Opinion
19743.
ARGUED JUNE 10, 1957.
DECIDED JULY 3, 1957.
Petition for injunction. Before Judge Stephens. Laurens Superior Court. April 19, 1957.
Wm. Malcolm Towson, R. M. Daley, for plaintiffs in error.
E. L. Stephens, Jr., Beverly B. Hayes, contra.
1. The petition did not state a cause of action for the recovery of damages.
2. The allegation of membership in the alleged church shows sufficient interest in the petitioners to support the prayers for equitable relief.
ARGUED JUNE 10, 1957 — DECIDED JULY 3, 1957.
The petition of Reuben B. Butler, "as a Deacon of New Hope Baptist Church," and C. H. Burch, J. F. Butler, and C. O. Gay, as members of the church, alleged in substance:
The New Hope Baptist Church and cemetery were founded about the year 1863, and are located on described lands. The defendants, Alva Heath and S. G. Burch, are in the act of dismantling the church building and hauling the lumber away from the property, without the authority and consent of the deacons or any of the members of the church. The defendants are not members of the church and they have no authority to act in any capacity for the church or its congregation. The dismantling of the building and the removal of the timbers and lumber have damaged your petitioners and the church house in the sum of $2,000. Located on the property is pine timber of the value of $2,000, and if the defendants are allowed to take charge of the premises, they will remove the timber and further injure the petitioners and the church. To dismantle and remove the church building would result in a desecration of the cemetery located on the property. The defendants have no authority to take possession of the premises, and their acts will result in irreparable damage and injury to the petitioners and other members of the church. The petitioners have no adequate remedy at law.
The prayers were: for process; that the petitioners recover damages of the defendants in the sum of $2,000; that the defendants be restrained from dismantling the church, or cutting any of the timber; and for other relief.
The defendants' demurrers to the petition were overruled, and the exception is to that judgment.
1. In the present case the allegations and prayers seeking a recovery of damages failed to show any right in the petitioners to recover. If the New Hope Baptist Church is an incorporated church or religious society within the provisions of Chapter 22-4 of the Code, an action for the recovery of damages to the church property should be brought in the corporate name of the society. Jones v. Watson, 63 Ga. 679. A religious society that is not incorporated can not sue or be sued as such. Mutual Life Ins. Co. of N. Y. v. Inman Park Presbyterian Church, 111 Ga. 677 ( 36 S.E. 880); Kelsey v. Jackson, 123 Ga. 113 ( 50 S.E. 951). The members suing do not allege that they constitute a majority of the church membership, and do not show any authority to represent the church as such. A minority of a church membership can not act for the church. Code § 22-406; Walker v. Ful-Kalb, Inc., 181 Ga. 563, 572 ( 183 S.E. 776). The petition therefore failed to state a cause of action for the recovery of damages.
2. Injunction may not be substituted for a complaint for land. It is an appropriate remedy, however, to prevent an alleged trespasser in the wrongful possession of a building erected for church purposes from diverting it to private use. The interest of the petitioners as members of the alleged church is sufficient to support the prayers for injunctive relief. Harris v. Bandy, 182 Ga. 844 ( 187 S.E. 99); New Mission Baptist Church v. City of Atlanta, 200 Ga. 518, 526 (5) ( 37 S.E.2d 377); Dowdell v. Cherry, 209 Ga. 849 ( 76 S.E.2d 499). The petition having stated a cause of action for some of the relief sought, it was not error to overrule the demurrers.
Judgment affirmed. All the Justices concur.