee, J. A. Christensen, Pearl Duncan and H. A. O'Dell, (Defendants), Appellants, Frank Wilson and J. H. Sisk, (Intervenors), Appellants

Court of Appeals of Missouri, Kansas City

April 5, 1943

Appeal from Ray Circuit Court; Hon. James S. Rooney, Judge.

Affirmed.

Thompson & Thompson for appellants.

(1) Injunction is to be applied with utmost caution, to be exercised with great discretion and only when necessity requires. Godefroy Mfg. Co. v. Lady Lennox Co., 134 S.W.2d 140; Putnam v. Coats, 220 Mo.App. 218, 283 S.W. 717. (2) An injunction will not be issued to allay fears, but there must be a reasonable probability of injury if writ does not issue. Dennig v. Graham, 227 Mo.App. 717, 59 S.W.2d 699. (3) Injunction will not issue to restrain the doing of an act already done. Corken v Workman, 231 Mo.App. 121, 98 S.W.2d 153; Lademan v Lamb Construction Co., 297 So. W. 184. (4) The burden of proof rests on the plaintiff to show his right to an injunction. Godefroy Mfg. Co. v. Lady Lennox Co., 134 S.W.2d 140; Putnam v. Coats, 220 Mo.App. 218 283 S.W. 717; 162 S.W. 227. (a) Plaintiff's proof must follow the allegations of the petition. Hatton v. K. C. C. & S. Ry. Co., 253 Mo. 660; Cory v. Conqueror Trust Co., 86 S.W.2d 611. (b) Plaintiff in an injunction case must prove the allegation in his petition against the named defendants. F. C. Church Shoe Co. v. Turner, 218 Mo.App. 516, 279 S.W. 232. (c) Pleadings do not prove themselves. Rust Sash & Door Co. v. Bryant, 124 S.W.2d 544. (d) Equity is without jurisdiction where the proof fails to sustain the petition. Ebel v. Roller, 21 S.W.2d 214. (5) Where property rights are involved, a court of equity may assume jurisdiction in religious affairs and examine the proceedings to ascertain whether the church's rules were complied with. Watson v. Garvin, 54 Mo. 353; Boyles v. Roberts, 222 Mo. 613, 121 S.W. 805; Hynes v. Lillis, 183 Mo.App. 190, 170 S.W. 396. (6) Trustees of a church are vested with the title to the property. Fulbright v. Higginbotham, 133 Mo. 668, 34 S.W. 875; Turpin v. Bagby, 138 Mo. 7, 39 S.W. 455. (a) The legal title to church property is vested in the trustees and can not be divested by a minority. Turpin v. Bagby, 138 Mo. 7, 39 S.W. 455. (b) Where property rights are involved, an officer of a voluntary association cannot be removed without notice and hearing. Bentley v. Hurley, 299 S.W. 604; Watson v. Garvin, 54 Mo. 353; 54 C. J., p. 93, sec. 196. (7) Plaintiffs must plead and prove inadequacy of remedy as well as irreparable damages. National Pigments & Chemical Co. v. Wright et al., 118 S.W.2d 20. (8) Officers and members of a religious society cannot be removed without notice and hearing. Watson v. Garvin, 54 Mo. 353; 54 C. J., p. 93, sec. 196; Jones v. State, 28 Neb. 495, 44 N.W. 658; West, Kosch, Konong v. Allisen, 80 Wis. 62, 49 N.W. 24; Cong. v. Mommsen, 174 Minn. 215, 219 N.W. 91. (9) The court erred in admitting in evidence the record of the church showing defendants had been excluded.

Robert Moore and Richard Moore for respondents.

