Fulbright v. Higginbotham

• Decision Date: 24 March 1896
• Citation: 34 S.W. 875,133 Mo. 668
• Parties: Fulbright et al. v. Higginbotham, Appellant
• Court: Missouri Supreme Court

34 S.W. 875

133 Mo. 668

Fulbright et al. v. Higginbotham, Appellant

Supreme Court of Missouri, First Division

March 24, 1896

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

Rechow & Pufahl for appellant.

(1) The court improperly admitted the minutes kept by plaintiffs, as there was a record kept by the proper officer. Shehan v Ins. Co., 53 Mo.App. 355; Lewin v. Dille, 17 Mo. 69; Ins. Co. v. Lonergran, 21 Mo. 49; Carr v. Carr, 36 Mo. 411; Price v. Hunt, 59 Mo. 261; Olive v. Morgan, 28 S.W. 573. (2) The court improperly excluded the evidence offered by defendants as to the contents of the subscription, every reasonable effort having been made to find the subscription list. Strain v Murphy, 49 Mo. 337; Waggoner v. Alvord, 16 S.W 1083. (3) The defendants' demurrer should have been sustained for the reason that it was shown that defendants had the same rights in the premises that the plaintiffs had. Wilson, the third trustee was neither party plaintiff nor defendant but according to the testimony was acting with defendants. Both factions claimed a legal right to the premises. Under such circumstances injunction will not lie. 1 High on Injunctions [2 Ed.], secs. 698, 699, 701, 712; Owen v. Ford, 49 Mo. 436; Echelkamp v. Schrader, 45 Mo. 505; Weigel v. Walsh, Id. 560; Bailey v. Ware, 24 Mo.App. 186; Carney v. Headley, 22 L. R. A. 233; Carney v. Headley, 32 Fla. 344; Barkler v. Railroad, 10 Mo.App. 453; Taylor v. Todd, 46 Mo.App. 555; Burgess v. Castleman, 41 Mo.App. 480. (4) Thomas Higginbotham had the right to direct appellant to enter, especially when it is shown that the other legal trustee was acting with appellant's faction. Trustees named in a deed can only be removed for cause; merely ceasing to be members does not forfeit the trusteeship. Bouldin v. Alexander, 15 Wall. (U S.) 131; Jones v. State, 44 N.W. 658, and authorities there cited. See, also, authorities under point 5. (5) The action of one faction in declaring, without notice, hearing or evidence, the members of the other suspended, will in a civil action involving property rights be considered of no effect. Congregation v. Otterson, 49 N.W. 24; Determan v. Leuhrman, 37 N.W. 331; Jones v. State, 44 N.W. 658. The action of plaintiffs' faction did not have the effect of expelling appellant. Authorities supra. (6) Under Baptist usage a member charged with heresy must have ample opportunity to defend himself. Church Manual, by J. M. Pendleton, page 141. Baptist Church Directory, by Edward T. Hiscox, pages 98, 99, and notes.

Upton & Skinker for respondents.

(1) The petition states a good cause of action, and the demurrer was properly overruled. Appellant wholly fails to state why, or wherein the petition is objectionable. Nor why there is a nonjoinder of parties. (2) Thomas Higginbotham could give appellant no warrant to enter the church and remove the lock. Although Thomas Higginbotham was named in the deed as a trustee, yet he was only a temporary trustee, and when the church organized and elected deacons, who by the laws of the church, have charge of the property and business of the church, he ceased to be a trustee, or at best was but a naked trustee, to hold the title for the church, and had no power or right coupled with his trusteeship. But the deed was to Fulbright, Wilson, and Higginbotham and their successors, and respondents being the deacons at the time the suit was brought, they were the successors of the original grantees. (3) When a church faction wrongfully claims to be the true church, and assumes the name of the church from which it has been expelled, injunction is the proper remedy, and a court of equity having jurisdiction of the cause will restrain the faction from interfering with the church property, and give entire relief. Watson v. Jones, 13 Wall. 679. (4) The action of a church, whether regular or irregular, when the subject-matter of dispute is purely ecclesiastical in its character, as the expulsion of a member for heresy, is absolutely binding upon the civil courts. Watson v. Jones, 13 Wall. 679; State ex rel. v. Farris, 45 Mo. 183; McRoberts v. Mondy, 19 Mo.App. 26. (5) In equitable actions where all the evidence is not preserved in the record, the only questions for the appellate court to review are, whether the court had jurisdiction and the petition states a cause of action. Roberts v. Bartlett, 26 Mo.App. 611.

