Kile v. Anderson

• Decision Date: 15 January 1924
• Citation: 182 Wis. 467,196 N.W. 762
• Parties: KILE v. ANDERSON ET AL.
• Court: Wisconsin Supreme Court

182 Wis. 467

196 N.W. 762

KILE

v.ANDERSON ET AL.

Supreme Court of Wisconsin.

Jan. 15, 1924.

Appeal from Circuit Court, Portage County; Byron B. Park, Judge.

Action by N. F. Kile against Carl Anderson and others. Judgment for plaintiff against defendants Nick Larson and Marcus Hansen only, and they appeal. Reversed and remanded for new trial.H. J. Severson, of Iola (B. R. Goggins, of Wisconsin Rapids, of counsel), for appellants.

Fisher & Cashin, of Stevens Point, and M. E. Davis, of Green Bay, for respondent.

JONES, J.

This is an action for conspiracy against four defendants for fraudulently and maliciously procuring the suspension of the plaintiff as a pastor in the Norwegian Lutheran Church of America. The jury found that there was no consiracy, but judgment was rendered against the defendants Carl Anderson and Anton Anderson individually, and as to the other two defendants the action was dismissed.

In the year 1917, the plaintiff became pastor of two Lutheran Churches, at New Hope and Alban, in Portage county, under a joint contract giving the right to terminate his services on a two-thirds vote of the members. He lived in a parsonage on a church farm at New Hope. In 1919, complaints arose in both churches against the pastor, and in the Alban congregation there was more than a two-thirds vote requesting his resignation, and he resigned as to that congregation.

At New Hope a majority, but not two-thirds, requested his resignation, but he refused to resign. The higher church officials advised him to resign from New Hope, but he declined and continued to keep possession of the church and other property, causing much division in the congregation. In June, 1920, an action was commenced by the New Hope congregation to restrain him from acting as pastor.

On June 16, 1920, there was a general council of the whole church in Minneapolis, in which these difficulties were discussed and in which the plaintiff signed an agreement, in part as follows:

“Undersigned admits that he has dealt unwisely and not in the interest of the Kingdom of God by ignoring the situation in the congregation, stubbornly refusing to heed to good advices from the church dignitaries or officials; and therefore asks the forgiveness of the church body.

Undersigned promises to resign from New Hope congregation as soon as he arrives home, without insisting on his three months' stay after resignation as the constitution grants.

[Signed] N. F. Kile.”

The committee advised that all charges against him be withdrawn, and the report was accepted. The plaintiff returned home, and on June 17th consulted his attorney at Stevens Point. On June 23d there was a meeting between the president of the New Hope congregation and their attorney and the attorney for the plaintiff respecting the settlement of the pending suit. Thereafter the president of the congregation called a meeting of the trustees which was held later in the same day, and the record of the meeting is as follows:

“June 23, 1920. Meeting of the board of trustees of the New Hope congregation held in Farmers' State Bank rooms at Iola. All the board members were present. We the trustees of New Hope congregation agree to settle with Rev. Kile on the following plans: To pay him (Kile) $350 with the agreement that he move out of the parsonage on or before the 15th of July, and to give up all the books and property belonging to the congregation peaceably according to his stipulation signed by him at the Minneapolis conference. Above was carried by the following votes: Five voted, ‘Yes'; and Ludvig Hanson and Halver Martindson voted, ‘No.’ ”

On June 28, 1920, a stipulation was entered into between the board of trustees of the New Hope church and plaintiff. The stipulation was entitled in the then pending suit in which the congregation was plaintiff and N. F. Kile and Thomas Thompson were defendants. There were recitals relating to the commencement of the suit and the transactions at the convention in Minneapolis, and the agreement there made, and the stipulation then proceeded as follows:

“It is hereby stipulated:

That the defendant, Rev. N. F. Kile, shall and does hereby resign as pastor of the plaintiff congregation, said resignation to take effect on the 1st day of July, 1920, and without the right of a three months' stay thereafter, as provided in the constitution of the plaintiff.

2. The plaintiff shall and does hereby agree to pay to the defendant, N. F. Kile, his salary as pastor of the plaintiff congregation until the 1st day of July, 1920, said salary to be paid within thirty days thereafter, amounting to $350.

