Franke v. Mann

• Decision Date: 27 February 1900
• Citation: 81 N.W. 1014,106 Wis. 118
• Parties: FRANKE ET AL. v. MANN ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 118

81 N.W. 1014

FRANKE ET AL.

v.MANN ET AL.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from circuit court, Lafayette county; George Clementson, Judge.

Bill by Ludwig Franke and others against Albert Mann and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Equitable action to prevent members of a religious corporation from perverting the use of its property.

The issues made by the complaint were decided by the trial court substantially as follows:

(1) May 13, 1888, for some years theretofore, and ever since, the German Evangelical Synod of North America has existed in Wisconsin and other states as a religious corporation separate and distinct from all others, and has been and is made up of people whose beliefs on religious and church questions differ materially from those of any other church or sect, particularly from the belief of the members of the Lutheran or German Lutheran Church.

(2) At the time stated Wisconsin was a district of such synod, having a form of government binding the different church societies composing it to the distinct belief of the sect known as the “German Evangelical Church.”

(3) May 13th, aforesaid, at the town of Wayne, Lafayette county, Wis., several persons named in the complaint, competent for the purpose, members of the German Evangelical Church and its Synod of North America, for the purpose of forming a religious society of such sect and synod, made a certificate of organization for a church corporation, in good faith, intending to comply with the laws of this state on that subject, but failed to have the execution of such certificate acknowledged, though they caused the same to be recorded in the office of the register of deeds of Lafayette county May 29, 1888, and thereafter, on May 4, 1897, seven of the fifteen signers of the certificate duly acknowledgedthe same and caused the certificate thereof to be recorded in the margin of the record of the articles.

(4) The day the articles of organization were signed the signers held their first meeting and duly elected trustees, and thereafter a corporate organization was maintained, the right to be a corporation asserted, and the corporate franchise accordingly used down to the time of the commencement of this action, the defendants, except the defendant Schlicting, being then the trustees.

(5) The corporation, till 1896, submitted to the government and direction of the German Evangelical Synod of North America, and recognized its authority as a superior governing power in all respects according to the ecclesiastical law of the synod. The Wayne Church Society, together with two other such organizations, was presided over during the time mentioned by ministers of the German Evangelical Church, designated for that purpose by the synod of the sect for North America, and took part, in the manner provided by the rules of the sect, in the district conferences and conventions of the church for the district of Wisconsin.

(6) Substantially all members of the society, including plaintiffs and defendants, signed their names in a book kept for that purpose, as did the members of the other churches of the sect presided over by the same minister, as aforesaid, purporting thereby to adopt the synodical rules and regulations prescribed for such purposes. Such rules were not formally adopted by a vote of the members of the society or by any formal corporate act. The individual members of the society signed the book at the request of the minister as and for a submission of the society to the rules, and such rules were submitted to by the society and the members thereof up to about the year 1896.

(7) The subordinate organizations of the German Evangelical Synod of North America are bound by its constitution and system of government to submit thereto in all matters, including the religious belief of the church and its forms and ceremonies. and not to employ a pastor other than a member of the German Evangelical Church, ordained by the synod of such church for North America, holding its certificate of good character and behavior, and who shall subscribe a written promise to be faithful to the rules and regulations of such society and synod.

(8) The society built a church edifice on lands described in the complaint, donated to the society for that purpose by Wilhelm Taufmann, one of the plaintiffs. The conveyance was made in form to the trustees of the German Evangelical St. Paul's Society of the Town of Wayne, Lafayette county, Wis., for the use of such society. It was accepted by the corporation with knowledge of its provisions by substantially all the members of the society, and without objection as to the use declared. There was some talk by individual members of the church about the property being made free to all sects except Roman Catholics, but that was never favored by the society as such.

