Collins v. Simms, 30

• Decision Date: 02 May 1962
• Docket Number: No. 30,30
• Court: North Carolina Supreme Court
• Parties: Marshall C. COLLINS, Edwin Moore, Haywood Wise, George Midgett, Alfonzo Scarborough and Dave Alexander, Deacons of the Haven Creek Baptist Church, Manteo, North Carolina, Acting as Trustees Holding Title to the Property of the Church, and Marshall C. Collins, Edwin Moore, Haywood Wise, George Midgett, Alfonzo Scarborough and Dave Alexander, Individually for themselves as Members of said Church and for such other members of such Church as may make themselves parties to this action, v. Reverend J. C. SIMMS.

Page 298

125 S.E.2d 298

257 N.C. 1

Marshall C. COLLINS, Edwin Moore, Haywood Wise, George

Midgett, Alfonzo Scarborough and Dave Alexander, Deacons of

the Haven Creek Baptist Church, Manteo, North Carolina,

Acting as Trustees Holding Title to the Property of the

Church, and Marshall C. Collins, Edwin Moore, Haywood Wise,

George Midgett, Alfonzo Scarborough and Dave Alexander,

Individually for themselves as Members of said Church and

for such other members of such Church as may make themselves

parties to this action, v. Reverend J. C. SIMMS.

No. 30

Supreme Court of North Carolina.

May 2, 1962

Frank B. Aycock, Jr., Elizabeth City, for plaintiffs.

James R. Walker, Jr., Weldon, Robert L. Harrell, Sr., Ahoskie, and Samuel S. Mitchell, Raleigh, for defendant.

MOORE, Justice.

This case was here on appeal at the Spring Term 1961. In an opinion delivered by Parker, J., the factual background, pleadings, and proceedings had prior to that appeal are clearly and concisely stated. Collins v. Simms, 254 N.C. 148, 118 S.E.2d 402. We repeat them here in brief outline only as a background for a discussion of subsequent developments. For a fuller and more complete statement, the former opinion should be read and considered in connection herewith.

The action was instituted 11 February 1960. The complaint alleges that defendant served as pastor of Haven Creek Baptist Church, Manteo, North Carolina, in 1959, that at a regular business meeting of the church congregation defendant was voted out and was notified that his pastorate would end at the close of the year 1959, that defendant notwithstanding the notice appeared at the church on every preaching Sunday until this action was begun and attempted to serve as pastor. Plaintiffs, church officers and members, ask that defendant be permanently enjoined from trespassing on the church property.

On 15 February 1960 a temporary restraining order was issued, enjoining defendant from appearing at the church and interfering in any manner with worship services and other church meetings, and directing him to show cause, at a specified time and place, why the restraint should not continue until the final hearing. Copies of the summons, complaint and restraining order were personally served on defendant on 20 February 1960. On 5 March 1960 defendant signed, in person, consent to an order continuing the temporary restraining order to the final hearing of the cause on the merits.

Defendant failed to answer or otherwise plead to the complaint and neglected to request an extension of time for pleading. At the May Term 1960 of the Superior Court of Dare County, on motion of plaintiffs, Hooks, Judge presiding, entered a judgment by default final and 'decreed that the defendant be, and he is hereby perpetually enjoined and restrained from appearing at the Haven Creek Baptist Church or trespassing on the grounds or in the church building located on the grounds of the Haven Creek Baptist Church.'

On 30 September 1960 defendant filed a motion to vacate the judgment by default final entered by Judge Hooks, and to dismiss the complaint. This motion was heard at the October Term 1960 of Dare County Superior Court by Bone, Judge presiding, and was overruled. Defendant excepted and appealed to Supreme Court. As stated above, this appeal was heard here at the Spring Term 1961. Our opinion was filed 1 March 1961.

The questions raised in the present appeal must be viewed in the light of the rule that a decision of this Court on former appeal constitutes the law of the case in respect to questions therein presented and decided, both in subsequent proceedings in the trial court and on subsequent appeal when the same matters are involved. Glenn v. City of Raleigh, 248 N.C. 378, 103 S.E.2d 482; Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864. Our decision on the former appeal 254 N.C. 148, 118 S.E.2d 402 makes the following holdings the law of the case:

(1). 'Defendant's failure to answer within the statutory time prevents him from denying any facts set forth in the verified complaint, and admits that plaintiffs are entitled to such relief as the law gives them upon the facts alleged.'

(2). 'The verified complaint states a good cause of action for injunctive relief to prevent defendant after the year 1959 from appearing at the church and acting or attempting to act as its pastor at a religious service or at any other church meeting, so long as he is not its pastor.'

