Rottman v. Bartling

• Decision Date: 10 November 1887
• Citation: 35 N.W. 126,22 Neb. 375
• Parties: FREDERICK W. ROTTMANN ET AL., APPELLANTS, v. H. H. BARTLING ET AL., APPELLEES
• Court: Nebraska Supreme Court

35 N.W. 126

22 Neb. 375

FREDERICK W. ROTTMANN ET AL., APPELLANTS, v. H. H. BARTLING ET AL., APPELLEES

Supreme Court of Nebraska

November 10, 1887

APPEAL from the district court of Otoe county. Tried below before POUND, J.

Reversed.

S. H Calhoun, for appellants, cited: Ass. Reformed Church v Theological Seminary, 4 N.J.Eq. 77. Lucas v. Case, 9 Bush, 302. Groesbeeck v. Dunscomb, 41 How. Pr 302. Ferraria v. Vasconcelles, 23 Ill. 56. First Presbyterian Church v. Cong. Society, 23 Iowa 567. Winebrenner v. Colder, 43 Penn. State, 244. Perry on Trusts, Secs. 727, 734. Feizel v. Trustees, 9 Kan. 592.

Frank T. Ransom and John C. Watson, for appellees, cited: Lucas v. Case, 9 Bush., 297. People v. German Church, 53 N.Y. 103. German Reformed Church v. Seibert, 3 Penn. State, 282. Den v. Bolton, 12 N.J.L. 206. Burrel v. Church, 44 Barb., 282. Miller v. English, 2 Halst. Ch., 304.

OPINION

MAXWELL, CH. J.

The plaintiffs allege in their petition "that they are residents of Nebraska City in Otoe county, state of Nebraska; that on the 20th day of January, 1867, at said Nebraska City, the said First Evangelical Lutheran church in Nebraska City, Nebraska, was duly organized under the laws and regulations of the general synod of the Evangelical Lutheran church of the United States, and was then duly incorporated under the general incorporation law of the then territory, now state, of Nebraska, by the election of a board of trustees, consisting of Eli Huber, Charles C. Walbaum, F. Templin, H. H. Petring, A. F. Mollring, Frederick W. Rottmann, and John Stromer, and adopted a constitution in accordance with the rules and regulations of the general synod; that under said constitution two of said trustees are called deacons, and two of them are called elders, and two of them are called trustees, and that said officers, together with the pastor, constitute the council of said congregation, and have charge of its affairs, and control and custody of its property, and hold all the same in trust for said congregation, subject to and in accordance with the rules and regulations of said general synod; that shortly after said organization, the said congregation purchased lots one and two in block eight, as designated on the recorded plat of South Nebraska City, now a part of Nebraska City, in Otoe county, Nebraska, and during said year of 1867 erected thereon a commodious building for public worship to be therein held according to the doctrines, beliefs, and discipline of the said Evangelical Lutheran church, and for such other purposes as said congregation might properly see fit to use said building in connection with ordinary church work of said Evangelical Lutheran Society.

"That said property was so purchased, and said church edifice so erected thereon by members of said Evangelical Lutheran church at that time, and with the further aid of certain funds furnished by the 'Church Extension Society' of the Evangelical Lutheran church of the 'General Synod of the United States,' the same being an organization of the said Evangelical Lutheran church for the purpose of aiding in the erection of church edifices in the United States for the use and benefit of congregations and organizations of said particular sect or denomination, and that the same has been so used until about the happening of the events hereinafter mentioned.