(9) The church building was paid for by money contributed by its members, was duly dedicated as property of a society of the German Evangelical Synod of North America, and was used in harmony therewith till some time in 1896, when, on account of difficulty about obtaining a minister to serve the society, defendant Schlicting, a minister of the Lutheran Church and sect, materially different in its religious belief and distinct from that of the Wayne society, was employed to serve it for one year, at the end of which period a majority of the members of the society again employed Schlicting, the minority protesting, on the ground that they desired and were entitled to have a minister in harmony with the society as a member of the German Evangelical Church Synod of North America. Pursuant to such employment, notwithstanding such protest, Schlicting served the society till interfered with by the temporary injunction granted in this action, and in so doing confined his ministrations in harmony with the sect to which he belonged, the German Lutheran Church, preaching the belief of such sect, which, as before indicated, was materially out of harmony with the religious belief of the German Evangelical Church of the Synod of North America, and assumed the right to, and did, prevent the use of the church edifice by a minister of the society to which the church belonged.

On such facts the court concluded:

(1) The German Evangelical St. Paul's Society of the Town of Wayne, Lafayette county, Wis., since May, 1888, has been a church corporation under the laws of this state, subject to the system of church government of the German Evangelical Synod of North America.

(2) The title to the church edifice and property described in the complaint is held in trust by the trustees of the Wayne society, for the use of such society as an organization of the German Evangelical Synod of North America, and for the exclusive use of such society in harmony with the religious views of the German Evangelical Church and such synod of such sect.

(3) Defendants having perverted the property of such society from its legitimate use, plaintiffs, though constituting a minority of the members of the society, have a right to such redress as will prevent the further perversion of its property, and as will compel the use of such property in conformity with the religious belief of the German Evangelical Church, and the system of government of the synod of such church for the district in which the society is located.

(4) Plaintiffs are entitled to judgment accordingly and as prayed for in the complaint.

Judgment was rendered in accordance with the aforesaid conclusions, from which this appeal was taken.

Wilson & Martin, for appellants.

Thomas Luchsinger and Orton & Osborn, for respondents.

MARSHALL, J. (after stating the facts).

Thirty-six exceptions were filed to the findings of fact, but counsel for appellants made no specific assignment of error in regard to such findings in accordance with the rules and settled practice of the court. We find in counsel's brief a statement of their claim in a general way, and a statement that the court erred in so far as the findings and conclusions of law are inconsistent with such view, and on that we are referred to the pages of the printed case where the findings and conclusions of law may be found, and in like manner to the exceptions thereto, particularly to 12 of such exceptions by their numbers. No attempt was made by counsel in their brief to point out evidence that is contrary to the findings or want of evidence to support them, but it is suggested that we carefully study the printed case of 143 pages, with a view of discovering whether any of the exceptions were well taken or not. With such a presentation of the appeal, judicial duty requires only a sufficient examination of the case to determine whether the findings and pleadings support the judgment. Error is presumed against on appeal, and unless, as to the facts at least, that is met by some distinct assignment of error or errors, and some attempt to discuss such assignments and to point out evidence or want of evidence to warrant them or some of them, it will prevail. The general rule is that a judgment on appeal will be affirmed, unless prejudicial error not only exist, but be made to affirmatively appear. Eaton v. Patchin, 20 Wis. 485;Harvester Co. v. Teasdale, 91 Wis. 59, 64 N. W. 422;Menz v. Beebe, 102 Wis. 342, 77 N. W. 913, 78 N. W. 601;Alexander v. Irwin, 20 Neb. 204, 29 N. W. 385;Pottawattamie Co. v. Marshall Co., 56 Iowa, 410, 9 N. W. 326;McVey v. Johnson, 75 Iowa, 165, 39 N. W. 249;Papke v. Papke, 30 Minn. 260, 15 N. W. 117. That rule means more than that error may be discovered in the record. It requires that the person alleging error must point it out and make it affirmatively appear in accordance with the rules and practice of the court. That requires error to be definitely assigned and a goodfaith attempt made to present it to the court for consideration; and where the claim is that a finding of fact is contrary to the...