Lutheran Evangelical Church v. Gristgau , 34 Wis. 328 ( 1874 )

Dixon, 0. J-

The only question argued in this case in support of the judgment appealed from, is as to whether the complaint states facts sufficient to constitute a cause of action in equity and for an injunction; and to that question the inquiries of the court will be limited. It is insisted, as the complaint shows the defendants to be mere wrong-doers, that it is but the ordinary case of an application to restrain trespassers against whom there exists an adequate remedy by action at 'law, and so equity is without jurisdiction. The points of dissimilarity between the facts set up in this complaint, so far as any question of the jurisdiction of equity or any of law-arises upon them, and those stated in the complaint in The Trustees, etc., v. Hoessli, 13 Wis., 348, are so few and so slight as to leave little or no room for distinguishing the cases, or for saying that this case is not strictly ruled by that one. The only difference of averment in the respective complaints is, that while there it was alleged that the trespassing defendants had often interfered with the property held by the plaintiff in trust, and then threatened to take into their custody all the temporalities of the religious society plaintiff, and to transact all affairs relative thereto, the allegations here are that the defendants have secretly and fraudulently obtained possession of the church edifice, put new locks and keys on the doors thereof, and, refusing to readmit the plaintiff .by its regularly elected and qualified trastees and officers and by its members, have kept and maintained forcible possession of tbe same ; that they have secretly possessed themselves of a portion of the church and society records, and keep the plaintiff, its trustees, officers and members, from' access thereto or possession thereof; and that they threaten to take or to gain unlawful possession of the remaining records, and of all the temporalities of the plaintiff, including the parsonage house or building owned by the plaintiff and occupied by the pastor of the society as a place of residence. Such, in brief, are the trespasses and wrongs complained of, and for which redress is sought by injunction in this action. Aside from the fact that possession has been tor-tiously and surreptitiously gained of the church edifice, that is, such possession as a building of the kind is capable of, and also from the fact that the defendants have secretly possessed themselves of a portion of the society records, the facts now before the court differ in no material particular from those there presented.- It is true, the defendants here have answered, meeting the plaintiff’s claim of legal right with a claim of legal right on their part; but their counsel, in alluding to that as a circumstance of distinction, seems to forget the nature of the question which is presented. The question here is upon the sufficiency of the facts stated, in the complaint to constitute a cause of action, and is the very same as if coming up on demurrer interposed in writing, with this difference only, which makes against the defendants, that, the objection being taken for tbe first time at the trial, a more liberal rule of construction, prevails in support of the pleading than if it had been formally demurred to. Teetshorn v. Hull, 30 Wis., 162, 167. The objection is in the nature of a demurrer ore tenus (Rothe v. Rothe, 31 Wis., 570); and the defendants can take no more advantage of their answer than if it had not been put in. The case might have been brought to this court as well without the answer as with it.

It appears to this court, therefore, that the difference between this case and that of The Trustees, etc., v. Hoessli are not such as to justify the application of any different rule respecting the jurisdiction of equity, or to forbid or render unsuitable the remedy by injunction, either to stay the mischief or to restore the injured parties to their original condition. It appears to us that the same reasons, and all the reasons, which there existed for granting the relief in equity, exist also here. Upon the supposition, admitted to be correct for the purpose of the ob; jection now urged, that the defendants are mere tortfeasors, intruders upon the temporalities of the society plaintiff, and usurpers of its corporate name, franchises, functions and offices, the case presented seems to be one proper for the writ of injunction, not only as a preventive, but also as a restorative process or remedy. The power of equity to restrain by injunction, and to make restoration, in cases of this nature, was distinctly asserted by this court in a very early, and well considered decision. Putnam v. Sweet, 2 Pin. Wis. R., 302 (1 Chand., 286). The mandatory injunction, or that issued for the enforcement of rights after wrongs have already been comrhitted, seems peculiarly suited to the facts and circumstances of this case, since, except as to the portion of the records of which the defendants are charged with having secretly obtained possession, the court will not be required to direct or compel the doing of any posi-itive act. The granting of the injunction in the ordinary form will operate to restore to the plaintiff the church edifice and all that has thus far been lost by the wrongful acts complained of, except that portion of the society records which have been secretly taken, and which may be provided for by special order. When the defendants are restrained from farther unlawful interference, the plaintiff, through its trustees, officers and members, may, without other or further aid or order of the court, take and maintain lawful and peaceful possession of the church edifice; and mandatory inj unctions of this kind, or those operating thus to restore the injured party to rights which were lost or the enjoyment of which was suspended by wrongs previously committed, are not of unfrequent use and occurrence.