3. The defendant, N. F. Kile, shall and does hereby agree to remove from the farm and property belonging to the plaintiff on or before the first day of August, 1920, and to deliver possession to the plaintiff by said last-named date; and in case of his failure to do so, judgment may be entered herein, awarding possession of the farm to the plaintiff without the requirement of a separate action.

4. The defendant, N. F. Kile, agrees that he will not in any way attempt to influence the members of the plaintiff congregation, who have been members of his faction in the recent trouble in the said congregation, to withdraw from said congregation.

5. That the court may make an order confirming this stipulation; and that it shall not be necessary for an acceptance of said resignation in order that the same shall be effective but that the order of the court confirming this stipulation shall constitute an acceptance by the plaintiff congregation of the said resignation of the defendant Kile as pastor.

6. That the above-entitled action shall be dismissed without costs to either party.”

It was signed by the president of the board of trustees, the respective attorneys, and Mr. Kile.

Although several copies were made, none was delivered to the president or any officer of the church. This is the document which will be referred to as the court resignation.

On July 1st, this stipulation was confirmed by the court, and the case was dismissed September 25th. On July 31st, plaintiff left the farm, but stayed with friends and relatives in the parish until August 23d, when he and his wife went to La Crosse, where he remained until September 4th.

On September 5th, the four defendants sued in this action were at Scandanavia, Waupaca county, where proceedings were to be had for laying the corner stone of a new college. The defendant Anton Anderson there met the Rev. Mr. Nordby, president of the Eastern district, and it was arranged that later in the day there should be a meeting to discuss the subject of securing a new pastor at New Hope.

Accordingly, later in the day the four defendants met the Rev. Mr. Nordby, and he commenced to ask about conditions in the New Hope congregation. The answers which were made to these questions and the subsequent suspension of the plaintiff led to the bringing of an action by the plaintiff against Carl Anderson and Mr. Nordby which was dismissed after an adverse examination of the Rev. Nordby had been held.

In this conversation, in reply to questions, some of the defendants expressed the view that conditions in New Hope were as bad or worse than ever. The Rev. Mr. Nordby then asked if Kile had resigned, and one of the defendants, probably Anton Anderson, asked if he referred to the resignation mentioned at Minneapolis, and he answered, “Why, certainly,” and Anton Anderson said that he did not know of any and had no record of it. One of the four, referring to Carl Anderson, said: “Here is the secretary of the congregation, ask him,” and he answered that there was nothing on record to show the resignation, and he did not know of any.

Rev. Nordby then asked if the plaintiff had moved away or moved out of the congregation, and one of the four answered that he had moved out of the parsonage but not, as he knew, out of the congregation. The matter of hiring a new pastor was then taken up, and Nordby recommended one for the place.

On September 7th, there was a meeting of the church council held at St. Paul, which was attended by Rev. Nordby, in which he reported the information he had obtained, and the council without notice to the plaintiff temporarily suspended him. On September 15th, a report of the action of the council was published in The Lutheraneran, which had a circulation among about 35,000 subscribers.

In October, 1921, the suspension was withdrawn and the plaintiff became pastor in another church.

Before this action was begun, about June 24, 1921, an agreement in writing was made between Rev. Nordby and the plaintiff, in which it was admitted that the plaintiff had actually resigned on June 28, 1920; that the resignation came in a rather unusual way; and that the Rev. Nordby was not cognizant of the fact, but acted according to what he thought was reliable information, and that he and the church council had acted in good faith, and that nothing would be gained by further airing the case, and in order to come to a peaceable settlement, it was agreed that they mutually apologize and that this should be considered a final settlement between them and the church council.

[1] It is one of the contentions of appellants' counsel that the finding by the jury of no conspiracy negatived the liability of any of the defendants and that the action should have been dismissed on that ground. For this proposition counsel rely on the case of St. Louis & S. W. Ry. Co. v. Thompson, 102 Tex. 89, 113 S. W. 144, 19 Ann. Cas. 1250. This was an action in which conspiracy was alleged between a railroad company and several others to procure the expulsion of the plaintiff from the Brotherhood of Locomotive Engineers. The verdict of the jury was against the railroad company, but in favor of the other defendants.

The court held that under the facts the railroad company could not participate in the expulsion of the plaintiff from the order, and could only be held liable for the...