Mitchell v. Church of Christ at Mt. Olive

• Citation: 122 So. 341,219 Ala. 322
• Decision Date: 09 May 1929
• Docket Number: 5 Div. 13.
• Parties: MITCHELL ET AL. v. CHURCH OF CHRIST AT MT. OLIVE.
• Court: Alabama Supreme Court

122 So. 341

219 Ala. 322

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

5 Div. 13.

Supreme Court of Alabama

May 9, 1929

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

Bill for injunction by the Church of Christ at Mt. Olive, Lee County, against V. D. Mitchell and others. From a decree overruling demurrer to the bill and motions to dissolve and discharge the temporary injunction, respondents appeal. Affirmed.

Samford & Samford, of Opelika, for appellants.

Denson & Denson, of Opelika, for appellee.

FOSTER J.

A bill of the nature involved on this appeal praying for an injunction affecting the property rights of a Baptist Church may properly be filed in the name of the church, though an unincorporated association. Sections 5723 et seq., Code; Sentell v. Friendship Baptist Church, 214 Ala. 584 108 So. 517.

The trial court granted a temporary injunction, and overruled a motion to dissolve it and a demurrer to the bill.

We do not agree with appellants' contention that the bill is subject to demurrer because it does not state that the congregation authorized the legal procedure. This means, when properly analyzed, that counsel filed the bill without making an express showing of due authority to do so. In this respect section 6255 of the Code seems to control, though it is stated to be only declaratory of the common law. To require a showing as to such authority, it must be challenged at the first term, by appropriate averment, stating the facts which induced such averment. Chamberlain, Miller & Co. v Abbott, 152 Ala. 243, 44 So. 637, 126 Am. St. Rep. 30; Ashby Brick Co. v. Ely & Walker, etc., Co., 151 Ala 272, 44 So. 96; Daughdrill v. Daughdrill, 108 Ala. 321, 19 So. 185. The proper method of making such a test is by a motion, section 6255, Code; Holman v. Hiatt, 215 Ala. 526, 112 So. 111, or by a plea, as was done, under circumstances similar to those of this case in Blount v. Sixteenth St. Baptist Church, 206 Ala. 423, 90 So. 602. See Pallilla v. Galilee Baptist Church, 215 Ala. 667, 112 So. 134. The fact that complainant is unincorporated can make no material difference in this respect.

The bill contains all the allegations held in our decisions to be essential, and was for a purpose which has been settled to give an equity court jurisdiction. Blount v. Sixteenth St Baptist Church, supra; Sentell v. Friendship Baptist Church, supra. It was not subject to any of the demurrers...