*1 said im- point out what we We rule discussed. To
plies approval of the to do contrary, province it were our if so, it. might well refuse to follow We we Lindsey may only repeat what was said Hunt, Sky Rides of v. and Cordell v. America, exclusively a supra, that this is legislature. for the attention of the
Affirmed.
DYER, J., and and Mc- CHATTIN CANLESS, JJ„ concur.
CRESON, J., concurs result. By Through Phil STATE of CANALE, Jr., Attorney Gen- District on rela- 15th Judicial Circuit eral Plaintiffs, Woody HALL, al., tion of E. et MINIMUM SALARY DEPARTMENT OF the AFRICAN METHODIST EPISCOPAL CHURCH, Corporation, INC., a Tennessee al., et Defendants.
Supreme Tennessee.
Feb. *2 12
Hanover, Walsh, Jalenak, Barnes & Ratner, Sugarmori Memphis, & for Lucas, endants-app def ellants.
OPINION
HUMPHREYS, Justice. majority
The of of the Court is opinion incorporates the motion to dismiss grounds equivalent to and so a demurrer should be on treated as before this Court discretionary appeal. dis The motion to miss is made on the 12.02: basis of Rule (1) that the courts lack of matter; complaint fails to upon state a claim relief which granted; join and the complaint fails indispensable an party.1 grounds These equivalent for motion to dismiss are a demurrer and be treated as such should purposes for un discretionary appeal 2 der T.C.A long of this It has been the rule pleas the effect given Court that shall be content, regard required by their without given pleader. to the name them 552, 64 Murphy 107 Moyers, 69 (1901); 894 Arnold v. S.W. Hill, (1878); 5 Tenn. Tenn. 308 Dreher v. Bank v. App. (1927); 10 Union Commerce Haiman, Tenn.App. see (1927). 669 We ap why this not be no reason rule should plied case, in implementation in this by this adopted Rules of Civil Procedure approved legislature. motion ground The first had is that court reasons. variety for a subject matter jurisdic want of will lie for A demurrer History aof the court. Caruthers’ tion in Gen., opin Eugene Gaerig, Atty. Ed., Lawsuit, Asst. are Dist. 202. We 8th Montedonico, mo Heiskell, Davis, ground & Canale ion however Glankler, Gerber, Gerber, good. Marshall & Rule- basis of is not The tion man, Memphis, relators-appellees. is that the Discretionary 1. The dissent contains a full statement 2. “27-305. before case, pleadings issues, or circuit chancellor of the having decision.—The and the final judge may, discretion, proposed been in his first written . . . causes ... Court. overruling . .” a demurrer . . to dis- overruling Chancellor the motion African Methodist However, observa- there are some public, Tennessee miss. Inc. charitable necessary this time contrary tions it is make at corporation. assumption This respect granting of discretion- allegations complaint, which ary a motion appeals on the must be taken as true on a motion to dis- equivalent grounds miss on to a demurrer. dismiss. *3 Taking allegation complaint, this of the not con Court will Hereafter this together allegations of of diversion appeal from action any sider discretionary funds, quo of we have a warranto case the chan dismiss unless a motion to jurisdiction.
which the has Court particular grounds designated cellor has the regards as amount part complaint of motion he
The second this of the which is, discretionary ing demurrer, subject of a the of the and grounds. requisite appeal particular possess that relators not the limited to these do par ground discretionary appeal interest to This A without this maintain the suit. of of good. T.C.A., part grounds is a of the not ticularization § dismiss, predicated on the quo provides the that an statute, warranto such dismiss, anyone dismissed. gives security who the costs of motion to will be entire the 'proceedings can abe relator. granting of discre the free Since unnecessarily delays final ground tionary appeals
Another of motion is the cases, indispensable party, parent an should disposition appeals lack of the of such church, Episcopal the be in rare instance where only African Methodist allowed Church, Inc., corporation. grave as to the Pennsylvania a doubt chancellor ground good. ruling This of the motion his on the demurrer. correctness of Salary Department discouragement The of the such of This attitude of Inc., disposi appeals African Methodist will into this Court’s enter separate corporation, a Tennessee char tion thereof.3 in public tered Tennessee as cor a welfare order The chancellor poration, purposes, and as for charitable with re- is affirmed motion to dismiss only necessary such is the quo to a party to a amounting de- spect grounds to all proceeding warranto in all of the which to the murrer, remanded and the case is allegations of misfea malfeasance and proceedings. court for further lower against corporate sance are officers of corporation. Tennessee McCANLESS, DYER, J., and J., join indispensable Justice,
Failure to Special concur. JENKINS, advantage be taken demur rer, Ed., CRESON, Chancery J., Suits in 5th dissents. Gibson’s ground. so we considered this § CRESON, (dissenting). Justice the Chan
