Providence Baptist Church of San Francisco v. Superior Court in and for City and County of San Francisco

• Decision Date: 12 December 1952
• Citation: 251 P.2d 10,40 Cal.2d 55
• Parties: . S. F. 18648. Supreme Court of California, in Bank
• Court: California Supreme Court

Page 10

251 P.2d 10

40 Cal.2d 55

PROVIDENCE BAPTIST CHURCH OF SAN FRANCISCO et al. v. SUPERIOR COURT in and for CITY AND COUNTY OF SAN FRANCISCO.

S. F. 18648.

Supreme Court of California, in Bank.

Dec. 12, 1952.

Rehearing Denied Jan. 8, 1953.

Edward D. Mabson, San Francisco, for petitioners.

Joseph E. Isaacs, Alan H. Critcher, Delany, Fishgold & Minudri and Joseph A. Murray, San Francisco, for respondent.

CARTER, Justice.

Prohibition is sought to restrain further proceedings by respondent court in an action pending therein in which Providence Baptist Church of San Francisco, a nonprofit corporation, and the trustees of the corporation are plaintiffs and F. B. Banks, the pastor of the church, is defendant.

The action is one for declaratory relief in which it was asserted by plaintiff that defendant had been regularly and properly discharged as pastor of the church but refused to vacate the position and surrender documents and funds of the church. Issue was joined by defendant asserting that he is the pastor of the church and rightfully holding his position.

The action was tried for ten days before the court without a jury. Findings were made in which it was stated that the plaintiff church is a non-profit corporation duly organized and the trustees named were in 1950 the duly elected trustees of the corporation; that prior to October 1, 1950, defendant was the pastor and spiritual leader of the church but that a resolution removing him, to become effective on October 1, 1950, had been adopted by the trustees on September 15, 1950, and, at a meeting of the members of the congregation and corporation on September 16, 1950, a resolution had been adopted purporting to remove defendant as pastor as of October 1, 1950; that in spite of the resolutions defendant refused to vacate the position; that defendant and the secretary of the corporation have in their possession funds of the church and defendant has made no report thereof except on September 6, 1950, and two years prior thereto; that defendant has in his possession records of the corporation showing its assets but refuses to deliver them to the trustees; that certain described real property is owned by the corporation; that defendant claims but has no interest therein; that defendant organized the church on June 6, 1943 and it was incorporated on July 26, 1945, and defendant was pastor from the beginning; that a 'full, free and fair' election cannot be conducted by defendant or the officers of the church and it is to its members' best interest that an election be held under the supervision of a court appointed referee to determine whether defendant shall be removed as pastor; that the articles of the corporation do not specify the number of trustees, but that there were three originally; that the only election of directors ever held was on August 21, 1950, when plaintiffs trustees (three of them) were elected and on September 9, 1950, when two more were elected; that no by-laws have been adopted; that the commencement of the action was authorized by the trustees but the 'church' employed no counsel to defend the action; that defendant is the pastor and spiritual leader of the church; and finally, that a controversy exists and the court has jurisdiction.

In its interlocutory judgment the court declared the matters so found and further declared: That the resolutions purporting to remove defendant as pastor did not do so; that the trustees are entitled to the funds and records of the corporation; that a named referee is appointed to hold an election among all the members after due notice to determine whether defendant should be removed as pastor and a named referee is appointed to take an account to ascertain what defendant owes the corporation; and reserving jurisdiction to make such further orders as might be necessary when the referee's reports were in.

Defendant's counsel filed notice of appeal from the interlocutory judgment on behalf of defendant and purportedly on behalf of the corporation, although as seen from the findings the corporation was a plaintiff in the action and represented by other counsel and the action was duly instituted by the duly elected trustees of the corporation. That appeal was dismissed by the District Court of Appeal, First District, division One, on October 22, 1951, on the grounds that the judgment was interlocutory and hence not appealable. See Erickson v. Boothe, 35 Cal.2d 108, 216 P.2d 454; Lacey v. Bertone, 33 Cal.2d 649, 203 P.2d 755; Lyon v. Goss, 19 Cal.2d 659, 123 P.2d 11; Western Gulf Oil Co. v. Title Ins. etc. Co., 77 Cal.App.2d 217, 175 P.2d 56.