The true foundation of the powers of chancery, and the necessity for their exercise, are succinctly stated by Justice Sharswood in Roshi’s Appeal, 69 Pa. St., 462, 467, as follows : “ If a private partnership or a corporation falls into confusion affecting all its members, there is no adequate remedy at law — no better remedy than a proceeding in equity to settle the rights of the parties, and to stay by injunction the inconvenience and disturbance caused by opposite factions pretending to act as the society.” As in all good law, there is much sound philosophy and strong common sense in the above remarles, and especially when considered in their bearing upon these church controversies, which was the kind of case in 'which they were made. The learned judge then proceeds with a quotation of the language of Chief Justice Lowrie in the leading case of Kerr v. Trego, 47 Pa. St., 295, where the chief justice says : “ It is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in the last year. Therein we decide directly on the rights of the property, because that became the aim.” Of what use, we ask, would be the remedy by ejectment to obtain possession of the church edifice, wherein, if the sheriff turned the trespassing parties out on Saturday night, they would in all probability be found in again on Sunday morning ? Of what availability or adequacy such a remedy, unless the sheriff were to do what could not lawfully be done, execute the process on Sunday, and not on one Sunday alone, but stand at the church door with a posse comi-iatus on every Sunday until the spirit of opposition and strife died out or was exhausted, which would probably never be ? We all know and history teaches too plainly the nature, workings and tenacity of these religious schisms and separations, to give any hope or reasonable ground of expectation for the efficacy of such a remedy. A breach, once effected, is seldom or never closed, and unity never restored. The finer, more subtle and apparently unsubstantial the point of divergence respecting any matter of doctrine or question of faith, the greater the likelihood of continued diversity of opinion and of permanent division. The spirit of aggression and of resistance, of hostility and unyielding tenacity and opposition, and not unfrequently of most bitter hatred and open violence even, usually grows and gathers strength with the diminishing importance of the point in difference, until in most cases nothing, so far as temporal rights and temporal obligations are concerned, but the strong arm of the chancellor suffices for the protection of the one or the enforcement of the other. The noisy demonstrations, as shown by the affidavits in support of the motion for a temporary injunction in this court, made by these defendants at the church in exultation at their supposed victory over the plaintiff, and designed to aggravate and insult the trustees and parties engaged in the prosecution of this action, are but another among myriads of exhibitions of the same spirit which have taken place in the world. The courts, therefore, looking to the nature of these contests, the temporal spirit which they engender and the temporal wrongs and mischiefs which must ensue unless they are put down or held in check with the utmost promptitude and vigor, have at all times and with one accord asserted the prerogative of equity and maintained the power of the chancellor in the premises. One only intimation to the contrary, and that obiter, is found in the opinion of Chancellor Walworth in Baptist Church v. Witherell, 3 Paige, 296, the same having, however, been disregarded or overruled by the same learned judge in his elaborate historical opinion of church doctrines and creeds in Gable v. Miller, 10 Paige, 627. The only decision at all approximating to the opposite effect, which the industry and researches of the learned counsel for the defendants have been able to produce, is that in Lutheran Church v. Maschop, 2 Stockton Ch. R., 57, which was obviously correctly held on the facts. One man, against the entire membership of the society or church and its officers, trustees, deacons, elders, wardens, or by whatever name the officers may be called, can hardly be considered as forming a division or faction in the church ; and it needed not the remedy by injunction to keep the reverend defendant in that case out of the pulpit, should he have persisted in entering it against the will and wishes of the entire congregation and of everybody else. The application for an injunction in such a case savored too much of the ridiculous to merit serious treatment.

On the whole case, therefore, and on all the authorities which have been numerously cited by counsel, this court is of opinion that the complaint states a good cause of action in equity, and for the remedy by injunction; and this, whether the jurisdiction of the court is put on the ground above stated, or, as in some of the authorities, upon the ground of a trust, or of a suit to quiet title, or whether, as in others, it is held on the ground of the peculiar nature of the rights and of the property affected and for the time being put in jeopardy or rendered valueless by the trespasses complained of.

By the Court. — The judgment appealed from is reversed, and the cause remanded for further proceedings according to law.

The motion for a temporary injunction is denied, for the reason that the application can better be made to the circuit eourt, and without prejudice to such application.