Marich v. Kragulac

Decision Date27 January 1981
Docket NumberNo. 3-179A21,3-179A21
Citation415 N.E.2d 91
PartiesMirko MARICH, Elija Dukich, Ellia Zukanovich, Stevo Mileusnich, Rade Radakovich, Elija Popovich, Drago Vukas, Elija Kalinich, Marko Kosovac, Vojin Blesich, Vukman Martinovich, Sveto Torbica, Nick Bradash, Mike Bradash, Kosta Trkulja, Veso Kesich, Appellants (Plaintiffs Below), v. Nicholas KRAGULAC, Sam Zivanovic, Dusan Grozdanich, Olga Parsinari, Bogoljub Markovich, Nick Stepanovich, Milenko Zivanovic and Peter Tumbas, as Officials of the Serbian Orthodox Church-School Congregation of the Great Martyr St. George in East Chicago, Indiana, and V. Rev. John Marcetich, Pastor of the Serbian Orthodox Church-School Congregation of the Great Martyr St. George in East Chicago, Indiana, Appellees (Defendants Below).
CourtIndiana Appellate Court

Martin A. Karr, East Chicago, Charles W. Ainlay, George E. Buckingham, Goshen, for appellants.

David P. Stanton, Gary, Nick T. Stepanovich, David S. Stevens, East Chicago, for appellees.

HOFFMAN, Presiding Judge.

This is an appeal from an action to determine the rights of plaintiffs-appellants Mirko Marich et al. and defendants-appellees Nicholas Kragulac et al. to possession and control of the property of the Serbian Orthodox Church-School Congregation of the Great Martyr St. George in East Chicago, Indiana (St. George). The trial court dismissed the suit, ruling that it lacked subject-matter jurisdiction under the free exercise of religion clause of the First Amendment.

To comprehend the contentions of the parties and the disposition of the cause by the court below it is essential to examine the factual background of the case at some length. On August 21, 1907 fourteen individuals of Serbian extraction formed the Serbian Lodge Elijah in Indiana Harbor, Indiana. The lodge held periodic religious services at a hall in East Chicago and selected a Serbian Orthodox priest to serve as its pastor. On October 30, 1911 the members formed a congregation under the name "Serbian Orthodox Church of St. George." From its inception the parishioners have adhered to the doctrines, dogmas and tenets of the Serbian Orthodox religion.

By October 22, 1912 the St. George congregation had obtained title to several lots upon which the property in question is situated. The deed runs to the "Servian (sic) Orthodox Church of St. George of Indiana Harbor, in the State of Indiana" and restricts use of the property for 20 years to a residence or for church purposes.

In 1927 the Serbian Orthodox Diocese in the United States and Canada was created and the St. George congregation voluntarily entered into an ecclesiastical association with it. The Diocese as then constituted comprised the entire territory of the United States and Canada and was one of the dioceses of the Mother Church in Belgrade, Yugoslavia. The spiritual head of the Mother Church was the Serbian Patriarch and the power of appointment of bishops was vested in the Holy Assembly of Bishops. Prior to May 10, 1963, Bishop Dionisije was designated as Bishop of the United States and Canada Diocese. On that date the Holy Assembly, with the support of the Patriarch, divided the United States and Canada Diocese into three new dioceses. New bishops were appointed in each of these dioceses. Bishop Dionisije opposed this division on the grounds that the decision was dictated by a National Religious Commission appointed by President Tito and the Communist Party in Yugoslavia. Dionisije was subsequently defrocked on March 15, 1964. Basically, plaintiffs are loyal to the Mother Church and desire to retain an affiliation therewith while defendants are supporters of Dionisije in the local church.

As a result of this rift plaintiffs withdrew from the St. George congregation and organized another church under the same name. They purchased property of their own and built a church hall thereon. Additionally they developed plans and specifications for a new church on these grounds.

In 1965 plaintiffs filed a complaint for declaratory and injunctive relief. The prayer for relief illustrates the nature of this lawsuit. It states:

"WHEREFORE, the plaintiffs pray:

A. Plaintiffs pray for a declaratory judgment under Sections 3-1101 to 3-1116 of the Burns Indiana Statutes declaring that Chapter 117, of the Acts of 1955, of the General Assembly of the State of Indiana, is applicable to the defendants herein, and that they be restrained and enjoined from doing, or attempting to do, the acts hereinafter more fully set out.

B. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be prohibited from admitting or accepting, illegally and unlawfully, into membership, persons who formerly lost membership under the By-Laws of said religious society from the failure to pay dues.

C. That the defendants, individually, jointly, or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjoined from calling a meeting for a vote on an issue which is an issue not to be voted upon.

D. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjoined from attempting by diverse ways and means, falsely, unlawfully and wrongfully to perfect the schismatic minority movement locally under the guise of the so-called voting issue and under the guise of the so-called 'free election' by:

1. Bringing into membership persons who previously lost their membership due to their failure to pay due (sic), and persons living in localities outside of the jurisdiction of the said religious society.

2. Disseminating false, untrue and intimidating propaganda in order to influence prospective voters under the so-called 'free election.'

3. By the confiscation of books of records, from the proper and duly elected officers.

4. By performing illegally and unlawfully duties and functions of officers, without right, consent or privilege.

5. Drawing up and proposing to use deceiving ballots during packed house 'free election' on an issue which is not a votable (sic) issue.

E. That the defendants, individually, jointly, or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently required to cease, desist immediately from illegally and unlawfully performing duties and functions of proper and duly elected officers of said society, without their knowledge, right, consent or privilege.

F. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be enjoined to return books of records wrongfully and illegally confiscated from proper and duly elected officers of said religious society.

G. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjoined from holding monthly or yearly meetings composed of a 'packed house membership' in order to perfect the advancement of their schismatic minority movement, and to insure further their positions in office by permitting the aforesaid 'packed house membership' to vote.

H. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjoined from calling, setting or proposing to conduct or hold an annual meeting of the said religious society in any other month than the month of December.

I. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjoined from making any donations or expenditures from the religious society's funds to organizations or causes which are unpopular and in violation or in opposition to the true intention and trust of the religious society.

J. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjoined from permitting the V. REV. JOHN MARCETICH to officiate in the Holy Altar of the Serbian Eastern Orthodox Church-School Congregation of the Great Martyr St. George in East Chicago, Indiana, while he is under canonical suspension by the proper, superior and higher ecclesiastical church authorities.

K. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjointed (sic) from paying the V. REV. JOHN MARCETICH, who is under suspension (canonical), the full salary in direct violation of the Constitution of the Diocese, and of the Serbian Orthodox Church, and that he be paid only one-half (1/2) of his salary during the pendency of the suspension.

L. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjointed (sic) from prohibiting the proper administration of religious canonical services to the faithful of the religious society and church, by clergymen who have been proscribed by the presiding bishop, RT. REV. BISHOP FIRMILIAN OCOKOLICH.

M. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily and permanently enjointed (sic) from selling, mortgaging, or in any way encumbering the properties, monies or temporalities of said religious society, in violation of the By-Laws of the said religious society was created, and in violation of the Constitutions of the Diocese and the Serbian Orthodox Church.

N. That the defendants, individually, jointly or in concert, directly or indirectly, or their successors, agents, servants or followers, be temporarily...

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