The petition for prohibition names the corporation and defendant as petitioners and is verified by defendant and Irene Parker who asserts that she is the secretary of the corporation. Counsel represents, himself as attorney for defendant and the corporation. Inasmuch as he was not counsel for the corporation in the main action (because the corporation was one of the plaintiffs in that action and he represented the defendant, and no substitution of attorneys appears) we will treat the petitioner here as being defendant in the action.

In his petition, petitioner alleges the procedural events that have transpired and then proceeds with many factual allegations such as: The existence of the corporation; that the church is a local independent entity owing no allegiance to any higher authority; that there are three directors of the corporation, of which petitioner is one and Irene Parker and Robert Fite are the others; that the form of the church is not congregational in that the members have no voice in its government, since deacons are appointed by the pastor and they in turn choose and remove the pastor. The return to the petition asserts that the church has a congregational government. All of those things were presumably determined at the trial of the action and we do not have a transcript of the proceedings. Implicit in the findings and interlocutory judgment is the conclusion that the church is congregational in form and the members select the officers including the pastor. Under such circumstances if it is decided, as it is later herein, that the court has jurisdiction to determine whether the church has followed the procedure established by its usage, custom, rules and regulations in respect to the pastor's position, then the court had jurisdiction to decide rightly or wrongly what those usages and regulations were and the judicial process should not be halted by prohibition. We take, therefore, the facts as appearing in the interlocutory judgment and findings.

Preliminarily we have the question of whether a writ of prohibition is the appropriate remedy. Assuming that a jurisdictional question is presented (whether a court may adjudicate the issues presented which arise out of a church controversy), there is no appeal from the judgment entered because it is interlocutory and no appeal lies from the order appointing a referee, see Fallon v. Brittan, 84 Cal. 511, 24 P. 381; Gates v. Walker, 35 Cal. 289; 22 Cal.Jur. 701, there still remains the question of whether an appeal from the final judgment after the reference is adequate for of course an appeal lies from it. Prohibition will not issue when there is another adequate remedy. City of San Diego v. Superior Court, 36 Cal.2d 483, 224 P.2d 685. There is still to be had the reference by the referee to take an account and conduct an election, his report to the court, and its adjudication thereon. Petitioner claims as reasons why he will be injured by having those things done and an appeal thereafter taken, that he might lose the election and be removed from his position. There is a serious obstacle to a review of the interlocutory judgment by the writ which petitioner requests because there is nothing there to prohibit. The interlocutory judgment has been rendered and the referee appointed. In general, a writ of prohibition issues only to prevent the commission of a future act and not to undo an act already performed. Evans v. Superior Court, 14 Cal.2d 563, 96 P.2d 107; 21 Cal.Jur. 581-3. However, here things remain to be done, that is, the carrying out of the references and the adjudication thereon. If there is no jurisdiction to conduct the election there was none to make the interlocutory judgment. Hence the basic objections are to that judgment. While we do not have a transcript of the trial proceedings leading to judgment yet we do have the findings and judgment.

It is the general rule 'that the remedy in the ordinary course of law by an appeal from the judgment at the end of the trial is not adequate when the court has no jurisdiction to proceed with the action and no appeal is available before final judgment. Tomales Bay, etc., Corp. v. Superior Court, 35 Cal.2d 389 (392), 217 P.2d 968.' City of San Diego v. Superior Court, supra, 36 Cal.2d 483, 485, 224 P.2d 685, 686. While here a partial trial has been had there remain things to be done which would be injurious to petitioner. 'Where an order is not appealable, but is reviewable only upon appeal from a subsequent judgment, various factors, such as expense of proceeding with a trial and prejudice resulting from delay, may operate to make that remedy inadequate.' Phelan v. Superior Court, 35 Cal.2d 363, 370, 217 P.2d 951, 955. We hold therefore that petitioner's remedy by appeal from the final judgment is not adequate. Hence prohibition is the proper remedy.

We come, therefore, to the merits of the jurisdictional question. As long as civil or property rights are involved, the courts will entertain jurisdiction of controversies in religious bodies although some ecclesiastical matters are incidentally involved. Rosicrucian Fellowship v. Rosicrucian Church, 39 Cal.2d 121, 245 P.2d 481. That there are civil and property rights present is apparent from the findings and judgment. The real property of the organization and funds collected are involved....