Methodist Episcopal Church, South v. Decell

• Decision Date: 16 February 1939
• Docket Number: 12517.
• Citation: 1 S.E.2d 432,187 Ga. 526
• Parties: METHODIST EPISCOPAL CHURCH, SOUTH, Inc., et al. v. DECELL et al.
• Court: Georgia Supreme Court

1 S.E.2d 432

187 Ga. 526

METHODIST EPISCOPAL CHURCH, SOUTH, Inc., et al. v. DECELL et al.

No. 12517.

Supreme Court of Georgia

February 16, 1939

G. Seals Aiken and Jay D. Bradley, both of Atlanta, for plaintiffs in error.

McElreath Scott, Duckworth & DuVall, of Atlanta, for defendants in error.

On May 30, 1938, a motion in the name of 'Methodist Episcopal Church, South,' and eleven named individuals as members and officials of 'Methodist Episcopal Church, South,' was filed in the superior court of Fulton County to revoke the grant by that court of articles of incorporation to 'Methodist Episcopal Church South, Inc.,' on May 20, 1938. It was alleged in the motion that 'Methodist Episcopal Church, South,' is a religious organization which has existed since 1845, that during that time it has had the exclusive use of the name 'Methodist Episcopal Church, South,' and has not now abandoned the use of that name; that the applicants for the charter of incorporation as 'Methodist Episcopal Church South Inc.,' did not obtain the consent of 'Methodist Episcopal Church, South,' or give 15 days notice in writing to such church, both as required by statute; and that the use of the name 'Methodist Episcopal Church, South Inc.' by the corporation would cause great confusion and would cast a cloud upon the titles to the properties owned by 'Methodist Episcopal Church, South.' The prayer of the motion was as follows: 'Wherefore, your petitioners file these their objections to the use of the name of 'Methodist Episcopal Church, South,' as the name of the corporation whose charter was granted on the 20th day of May, 1938, by the Honorable E. D. Thomas, judge of the superior court of the Atlanta circuit, and move to revoke said charter in so far as the name 'Methodist Episcopal Church, South,' is used in the name of said corporation, and pray: that a rule nisi be issued requiring the Methodist Episcopal Church, South Inc., and the applicants for its charter, to show cause before the Honorable E. D. Thomas, judge of the superior court of Fulton County, Georgia, why the prayers of this petition should not be granted.' A rule nisi was issued.

The defendants demurred to the motion both generally and specially, and filed an answer denying the material allegations of the motion. Upon a hearing the court refused to pass upon the special demurrers at that time, overruled the general demurrers, refused to require any evidence to support the motion, refused to allow the defendants to submit any evidence against it, and entered the following order upon the order granting the charter of 'Methodist Episcopal Church, South Inc.;' 'It being made to appear to the court that the within order dated May 20, 1938, was improvidently granted, said order is hereby revoked and set aside.' To each of the several rulings and...