Vonhoven v. Immanuel Presbyterian Church of New Orleans

• Decision Date: 01 January 1901
• Docket Number: 13,997
• Court: Louisiana Supreme Court
• Parties: FRED VONHOVEN ET ALS. v. IMMANUEL PRESBYTERIAN CHURCH OF NEW ORLEANS

32 So. 389

108 La. 274

FRED VONHOVEN ET ALS. v. IMMANUEL PRESBYTERIAN CHURCH OF NEW ORLEANS

No. 13,997

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- Sommerville, J.

Omer Villere and Edwin T. Merrick, for Plaintiffs, Appellants.

Benjamin Rice Forman, for Defendant, Appellee.

OPINION

BREAUX J.

This suit was brought by plaintiffs who allege that they are members of the Immanuel Presbyterian Church and claim that the funds bequeathed by the late Casper Auch to that church are misapplied and that his will is not executed in accordance with his last will and testament.

Defendants appeared and excepted to the suit on the ground that plaintiffs not being members of the church, they have no right of action. The court sustained the exception.

There was evidence heard on the trial of the exception to sustain the averment that plaintiffs and their minor children are not members of the church, and that, in consequence, they have no interest in the fund before mentioned and can have no concern in its distribution. During the trial of the issues which came up on exception, testimony was also admitted regarding the management of this fund by the defendant corporation and the question of the distribution also came up on the face of the petition, met as it was by an exception which gives rise to admission, to some extent at least, of facts charged regarding the misapplication of this fund.

The funds were donated by Caspar Auch to the several incorporated religious associations of the City of New Orleans in which religion is taught according to the form of the Government and Book of Discipline of the Presbyterian Church.

The first question which presents itself for our decision is whether plaintiffs have sufficient interest to maintain their suit.

A majority of their number have been recognized as members and were accorded all the rights and privileges of members. The children of some of them were baptized in the church and became its members. We are informed by the record that only communicants received by the Session into the communion of the church in good standing and contributing to its support constitute the electors, and that failure to contribute for six months or more debars a member from the right to vote at any election until all arrears are paid.

It further appears that all children born within the pale of the visible church are members and are to be baptized; they are under the care of the church and subject to its government and discipline and when they arrive at years of discretion they are to exercise the duties of members. We understand that this embraces children born within the pale of the visible church of parents who are communicants regularly received by the Session.

Before the contention among the members of this church arose, the membership of plaintiffs, except one, was not questioned. He was expelled irregularly, as we understand, and was afterward restored to membership.

It is evident that plaintiffs, or at least several of them, were not prompt to contribute and were perhaps debarred from the right to vote under the act of incorporation to which we have referred. They, none the less, did not thereby lose their membership and were entitled to be restored upon paying their indebtedness to the church, and can be heard in this case in behalf of the poor of the church.

Our learned brother of the District Court evidently bestowed close attention on this case. He heard the witnesses and had good opportunity to form an opinion regarding the weight of the testimony. In his carefully prepared opinion he says, that defendant had concluded itself from questioning the membership of plaintiffs, that "the testimony of witnesses, which sets forth that there is a rule of Presbytery which directs that when a member has not been heard from for three years that his name goes to the retired list and that he is no longer a member of the church" seems somewhat too broadly stated.

We infer that defendant has acted upon this rule and that in accordance with the view of its officers, the plaintiffs, in its view, are no longer members although no regular trial has been had.

We are not informed that the rule for the government of the Sessions of the church enables its members, summarily, to dismiss a member without a hearing or trial, and until proof is offered and admitted of such a rule, we are warranted in the conclusion that ex parte proceedings to get rid of delinquent or erring members are void....