McDaniel v. Quakenbush , 249 N.C. 31 ( 1958 )

105 S.E.2d 94 (1958) 249 N.C. 31

F. A. McDANIEL, Jr.,
v.
Reverend Aubrey T. QUAKENBUSH and Fred Weaver et al., Trustees, and Yates Harbison et al., Deacon Board of the First Baptist Church of Kings Mountain, North Carolina.

No. 161.

Supreme Court of North Carolina.

October 8, 1958.

Mullen, Holland & Cooke, Gastonia, for defendants-appellants.

Davis & White, Kings Mountain, Kennedy, Mahoney & Mull, Horn & West, Shelby, for plaintiffs-appellees.

DENNY, Justice.

The appellants assign as error the overruling of their demurrer and the continuance of the restraining order until the final hearing.

A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action should be overruled if the complaint, when liberally construed in favor of the pleader, alleges facts sufficient to constitute a cause of action. Or, to put it another way, if any portion of a complaint alleges facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be reasonably and fairly gathered from it, the pleading will survive a demurrer. Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547, and cited cases. See also Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Workman v. Workman, 242 N.C. 726, 89 S.E.2d 390; Batchelor v. Mitchell, 238 N.C. 351, 78 S.E.2d 240.

A demurrer admits the truth of all allegations of fact contained in the complaint and inferences of fact reasonably drawn therefrom. Wiscassett Mills Co. v. Shaw, 233 N.C. 71, 62 S.E.2d 487; Read v. Young Roofing Co., 234 N.C. 273, 66 S.E.2d 821; Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270; Belch v. Perry, 240 N.C. 764, 84 S.E.2d 186.

We are not dealing with the merits of this controversy but only with the allegations of the complaint. Star Furniture Co. v. Carolina & N. W. R. R. Co., 195 N.C. 636, 143 S.E. 242. However, whether the meeting on 23 October 1957 was properly or improperly called, if the plaintiff can show upon the final hearing that the result of the election complained of was brought about by undue influence, coercive, or fraudulent means, as alleged, the election should be set aside.

The restraining order as we interpret it, restrains the defendants from selling and transferring any of the real estate belonging to the First Baptist Church of Kings Mountain, North Carolina, and also forbids them from disposing, transferring, or expending any portion of the building fund of the church in connection with the relocation of the church, until the final hearing on this cause, unless otherwise ordered by the court.

We do not interpret the order complained of to restrain the church, in any manner, from holding an election bearing on the question of the removal of the church, or any other question that may properly come before it, save and except in the respects enumerated hereinabove. The church is free to approve or to rescind the action taken on 23 October 1957, if it desires to do so.

Since it appears from the record that this church has no written constitution or bylaws, the manner of calling meetings for the purpose of ascertaining the will of the members of the church should be governed by the customs and practices of the church as they have been observed and practiced through the years relating to such matters. A majority of such membership, ordinarily, controls the right to the use and title to church property. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114; Dix v. Pruitt, 194 N.C. 64, 138 S.E. 412. There is no doctrinal departure involved in this action as in Reid v. Johnston, supra.

The rulings of the court below, overruling the demurrer and continuing the restraining order until the final hearing, will be upheld.

Affirmed.

PARKER, J., not sitting.