Hunter v. Swadley

• Citation: 207 S.W. 730,141 Tenn. 156
• Parties: HUNTER v. SWADLEY ET AL.
• Decision Date: 30 November 1918
• Court: Tennessee Supreme Court

207 S.W. 730

141 Tenn. 156

HUNTER v. SWADLEY ET AL.

Supreme Court of Tennessee.

November 30, 1918

Certiorari to Court of Civil Appeals.

Suit by John W. Hunter against R. A. Swadley and others. From a decree for defendants, complainant appealed, and, the Court of Civil Appeals having reversed the decree, defendants bring certiorari. Decree of Court of Civil Appeals affirmed.

GREEN J.

This suit is brought to collect from the Central Baptist Church of Johnson City, hereafter called the "new church," a judgment alleged to have been obtained by C. N. Brown & Co., for the use of complainant Hunter, against the Missionary Baptist Church, or First Baptist Church, an unincorporated religious association, formerly existing at Johnson City, hereafter called the "old church."

The chancellor was of opinion that complainant was not entitled to satisfy said judgment out of the assets of the new church. The Court of Civil Appeals was of contrary opinion, reversed the decree of the chancellor, and directed the subjection of the property of the new church to said judgment. Complainant attached the property of the latter organization.

The complainant appears to have once been affiliated with the old church, and this controversy has engendered much feeling. The case has been prepared and presented elaborately, with learning and ability quite disproportionate to the amount involved.

Numerous questions are raised, and the case will be more readily understood by stating a portion of the facts in connection with the disposition of each point.

Two general questions are to be determined: First, whether complainant obtained a valid judgment against the old Baptist church; and, second, whether the property of the new Baptist church can be taken for the payment of this judgment.

The original bill of C. N. Brown & Co., for the use of this complainant, was filed against R. R. Bayless, George P Crouch, and T. G. Galloway, as trustees of the old church and against J. W. Houtz and George P. Crouch, as a sales committee of that church. It averred liability on the part of the church to complainants therein for services as real estate agents in an effort to sell certain property belonging to the church. An answer was filed to this bill, many defenses interposed, and proof taken. The bill was dismissed by the chancellor, but his decree was reversed by the Court of Civil Appeals, and the decree of the Court of Civil Appeals was affirmed by this court, and on September 26, 1912, a decree was rendered in this court in favor of the complainants against R. A. Bayless, George P. Crouch, and T. G. Galloway, as trustees, and J. W. Houtz and George P. Crouch, as a sales committee of said church, for the sum of $587.80 and costs.

It is first contended by the defendants herein that this was not a valid judgment against the old church. It is said that two of the parties named as trustees of said church were not trustees thereof when the suit was brought, and it is furthermore argued that it is necessary to make the members of a voluntary association defendants in order to secure a judgment binding against the property of such an association.

We have recently had occasion to consider the character of an unincorporated religious association. We have held that such an association, under the statutes, is a legal entity for certain purposes and within a limited sphere enjoys quasi corporate existence. We have said such an association might sue and be sued in respect to the few contracts it was authorized to make, and that "such an association should plead and be impleaded through its trustees." Wilson v. M. E. Zion Church, 138 Tenn. 398, 198 S.W. 244.

It is doubtless true, where the interests of the trustees are adverse to those of the association, or perhaps under other circumstances, the association may be impleaded by naming its members as defendants. Headrick v. Ruble, 78 Tenn. (10 Lea) 15. But it can be reached through its trustees.

We do not think that jurisdiction of the old church was acquired by naming as parties defendant Houtz and Crouch as a sales committee.

Prior to the filing of the original suit, Bayless, Crouch, and Galloway were the trustees of the old church. It appears, however, from the minutes of that organization, that Crouch and Bayless resigned October 6, 1909. The original bill was filed November 4, 1909. So, at the time the first suit was brought, Crouch and Bayless were not actually trustees.

Although the church was not, therefore, properly impleaded in such a way as to bind its property, had a suitable defense been interposed, we think that the subsequent procedure of the church precluded any objections to the judgment against it on this account.

Beyond all question, the church treated this suit as one against it and as an effort to hold its property. While the authority of the trustees and the sales committee to bind the church for this agent's commission was denied, nevertheless the church answered the original bill through these very defendants, named as its representatives.

On December 1st, at a congregational meeting, the following resolution was passed:

"Moved and carried that the following recommendations from the board of deacons be adopted, viz.:

'That, whereas, C. N. Brown & Co., by J. W. Hunter, has filed a bill in court in an endeavor to extort the sum of $500.00 from the church, on the claim of commission:

We, therefore, recommend that the officers of the church be empowered to employ counsel to defend said cause.' "

In pursuance of this resolution, counsel were employed, and the suit was vigorously defended, and proof herein shows that this defense was made by the church. As a matter of fact, the trustees of the old church, at the time the original suit was brought, were Galloway, Vines, and Peoples. The complainants named Galloway, Crouch, and Bayless.

The case then is merely one of misnomer--a suing of a defendant by a wrong name. Such a matter is one of abatement, only, and, if the defendant misnamed makes actual appearance and defends on the merits, he cannot later take advantage of the misnomer, and the judgment, though rendered according to the style of the suit, is binding against the real defendant.

"Suing a defendant by a wrong name is a matter of abatement only and will not avoid a judgment against him if he has been actually served. An actual appearance is the equivalent of personal service within the meaning of this rule. Hence, where a party is sued by a wrong name and he appears to the suit and does not plead the misnomer in abatement, and judgment is rendered against him in the erroneous name, execution may be issued upon it in that name and levied upon the property and effects of the real defendant. Even a corporation cannot take advantage of its being incorrectly named as a party defendant in an action otherwise than by plea in abatement. Failing to make such a plea, a judgment against it cannot be avoided because of a misnomer." 15 R. C. L. p. 599; Clark & Marshall on Corporations, vol. 1, p. 154; Black on Judgments, § 213.

It follows, for the reasons stated, that the original judgment against the narties named as trustees of the First Baptist Church, or Missionary Baptist Church, bound the property of that organization, inasmuch as it entered appearance, waived the misnomer, and defended on the merits.

All questions as to the authority of this organization to incur such an indebtedness, and its liability for said indebtedness, are foreclosed by the decree in the former case, inasmuch as the old church was before the court, and these questions there adjudicated. We will not go into such matters again.

During the pendency of this suit against the old church, the Central Baptist Church, or the new church, was organized, but not at first incorporated. It was composed, principally, of members of the old church and of the members of another church, known as the Roan Street Baptist Church. The old church voluntarily turned over all of its property to the trustees of the new one, and the latter sold this property to innocent purchasers for value, for about $13,000. This sum was invested by the new church in other...