201 Mass. 534 | Mass. | 1909
If primarily the controversy was confined to the form of divine worship to be used by the congregation, the progress of the dissension has developed other differences which the parties also seek to litigate in the present suit. The bill as. amended asks for restoration to membership of an expelled member, and that some of the defendants who have usurped certain corporate offices may be restrained from interfering with its property, joined with demands by the corporation for an accounting by the defendant ISTesson of his receipts and expenditures as mortgagee and president, and that the form of worship preferred by the individual plaintiffs may be established and confirmed.
It is apparent that under the most liberal rules of procedure there is a misjoinder of legally distinct and equitably inconsistent demands. Bliss v. Parks, 175 Mass. 539, 543. The remedy to test the validity of the expulsion of the plaintiff Finberg and the title of the usurping officers was by mandamus. Luce v. Board of Examiners, 153 Mass. 108. Keough v. Aldermen of Holyoke, 156 Mass. 403. If to render a bill multifarious the matters stated must not only be separate, but each of itself of such a character as to entitle the plaintiff to relief, the refusal of ISTesson to render an account to the corporation joins a cause for relief wholly independent of that of the remaining individual plaintiffs, even if upon being requested by them he would have declined to bring proceedings in the name of the corporation, and this objection should be taken by demurrer. Dimmock v. Bixby, 20 Pick. 368, 377. MeCabe v. Bellows, 1 Allen, 269. Davis v. Peabody, 170 Mass. 397, 399, 400, and cases cited. 1 Danl. Ch. Pl. & Pr. (6th Am. ed.) 346. So if the bill in substance fails to state a case for equitable relief the proper course
A special demurrer having been interposed raising the objections discussed, an order was entered by consent, overruling the demurrer “ without prejudice to raising the same questions of law at the time of the hearing on the merits.” The case was then referred to a master before whom not only were all the allegations of the bill tried at great length, but the demurrer was argued and submitted for his decision. The practice adopted resulted in the trial of issues by a master which should have been heard and eliminated by the court, and subjected the parties to the expense of litigating on the merits disputes not within the jurisdiction of a court of equity. The master, however, having decided the grounds of demurrer adversely to the defendants, they again raised the same questions by exceptions to his report. In this state of the record, the final decree, while sustaining these exceptions, properly treated the demurrer as having ceased to perform its functions. Crocker v. Dillon, 133 Mass. 91. Driscoll v. Smith, 184 Mass. 221, 222. United Shoe Machinery Co. v. Holt, 185 Mass. 97, 102. Vaughan v. Bridgham, 193 Mass. 392, 397. 1 Danl. Ch. Pl. & Pr. (6th Am. ed.) 346. It is not important to consider them further, but for reasons previously stated the exception of the plaintiffs was properly overruled, while the defendants’ fifth, sixth, eighth, ninth, tenth and twelfth exceptions were rightly sustained, and, as they did not appeal, there is no occasion to consider their remaining exceptions, which were overruled.
If these extraneous matters are thus disposed of, there remains for decision the principal ground of complaint, which is confined to the individual plaintiffs who continued members of the society. The grievance consists in the particular form of religious ceremony to be followed. The master finds that there are two forms or rituals in which the services could be conducted. At first the ritual favored by the plaintiffs was used, but later as the membership increased a different form was proposed by one section of the congregation. The agitation which followed led to antagonisms and disturbances at the meetings, in which each
It may be assumed that the society was chartered under It. L. c. 125, and by It. L. c. 36, § 5, was empowered to enact a by-law which would prescribe a ritual or form of worship, and also to provide that the by-law could be changed or amended. The purpose of the corporation was “ the establishment of a Synagogue for the Public Worship of God in accordance with the principles and doctrines of the Hebraic Religion, and for such other charitable, benevolent and religious objects as the corporation may from time to time deem advisable.” Under the statutes and the certificate of incorporation the management of corporate affairs was to be conducted reasonably by the members; and the control of its business, including its form of worship and the ritual to be adopted, would ordinarily be determined by a vote of the majority. The by-law assumed to put it out of the power
This part of the by-law being ineffectual to limit the right of the majority, it was in their power in a proper way to change the form of worship, and this was done by a vote at a regular meeting. A special meeting was subsequently held “ to finally pass upon this matter.” At this meeting, action was takfen in affirmance of the form of vote, which was a full, deliberate expression of the purpose of nearly all the members upon an essential requirement of their religious services. The will of the majority having been lawfully expressed, the bill cannot be maintained for injunctive relief.
In his memorandum of decision the trial judge states that the parties consented to a decree in favor of the corporation against the defendant Nesson for a discharge of the mortgage, upon payment of the amount found due to him with interest. If the corporation should have proceeded separately for an accounting, yet, the merits having been fully tried, there is no objection to relief being decreed in order to avoid further litigation.
We find no error in the decree of the Superior Court, which should be affirmed.
Lecree affirmed.