Tilson v. Graham

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 510.
• Citation: 94 So. 295,208 Ala. 312
• Parties: TILSON v. GRAHAM ET AL.
• Court: Alabama Supreme Court

94 So. 295

208 Ala. 312

TILSON v. GRAHAM ET AL.

6 Div. 510.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action of forcible entry and unlawful detainer by Naomi Graham and others, as trustees, against S. C. Tilson. From a judgment for plaintiffs, defendant appeals. Affirmed.

Fred Fite, of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellees.

MILLER J.

This is a forcible entry and unlawful detainer suit for one acre of ground on which is situated a church building. It was commenced in a justice of the peace court by Mesdames Naomi Graham, Millie Minor, and Cora Wilson, "suing as trustees of Graham Chapel M. P. C.," against S. C Tilson. There was judgment in favor of the defendant in the justice of the peace court. The plaintiffs appealed therefrom to the circuit court, and judgment was there rendered on verdict of a jury in favor of the plaintiffs, from which the defendant appeals to this court.

The case was tried in both courts on the merits. The defendant pleaded in the circuit court to the complaint, not guilty and that the allegations therein are untrue.

After verdict under the issues on the merits was rendered by the jury in favor of the plaintiffs and judgment thereon was entered by the court, the defendant filed motion for new trial, and insisted for the first time that the general affirmative charge with hypothesis, requested in writing by him, which was refused by the court, should have been given because there was no such legal entity as "Graham Chapel M. P. C."; and that the verdict and judgment are void because there was no such legal entity as "Graham Chapel M. P. C.," and because there was no evidence that plaintiffs had ever been duly or properly appointed trustees of "Graham Chapel M. P. C." The motion for new trial was overruled by the trial court, and this ruling is assigned as error.

There was evidence that plaintiffs were duly elected by the members of the Methodist Protestant Church at Graham Chapel as its trustees in 1914, and they have been its trustees continuously since that time. Sections 1 and 3 of the constitution and discipline of this Methodist Protestant Church provide:

"Section 1. Trustees shall be elected annually by the qualified members of the church, except where charters otherwise provide. It shall be the duty of the trustees to hold the property in trust for the use and benefit of the church, and to fill any vacancies occasioned in the board by death, and resignation, or ceasing to be a member of the Methodist Protestant Church. And all trustees shall remain in office until their successors shall have been elected.

"Section 3. To take care of the church property of all kinds and the necessary funds to defray the expense incurred in repair and improvement shall be collected by the board of trustees after having such expenses and collection announced from the pulpit."

There was testimony, if believed by the jury, which would entitle the plaintiffs to recover; and this being the state of the evidence on the merits of the case, the general affirmative charge with hypothesis, requested by the defendant, was properly refused by the court. It should not be given when there is evidence showing a reasonable inference adverse to the right of recovery by the party requesting it. Bowen v. Hamilton, 197 Ala. 418, 73 So. 5; McMillan v. Aiken, 205 Ala. 35, h. n. 9-11, 88 So. 135.

The defendant insists this charge should have been given, and the motion for new trial granted, because affidavits were presented on the hearing of the motion for new trial showing there was no such corporation as "Graham Chapel M. P. C."; that the title to the lot was made by deed in August, 1901, to certain named persons as trustees of the Methodist Protestant Church at Graham Chapel; that plaintiffs were not the trustees named in the deed; and they had not been appointed trustees of the property under section 6093 et seq. of the Code of 1907.

In Ortez v. Jewett, 23 Ala. 662, the suit was brought in the name of a partnership and not in the names of the members of the firm; and the Christian names of the individuals composing the partnership were not mentioned in the complaint. The...