OPINION

Macfarlane, J.

This suit is brought by plaintiffs as deacons and trustees of the Pleasant Hill Baptist church, in Polk county, to restrain the defendants, and those acting with them, from claiming and assuming to be such church, from using the church name, and from entering on or interfering with the property, books, and records of said church; and to adjudge that the church represented by plaintiffs is the true Pleasant Hill Baptist church, and is entitled to hold, govern, and control the property, books, and papers and records thereof.

The petition charges in substance these facts: "That plaintiffs are the deacons and trustees of Pleasant Hill Baptist church, an unincorporated religious society of the Baptist denomination. That as such they represent themselves and others, the members of that church, and are entitled to the control and possession of the property of the church, and the management of its business affairs. That on or about August, 1888, the defendants were expelled, and ceased to be members, and to have any right to control the business, property, or affairs of said church, in any manner. That on September 15, 1884, Pleasant Hill Baptist church obtained for itself certain lands for church and cemetery purposes, which were conveyed by deed to Thomas Higginbotham, Jason Fulbright, and James Wilson, and their successors in office, as trustees of said church. That since said time Higginbotham and Wilson have ceased to be members and trustees. That the church erected a house on the premises, and that the same is used for church and cemetery purposes. That the defendants and a large number of others claim to be Pleasant Hill Baptist church, and assume the right to control and use the property, against the will of the plaintiffs and those whom they represent, and threaten to continue such unlawful acts. That defendants and other unauthorized persons have at divers times, and repeatedly up to the time of the bringing of this action, continued to enter upon said property without the consent of plaintiffs, and against their wishes and orders. That defendants and those acting with them have possession and control of the title papers, books, and records of said church."

Defendants answered separately, denying each allegation of the petition. By his answer defendant Gideon Higginbotham admitted that in July or August, 1888, an attempt was made to expel him and his codefendant G. M. Botts from said church by resolution, but charges that such action was taken without preferring charges against them, except as contained in the resolution, and without notice. That said proceedings were brought about by conspiracy and fraud on the part of plaintiff and those members of the church acting with them, by secretly and collusively securing the attendance of their friends at the church meeting and by concealing from the friends of defendant their intention. That the congregation of the church numbered one hundred and seventy members and only forty-one voted for his expulsion, while twenty-nine voted against it, only seventy members being present; that some persons voting in the affirmative were not members and were not entitled to vote, and the whole proceeding was illegal and void. That he is and has ever been "recognized by the real congregation of the church as in good standing and has acted with them as represented by defendants and those acting with them, who constitute a majority of said congregation." He prayed that said fraudulent acts be set aside and for naught held, and for all proper relief.

The reply to this answer was a general denial.

It was shown that the Baptist church is congregational in form and government. That each church is sovereign and independent, and all matters of faith and discipline are determined by the vote of the members.

The church records were read in evidence. By these, it appears that in March, 1888, the congregation voted to ordain said defendant Gideon Higginbotham to the full work of the ministry and called upon certain other Baptist ministers to officiate with the pastor of that church in the ordination. At the April meeting the church met for the purpose of the ordination and seven elders of that and other churches were appointed to examine the applicant. This committee afterward reported the candidate unsound in the faith held by the church and refused to ordain him.

At the May meeting the congregation ordered the ordination to proceed, and the candidate was ordained by Elder G. M. Botts (one of the defendants herein), who was a member of said congregation, and William Palmer, an elder of another church.

At the August meeting of the church, 1888, the following resolution of the congregation was offered and adopted.

"Whereas Elders G. M. Botts and G. H. Higginbotham, members of the Baptist church at Pleasant Hill, Polk county, Missouri, have taught and are teaching doctrine that is contrary to the teaching of the word of God and the third article of the Baptist faith, relative to the fall of man, in that they teach that the sin of Adam did not affect his posterity spiritually, and that the infantile world stands just where Adam stood before he sinned, and that the heathen who are without the gospel stand just where the infant now is; and,

"Whereas Their teachings are leading some off after them, causing division and trouble among the Baptists...