Clevenger v. McAfee, 38097.

• Decision Date: 12 November 1942
• Docket Number: No. 38097.,38097.
• Citation: 165 S.W.2d 411
• Parties: CLEVENGER et al. v. McAFEE et al. (WILSON et al., Intervenors).
• Court: Missouri Supreme Court

165 S.W.2d 411

CLEVENGER et al. v. McAFEE et al.

(WILSON et al., Intervenors).

No. 38097.

Supreme Court of Missouri, Division No. 2.

November 12, 1942.

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

Suit by James D. Clevenger and others against Emerson McAfee and others to enjoin defendants from interfering with the use and occupancy of church property by plaintiffs as trustees, wherein Frank Wilson and another intervened claiming that they were the trustees. From an adverse judgment, defendants and interveners appeal.

Cause transferred to Court of Appeals.

Thompson & Thompson, of Richmond, for appellants.

Robert Moore and Richard Moore, both of Excelsior Springs, for respondents.

WESTHUES, Commissioner.

This suit was brought by plaintiffs, claiming to be the duly elected and acting trustees of the New Garden Primitive Baptist Church in Ray county, Missouri, to enjoin the defendants from interfering with the use and occupancy of the church property by plaintiffs or the members of the said church. The defendants and Frank Wilson and J. H. Sisk as intervenors, filed answers alleging that the intervenors are the duly elected trustees of the church. Upon a hearing the trial court granted plaintiffs the relief prayed for and the defendants and intervenors appealed. Appellants in their brief state that this court has appellate jurisdiction because the suit involved title to real estate. However, we are of the opinion that the only question to be decided in this lawsuit is whether plaintiffs or the intervenors are the trustees of the New Garden Primitive Baptist Church. It was conceded that the church has a congregational form of government. The trustees are elected by the members of the church. Such trustees do not own the church property, they merely act and hold title in a representative capacity. The church, that is the membership thereof, has control of the property. See 54 C.J. 60, § 122; Fulbright v. Higginbotham, 133 Mo. 668, 34 S.W. 875, loc. cit. 876(2). In this case, since the only dispute is as to who are the trustees of the church, the plaintiffs or the intervenors, the title to the property of the church is not only not involved but will not be affected by any judgment responsive to the issues presented. Appellate jurisdiction of the case is therefore vested in the court of appeals.

The cause is hereby transferred to the Kansas City Court of Appeals.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

The foregoing ...