(3). 'It (the complaint) does not state a good cause of action against defendant for perpetual injunctive relief to prevent him from merely appearing at the church, and Judge Hooks' judgment by default final in which he decreed ' that the defendant be and he is hereby perpetually enjoined and restrained from appearing at the Haven Creek Baptist Church or trespassing on the grounds or in the church building' is not supported by the allegations of fact in the verified complaint, and is far in excess of the relief the law gives plaintiffs upon the facts alleged * * *.'

(4). Upon the facts alleged in the complaint and admitted by failure to answer, a judgment by default final restraining defendant 'from appearing at this church after the year 1959 and acting or attempting to act as its pastor at a religious service or at any other church meeting, so long as he is not its pastor, violates no rights guaranteed to him by Article I, Sections 1, 17, 25 and 26 of the North Carolina Constitution, or by the 1st and 14th Amendments to the United States Constitution.

(5). 'Judge Hooks' judgment by default final, which grants relief in excess of that encompassed in the verified complaint, is irregular. * * * ' An irregular judgment is not void. It stands as the judgment of the court unless and until it is set aside by a proper proceeding."

(6). 'That part of Judge Bone's judgment denying defendant's motion to vacate Judge Hooks' judgment by default final cannot be sustained, and is remanded to the lower court for a judgment vacating that part of Judge Bone's judgment, and for the entry of a judgment by default final restraining defendant in accordance with the injunctive relief to which this opinion holds plaintiffs are entitled.'

On 16 March 1961 plaintiffs made a motion in writing and duly verified, that defendant be cited by the Superior Court for contempt. Defendant filed a verified 'Reply and Answer' to the motion. The matter came on for hearing before Morris, J., on 25 March 1961, and he entered an order, in pertinent part as follows:

'The Court makes the following findings of fact and conclusions of law based upon the various affidavits and other paper writings, statements, stipulations of counsel and a consideration of the record in this action, including the Opinion of the Supreme Court of North Carolina, Spring Term, 1961 * * *.

'5. On the 6th day of March, 1961, the defendant Simms went on the Church grounds and attempted to enter the building which was locked at the time. He accounted for his actions by asserting that he was the pastor and that he was taking charge and desired to enter the Church building in his capacity as such pastor.

'6. On the 12th day of March, 1961, the defendant Simms attended a meeting of the Baptist Training Union at said Church and again asserted that he was the pastor in charge of the Church. At this time, the defendant posted a notice on the bulletin board of the Church, signing himself as 'Rev. J. C. Simms, Pastor in Charge.'

'At this same time and place, the defendant again orally asserted that he was the pastor and that he would preach at the next worship service on March 19, 1961.

'7. In accordance with the above assertion, the defendant did appear on the 19th day of March, 1961, at said Church, the regular pastor, the Reverend Horace Moore, being present. At this time, the defendant took over, by means and in a manner not made clear to the Court at the hearing; whereupon, to avoid any further trouble, the regular pastor and the greater part of the membership of the Church left the Church, only four or five adults out of a normal attendance of fifty or more adults remaining for worship services.

'8. These acts on the part of Simms in taking over as pastor and asserting his right to do so were done on advice of counsel, this advice being to the effect, as the Court understands it from statements made by defendant's counsel, that there was error in the previous orders and judgments of the Superior Court of Dare County, that Simms was the pastor of the Church and had the right to take over and act as the pastor of said Church in view of the decision of the Supreme Court above referred to.'

'* * * (T)he Court finds that the defendant is in contempt of this Court * * *.

'* * * (T)he Court finds that the contempt is a technical contempt and withholds sentence for said contempt on condition that the defendant shall not usurp or attempt to usurp the office of pastor of the Haven Creek Baptist Church or attempt, in any manner, to act as such pastor, until such time as final judgment based upon the decision of the Supreme Court has been entered by the Superior Court of Dare County. In accordance with the Court's construction of said decision of the Supreme Court of North Carolina, the defendant may attend worship services and any other meetings of said Church open to members of the general public.'

There was no appeal from the contempt order.

Thereafter Judge Joseph W. Parker entered the following judgment:

'THIS CAUSE coming on to be heard before the undersigned Judge Presiding at the May Term, 1961, Superior Court of Dare County, UPON MOTION BY THE PLAINTIFFS for a judgment conforming to the opinion of the Supreme Court of North Carolina in the above captioned case, Spring Term, 1961, No. 32:

'NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the defendant be, and he is hereby enjoined and restrained from attempting to assume the office of pastor of the Haven Creek Baptist Church until such time...