51 Cal. 155 | Cal. | 1875
1. The provisions of the act concerning corporations, of April 22, 1850 (Acts 1850, p. 373),- govern the election of the trustees of this church. The trustees are, therefore, to be elected, not generally, but in accordance with the rules, regulations or discipline of the church. The church, however, seems to have had no rule, regulation, or discipline governing the election of its trustees, unless the usage and custom heretofore prevailing in that respect may be said to amount to a rule within the intent of the statute. But if this usage and custom be considered as amounting to a rule governing elections held by the church, it will not aid the claim of Seth and his associates as trustees de jure, because it is affirmatively shown that it had been the custom of the church to elect trustees on the evening of the fourth day of April in each year, and after notice previously given by the pastor from the pulpit on the next preceding Sunday.
The election, under which Seth and his associates claim, was not held at the customary time, nor was it preceded by
2. The question upon which the case turns, therefore, is whether the defendant Hillery and his associates were de facto trustees of the “First African Methodist Episcopal Zion Church of San Francisco” on the 9th day of April last. If they were, then Seth and his associates were mere intermeddlers with the temporalities of the church, were rightfully ejected, and their removal did not amount to an ouster of the corporation plaintiff. It appears from the findings (which are not challenged) that, up to the 5th day of April, Hillery and his associates were, and for one year next before that day had been, trustees de facto of the plaintiff, and as such trustees, in control of the property of the church; and that, on the said 5th day of April, Seth and his associates, claiming to have been elected trustees, effected an entrance by violence into the church building, from which they were, however, afterwards ejected in turn by the defendant Hillery and his associates. The entry effected in this manner by Seth and his party, and a notification of dismissal served by them at the same time on the pastor of the church, are the only acts done which are claimed to have constituted them trustees de facto. We think these acts are not in themselves sufficient for that purpose.
Judgment affirmed.
