Summary
In Ballew v. Deal, supra, this court reversed the judgment on the ground that the petition failed to allege that the action complained of was not by a majority of the members of the church present.
Summary of this case from Ballew v. DealOpinion
17838.
SUBMITTED APRIL 14, 1952.
DECIDED MAY 12, 1952.
Petition for injunction. Before Judge Paschall. Gordon Superior Court. February 8, 1952.
Malcolm C. Tarver, for plaintiffs in error.
J. A. Gregory, Y. A. Henderson and J. B. Langford, contra.
Where four persons, alleging themselves to be members of a Missionary Baptist church, brought an action to enjoin a pastor and four deacons of the church from interfering with the petitioners' use of the church property, alleging that the petitioners were illegally excluded from the church membership because they disagreed with the defendants on the practice of foot washing, and where the petition as amended sought to have the purported acts of the defendants decreed to be void and that the petitioners' right as members be restored, but failed to allege that the action complained of was not taken by a majority of the members present, such petition as amended did not state a cause of action, and the trial court erred in overruling a general demurrer thereto. Stewart v. Jarriel, 206 Ga. 855 ( 59 S.E.2d 368), and cases cited; Sapp v. Callaway, 208 Ga. 805 ( 69 S.E.2d 734).
Judgment reversed. All the Justices concur.
No. 17838. SUBMITTED APRIL 14, 1952 — DECIDED MAY 12, 1952.
C. C. Deal and three other persons, as members of Hopewell Missionary Baptist Church, and on behalf of all other persons similarly situated who may desire to join as party plaintiffs, filed in Gordon Superior Court, against Edward Ballew and four other persons, a petition which as amended alleged substantially the following: Hopewell Missionary Baptist Church was organized 70 years ago as an ecclesiastical organization, and has since been operated under a congregational form of government, is independent in nature, and is not a subordinate part of any religious organization and no appeal can be taken to any such tribunal. At all times the church has been operated under a set of Rules of Decorum including Rule 12, to wit: "All questions before the church shall be decided by a majority of the members present unless in case of fellowship which shall be unanimous." During May and June, 1951, the defendants conspired to expel the petitioners by rough-shodding and violating the mandatory terms of Rule 12. The defendants would, without the customary appointment of a committee of investigation and without prior notice to petitioners and other members who disagreed with the defendants on the practice of foot washing, cause to be procured and summarily preferred against the petitioners and other members charges of purported violations of church rules, at regular conferences of the church at which the defendant Ballew would so arbitrarily manipulate and rule on protests by the petitioners and other members and the votings as to make it appear to result in the ousting of the petitioners and other members. There existed between the petitioners and the defendants personal differences of opinion concerning religious and church practices; and on or about October 6, 1951, and December 1, 1951, at regular conferences defendant Ballew acting as pastor and the other defendants acting as deacons, the defendants being in charge of the conference, in furtherance of the scheme did so manipulate the conferences in violation of Rule 12, against the protestations of the petitioners and other members, as to purportedly result in the ousting of 22 named persons, including the petitioners. On September 30, 1951, October 6, 1951, and on divers other dates, in furtherance of the scheme the defendants threatened the petitioners and any other members who disagreed with them with physical expulsion from the church building. Under the rules of church government, except as reserved in the vote of the congregation as set out in Rule 12, the petitioners have no right of appeal or redress and they can only resort to a court of equity to set up their rights in the matter. By the acts of the defendants the church discipline and government have been entirely changed, thereby diverting church property from the purpose and trust to which it was acquired and devoted for a period of over 70 years; and the petitioners are being deprived of their property rights as members, to use and enjoy the church for purposes of worship. The petitioners have no adequate remedy at law, and a court of equity should decree that the purported acts of dismission and expulsion of the petitioners were void, or order another conference to be held in accordance with the church rules that were in effect as of October 6, 1951, for the purpose of determining the question of ouster of the petitioners as members of the church. During the years 1946-1948 a new church building was erected at a cost of approximately $2300, which sum was raised by contributions from members and outsiders and general collections, of which sum approximately $849 was paid by the petitioners and other purported ousted members as compared with $154 paid by the defendants and other active members who participated in the votings on the purported ousting of the petitioners. For over 50 years the church and its property have been dedicated, used, and operated under principles, faith, and practice which do not include foot washing. For many years the church has been associated with and has dispatched delegates to the annual conventions of the Gordon County Baptist Association, which is composed of Baptist churches of Gordon County, and said association's abstract of principles does not include foot washing. There exist certain so-called Missionary Baptist churches which dedicate themselves and operate under the principle, faith, and practice that foot washing is included as an example, and said churches associate themselves in Gordon and surrounding counties in the Coosawatee Baptist Association. Recently the defendants as pastor and deacons participated in the practice of foot washing and permitted the church to become associated with the Coosawatee Baptist Association, contrary to the foregoing trust. By the action of the defendants they have departed from the doctrines represented and practiced by the church for over 50 years, thereby withdrawing from the original body of the church, and have diverted the church property from the trust to which it has been devoted and from the purpose to which the petitioners and the other purported ousted members contributed their funds and work in and on the church building. The petitioners prayed: That process issue; that the court decree to be void the purported acts of the defendants, and that the petitioners' rights as members be restored; that the defendants be enjoined, first, from interfering with the petitioners' rights and enjoyment as members of their full use of the church building and premises, second, from committing personal violence and physical injury upon the petitioners and from in any way molesting them in their reasonable use and enjoyment of the church building and premises, third, from using the name Hopewell Baptist Church; that it be decreed that defendants have abandoned the tenets and principles of faith of the church and the trust to which it has been dedicated for over 50 years, and that they be enjoined from diverting the church building and property from said trust and purpose.
J. V. Thomasson and 14 other persons, as members in good standing, filed an intervention in which they adopted the allegations of the petition. The intervenors prayed, among other things, that Mrs. Johnnie Waters, as treasurer, be made a party defendant. The intervention was allowed and Mrs. Waters was made a party defendant.
The defendants demurred to the petition as amended and to the intervention on general and special grounds. To a judgment overruling the demurrers on every ground, the defendants excepted.