We are that cery respect must dissent from jurisdiction of the all I Court has With in case. matter, Opinion this majority complaint states a claim specific nature and upon follows from granted, and that This which relief language of necessary parties all the court. restrictive character are before statute, itself. discretionary Accordingly, affirm the of the we action 12.02, practice re- preserve trial courts must is to Rule If this Court under appeals, allowing discretionary appeals, give such and so effect strain themselves ap- discretionary legislative that such this must insist that Court to the intent and per- requirements allowed, peals appeals because of conform opinion. a motion to dismiss missible breadth of Jamerson, Vernalure The E. L. quo instant case involves a warranto M. W. Patrick, Patterson, Black- Loyce and M. Chancery action in the D. instituted Salary of Minimum II, pursuant to the burn are directors Shelby County, Part board directors provisions seq. Ap- Department; that of T.C.A. 23-2801 et de- corporate a funds approved loan of pellants pursuant filed a motion to dismiss H. in violation Ralph fendant Rules Pro- Rule 12.02 of the of Civil Jackson the members that 48-814(2); T.C.A. The the mo- cedure. Chancellor overruled have conducted board of granted appeal to directors tion and of Minimum business this Court. corporation funds of the and administered The State of re- hereinafter di- fiduciary duty as their in violation of complainant, ferred commenced the ap- defendant directors rectors through instant action Phil two for- proved $400,000.00to and loaned Canale, Jr., *4 Attorney for District General any se- eign corporations and did not take Circuit, the Fifteenth E. on relation of amount; curity for the of this repayment Reddick, Woody Hall, and Samuel A. J. used funds that the have the directors against Davis. was W. This suit instituted Department pay their Salary Minimum to Afri- Salary Department Minimum the indebtedness;, the that personal and own Church, Incorpo- can Episcopal Methodist the funds individual defendants used rated, corporation, a the di- Tennessee and in corporate to ven- the defendant invest to- corporation, rectors the above named personal profit. Com- tures for their own H. Ralph Jackson, wit: E. M. prays required be plainant that defendants Patterson, Jamerson, W. L. Vernalure management of the to account for their Loyce Patrick, In and D. Blackburn. care; that a property to their entrusted corporation the its direc- and the charge of receiver be to take appointed tors bewill referred to as defendants. Salary Department affairs of Minimum relators, assets; im-
Complainant alleges E. that all that the and to marshal its Woody Hall, Reddick, property alienations of funds and proper A. and Samuel J. Davis, restrained; indi- the and the W. are ordained ministers of set aside that Church, Episcopal African In- be removed as directors Methodist vidual defendants Mini- corporated, nonprofit corpora- and that corporation; which is a of defendant as existing Salary be removed organized Department tion virtue and mum Pennsyl- Metho- the laws of of the of the African the Commonwealth of trustee funds vania; Church, Incorporated. Department Episcopal that Salary Minimum dist Episcopal the African Methodist to dismiss Defendants filed a motion Church, cor- Incorporated, is a Tennessee Civil pursuant to Rules of Rule 12.02 poration organized pursuant not profit separate Procedure. Defendants have five seq.; to T.C.A. et 48-1301 that § These grounds stated in their motion. its offices maintains has grounds are: that the trial court (1) Shelby principal and in place of business in- of the Tennessee; pursuant County, that to T. be- controversy; (2) that the court stant corporation C.A. 48-1309 the Tennessee § person over the low lacks a board or agency is subordinate defendant; African (3) that Episcopal African hav- Methodist Church Church, Incorporated, Methodist from ing purpose as its funds to receive not indispensable party which is an funds, those dis- invest and defendant; (4) joined been as a proceeds burse the of the investments complaint to state a claim that fails supplement salary of the ministers in that granted upon which relief the Church. brought to determine instant suit was church; a Complainant matters of alleges private in- ecclesiastical further that the pre- defendants, suit is quo warranto (5) dividual and Ralph Jackson, H. ap- grant an discretion to ade- the Chancellor’s and there effective since is mature limited peal parent under T.C.A. 27-305 remedy provided § quate in expressly those cases enumerated any grievances. church redress Indemnity v. Employers’ statute. Co. See The Chancellor determined 288, 151 S.W. Tenn. Willard overruled not well and was founded dismiss therein; cases cited Grant and discretionary a granted it. He defendants 563, 428 (1968) 221 S.W.2d Martin T.C.A. pursuant appeal to this Court provides 27-305. T.C.A. beyond apparent dispute It is follows: Assembly empowered General has not appeal deci- “Discretionary before final Judges or Circuit Chancellors judge sion.—The chancellor or circuit grant discretionary order appeal from an discretion, appeal may, in his pursu- overruling a motion made to dismiss deter- decree causes from his ant to Rule It is a function of 12.02. mining principles and order- involved Legislature to amend of this Court or partition ing an account or or a sale statute to allow a reference, before other character when a motion to Rule 12.02 dismiss under partition taken or the sale or account is overruled trial court. had; he is made or the reference appeal, I would dismiss cost de- at the overruling a allow such *5 murrrer; defendants. any may or he allow his appeal from a settles decree which dis-
right, although the may case posed others; as to or he
any party judgment from a rights
decree which settles although damages parties, the amount or compensation has not been deter-
mined.” KALTHOFF, INC. In the instant case deter- we need not mine whether or not was the Chancellor Inc., COMPANY, SOUTHSIDE LEASING et al.
correct the motion to dis- miss since we are confronted No. 160. question threshold this whether Court Appeals Court of to hear the Eastern Section. appeal. reviewing After thoroughly July 19, 1971. record, scope discretionary ap- our statute, peal decisions, we prior and our 3, Rehearing Sept. Denied 1971. hold that cannot of this Court Supreme be invoked case at bar and Denied Certiorari 3, Jan. 1972. Chancellor improvidently granted the dis- cretionary appeal. quo
In Tennessee a proceeding warranto a suit equitable which is in character. State ex rel. v. Ward However, mere S.W.2d particular fact that a is an action cause does not in and of itself allow discretionary appeal.
Court to entertain a The rule is well settled in Tennessee