(1) The members represented by plaintiffs are the New Garden Primitive Baptist Church. In primitive Baptist Churches the right to the property always follows the majority congregation. New Garden Church Rules of Decorum, Numbers three, nine and ten; Fulbright v. Higginbotham, 133 Mo. 668, 671, 675, 678, 34 S.W. 875; Turpin v. Bagby, 138 Mo. 7, 9 to 11, 39 S.W. 455. (2) Plaintiffs, as chosen representatives of the majority congregation, are proper persons to bring this action and intervenors can claim no right in court. Trustees of Primitive Baptist Churches hold a naked trust, can be removed or appointed at any time in the discretion of the congregation and are ipso facto divested of all rights and standing upon refusal to recognize the will of the congregation. 54 C. J., pages 25, 26, Secs. 48, 59; Fulbright v. Higginbotham, 133 Mo. 668, 34 S.W. 875; Turpin v. Bagby, 138 Mo. 7, 39 S.W. 455; University of Missouri Law Bulletin No. 8, page 24; Dudley v. Clark, 255 Mo. 570, 164 S.W. 608. (3) The court properly assumed jurisdiction to examine the proceedings and enforce the church rules and rights. Watson v. Garvin, 54 Mo. 353; Boyles v. Roberts, 222 Mo. 613, 121 S.W. 805; Hynes v. Lillis, 183 Mo.App. 190, 170 S.W. 396. (4) The relief granted is proper under the pleadings and is supported by the evidence. (a) It is not required that all facts pleaded be proved; only that need be proved within the pleadings, sufficient to justify the relief. Whitehead v. Farmers Fire & Lightning Mutual Ins. Co., 227 Mo.App. 891, 60 S.W.2d 65, 70. (b) Positive future injury need not be proved; only reasonable probability. Dinnig v. Graham, 227 Mo.App. 717, 59 S.W.2d 699.

OPINION

Cave, J.

This suit is brought by plaintiffs as trustees of the New Garden Baptist Church, in Ray County, to restrain the defendants, their agents and representatives, and all persons claiming by or under them, from entering upon and taking possession of or attempting to take possession of a certain church house and the property on which it is located. On the filing of the petition, a temporary restraining order was issued and in due time the cause was tried on the merits and the court granted permanent injunction against the defendants and the intervenors who duly perfected their appeal.

The petition charged in substance that the plaintiffs are the duly elected, qualified and acting trustees of New Garden Baptist Church and as such trustees have exclusive right, title and interest in and to certain real estate therein described on which is located the church house; that said church is an unincorporated, voluntary association, with regularly adopted rules, by-laws and provisions for self-government; that the defendants on or about March 15, 1941, without the consent of the plaintiffs or of said New Garden Baptist Church, and contrary to and in violation of the rules, by-laws and articles of government of said church, did forcibly enter upon said real estate and upon and into the building thereon situate, and did violently and in a disorderly manner attempt to appropriate to themselves and use the church house to the exclusion of and against the will of the members of said New Garden Baptist Church, for whom these plaintiffs hold title to and possession of said property and building; that said defendants, although not members of said church, did threaten and assert that they will continue to so unlawfully, forcibly, and without consent enter upon said property and enter upon and into said building, and that the said defendants further threaten and assert that they will continue to permanently further deprive plaintiffs and the members of said church from the use of said premises and said building; that plaintiffs fear that said defendants will carry out their threats unless restrained by the judgment of the court; that if defendants so continue such trespassing and unlawful acts as aforesaid, the plaintiffs will suffer an irreparable injury; that defendants will vex, harass and annoy plaintiffs and the members of said church and will put plaintiffs to the necessity of bringing a multiplicity of actions to protect their rights; that defendants are insolvent and that plaintiffs have no adequate remedy at law.

After the filing of the petition, one Frank Wilson and J. H. Sisk filed their application to intervene in said cause, alleging that they were two of the three regularly elected, qualified and acting trustees of said church. Their application was sustained and they were permitted to intervene in said cause. As intervenors, they filed answer denying the allegations in plaintiffs' petition, and further answered, claiming that they were the duly elected, qualified and acting trustees of said church; that they were a majority of the trustees of said church and as such trustees have exclusive right, title and interest in and to the property described in the petition; that the plaintiffs and their followers conspired and contrived to deprive the intervenors of their office as trustees and attempted to remove them contrary to the rules and customs of said church; that plaintiffs' and their followers' actions were contrary to the rules and customs of said church; that the meetings at which plaintiffs attempted to remove the intervenors as trustees were held contrary to the rules and customs of said church and that the plaintiffs were without right or authority to prosecute this suit; that the intervenors had not consented, authorized or acquiesced in the filing or prosecution of said suit.

The answer of the four defendants was to the same effect.

The reply puts in issue the question of who are the legal trustees of said church.

It is conceded that the New Garden Primitive Baptist Church is an unincorporated, voluntary, religious association organized for the sole purpose for the worship of God, and that said church is congregational in its nature and was built exclusively by the will of its members in good standing, with no superior or directing power other than found in the government of the church by its own members, through rules, by-laws, practices and customs of said church. There were about 156 members at the time of this controversy.

The Rules of Decorum of the church were introduced and the pertinent parts are substantially as follows: The business of the church is to be attended to on the third Saturday in each month commencing at eleven o'clock; a moderator shall be chosen by a majority of the members present, who shall preside while the church is on business and shall preserve order; he shall take the vote of the church, and all...