Mitchell v. Church of Christ at Mt. Olive

• Decision Date: 29 May 1930
• Docket Number: 5 Div. 48.
• Citation: 128 So. 781,221 Ala. 315
• Parties: MITCHELL ET AL. v. CHURCH OF CHRIST AT MT. OLIVE.
• Court: Alabama Supreme Court

128 So. 781

221 Ala. 315

MITCHELL ET AL. v. CHURCH OF CHRIST AT MT. OLIVE.

5 Div. 48.

Supreme Court of Alabama

May 29, 1930

Appeal from Circuit Court, Lee County; S. L. Brewer, Judge.

Bill in equity by the Church of Christ at Mt. Olive against V. D Mitchell and others, with a cross-bill by respondents. From a decree sustaining a demurrer to the cross-bill, respondents appeal.

Affirmed.

See also, 219 Ala. 322, 122 So. 341.

Samford & Samford, of Opelika, for appellants.

Denson & Denson, of Opelika, for appellee.

BROWN J.

The equity of the original bill filed by and in the name of The "Church of Christ at Mt. Olive" was sustained on a former appeal, and it was then ruled that if the respondents appellants here, desired to challenge the authority of the solicitors to proceed in the name of the complainant, they should have invoked this inquiry at the first term after the filing of the bill, by motion or plea. Mitchell et al. v. Church of Christ at Mt. Olive, 219 Ala. 322, 122 So. 341.

The necessity for this course of procedure arises from the provisions of the statute authorizing suits in the name of an unincorporated organization or association, without naming any of the individuals constituting the organization or association. Code 1923, §§ 5723-5728.

While the suit so filed and prosecuted is in the name of the organization or association, it is in fact the members of the organization or association suing in the aggregate, and if those fostering and prosecuting the suit are using the name of the organization or association without right or authority, this is matter for abatement of the suit, and is analogous to the practice prevailing both in suits at law and in equity, requiring that when the party sued would deny the capacity in which the plaintiff or complainant sues, it must be done by plea. Sims, Ch. Prac. § 471. A like practice prevails where the defendant desires to question the sanity of the complainant. Sims, Ch. Prac. § 55.

The cross-bill concedes that the complainant church owns the property and is entitled to its use, but asserts that the respondents are the church, and they only have the right to use the name of the church and its property. This is a matter, under the ruling on the former appeal, that should have been presented by motion or plea, and the foregoing, it would seem, answers fully the appellants' contention.

The burden of appellants' contention is that the majority of the congregation, by the election of a pastor who belonged to a church in La Grange, Ga., which was not in fellowship with the Mt. Pisgah Primitive Baptist Church in Chambers county, Ala., a sister church recognized by the complainant, Mt. Olive Church of Christ, violated the ninth article of faith and practice of the complainant church, to the effect, "We believe that no minister has the right to administer the ordinances, only such as are *** in fellowship with the church of which he is a member," and become heretics; and that the use of the church property is a perversion of the trust with which the property is charged. (Italics supplied.)

We are not advised by the averments of the cross-bill as to the terms of the conveyance by which the title of the property passed to the church or its use, the averments of the cross-bill as last amended being: "Respondents aver and maintain that all the property which has been deeded to the Mt. Olive Church is subject to an implied trust and this trust is still alive, having been confided to the congregation to keep and dedicate to the old doctrines on which the old Mt. Olive Church was founded and constituted."

As was said in Manning et al. v. Yeager et al., 203 Ala. 185, 82 So. 435: "This court has had occasion in several cases to state, as from the temporal viewpoint, the nature of the constitution and government of Baptist churches. We may repeat to this extent: Each Baptist church is within itself a pure democracy; it is the right of the majority to rule; the will of the majority [as a general rule] having been expressed, it becomes the minority to submit." And in the opinion of the court a score or more cases are cited as sustaining these utterances.

In the early history of the Baptist Church in the United States, the Supreme Court of the United States, in Watson v. Jones, 13 Wall. 679, 724, 20 L.Ed. 666, declared the principles which should govern the civil courts in the determination of property rights not subject to an express trust between contending factions of an independent or congregational church. In that case it was said:

"The second class of cases which we have described has reference to the case of a church of a strictly congregational or independent organization, governed solely

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