"That 'Die Erste Evangelische Zion's Gemeinde,' to-wit: The First German Evangelical Zion's congregation, is a religious organization, different and distinct from the Evangelical Lutheran church aforesaid, is not in affiliation with the general synod of said Lutheran church, nor with those who purchased said property and contributed to the price thereof, and to the erection of said church edifice, nor with the said Church Extension Society, which aided in said purchase and erection, and is not subject to the said general synod, or in any way controlled thereby; that on or about the 18th of December, 1884, the above named defendants, combining and confederating with other persons to these plaintiffs unknown, but whose names, when discovered, plaintiffs ask may be added hereto as defendants, with apt and suitable words to charge them herein, did wrongfully and fraudulently, and in violation of the rights of these plaintiffs, and other members of said Evangelical Lutheran church, undertake to unite said Evangelical Lutheran church with said First German Evangelical Zion's congregation, and to take possession of said property, and to transfer the same to the possession and control of said Zion's congregation, and did at said meeting agree among themselves to change said organization to and to become a part of said Zion's congregation, and to deprive these plaintiffs and the said Evangelical Lutheran church in Nebraska City, Nebraska, of said property, and of all right, title, and interest therein, and to prevent them from worshiping therein, or otherwise using said property as and for the use of the said Evangelical Lutheran church; that on the evening of the 13th of February, 1885, at about 8 o'clock P. M. of said day, after these plaintiffs and certain other members of said Lutheran church had quietly and peaceably entered said church edifice, and were engaged in religious services, and also in holding a business meeting, and before said religious services were concluded, under the direction and temporary charge of Rev. Joseph W. Kimmel, a regularly ordained minister of the said Evangelical Lutheran church, the said Rev. J. W. Kimmel having been in writing duly instructed and authorized by the president of the Nebraska Synod of said Evangelical Lutheran church to look after the interests of said church and its property in said Nebraska City, the said defendants and their said confederates did enter said church building violently, tumultuously, and, as these plaintiffs verily believe, some of them armed, and did interrupt said meeting, and did with violence eject him, the said Rev. J. W. Kimmel, from the room, and did then and there by their violent and outrageous conduct, and by blowing out the lights with and by which said church was then lighted, stop and end said meeting, and did refuse to allow, and did actually prevent, said business meeting or said religious services from being completed, although the said Rev. J. W. Kimmel read aloud his said written authority; that said defendants and their said confederates seized the possession of said property, and still retain the same; that said defendants and their said confederates have seized the custody and control of all the records and books of said Evangelical Lutheran church, and the keys to the said church edifice, and still retain the same, and refuse to give them up to the regular officers of said church, who are the only proper and legal custodians thereof, and they threaten to retain possession of all said property, and to prevent the said Evangelical Lutheran church from holding divine services in said building tomorrow, the 15th of February, 1885, and at all times thereafter, and claim to hold said property for the use and benefit of the said Zion's congregation, and refuse to allow these plaintiffs and the said Evangelical Lutheran church any possession of or control in any of said church property, and to prevent them from ever hereafter holding services or public worship as such Evangelical Lutheran church therein; that the mode of worship and the religious belief, in accordance with the tenets of the said Zion's church, is not the mode of worship, nor the religious belief, nor the discipline which these plaintiffs, nor the said Evangelical Lutheran church for which they are trustees, profess nor prefer and desire, nor the one for which said property was purchased and said church edifice erected, and that they have no other place of worship in said Nebraska City, nor is there any other place in said Nebraska City solemnly dedicated to public worship as these plaintiffs and said church believe that said edifice should be dedicated, nor is there another regularly ordained minister of said church now here to conduct divine worship except the said Rev. J. W. Kimmel, so far as these plaintiffs know, and that their rights in the premises demand prompt and immediate protection. Plaintiffs ask that said defendants, and all persons acting by, through, under, or in connection with them in any way, may be restrained forever from keeping these plaintiffs and the said Evangelical Lutheran church out of the possession of said property, or of the key or keys whereby access may be obtained thereto, and of the records, books, papers, and documents of said Lutheran church, and from any longer retaining any of the property of any description which they have taken from the said organization known as the First Evangelical Lutheran church in Nebraska City, Nebraska, and from any interference with or interrupting the meetings or the worship of said church, or setting up any claim or claims as such 'Zion's congregation' to the property of said 'Lutheran church,' or from preventing these plaintiffs and the said Lutheran church from having, holding, and enjoying the sole and uninterrupted use and possession of said property, and all that pertains thereto, and for such further and other relief in the premises as shall seem agreeable to equity and good conscience."

In their answer, the defendants admit "that on the 20th day of January, 1867, the First Evangelical Lutheran church in Nebraska City, Nebraska, was duly organized, as in the petition stated, and admit the election of the persons therein named as a board of trustees, and that a constitution was adopted, as in the petition alleged, and that under said constitution two of said trustees are called deacons, and two are called...