Trustees of the German Evangelical Congregation of New Elm v. Hoessli

13 Wis. 348 | Wis. | 1861

%y gie (foug-t,

Cole, J.

We are of the opinion that the order overruling the demurrer to the complaint in this case, must be affirmed. Objections are taken to the complaint on several grounds. First, it is insisted that there is a defect of parties plaintiff, and that the state should be made a party. But we think this objection is clearly untenable. The action is brought by tbe trustees of a religious society, which was incorporated under the provisions of chap. 47, R. 1849, for the purpose of restraining the appellants from terfering with the rights, estate and temporalities of the church and society, and to prevent them from using the name of the corporation. Thus the gravamen of the complaint, or ground of action, appears to be a trespass upon the rights and property of a religious society. Now it is Very clear that in a controversy of this character, the state, as such, can have no direct interest. Assuming, as we must upon this demurrer, that the allegations of the complaint are true, still the state has no further interest in the matters in controversy than it would have in an ordinary trespass upon the property of a religious society. Again, it is objected that the plaintiff has no legal capacity to sue, because it appears from the complaint that the plaintiff is not a corporation ; and that it does not appear therefrom that the attorney general has refused to act. The first branch of this objection is certainly unfounded, since it is alleged in the complaint, with all necessary and reasonable certainty, that the religious society was duly incorporated under the statute; and that the respondents were elected trustees of the same. This would give the trustees a right to bring a suit in their corporate name for an injury to the property. (See chap. 47, R. S., 1849, and chap. 66, R. S. 1858, secs. 7 and 8). The other branch of the objection seems to imply that the suit is brought for the purpose of dissolving a corporation having an actual existence, or to oust certain parties from acting as a corporation, or to test the fact of their incorporation. We have already stated that the object of the suit appeared to be to restrain the appellants from interfering with the possession and enjoyment of the temporalities of the church and society, upon the ground that they had no right whatever so to do, and that we could not see that the state or attorney general had any particular interest in the litigation. The proceeding is not analogous to an information in the nature of a quo warranto. This is very apparent if the allegations of the complaint are considered. It is quite probable that the question whether the religious society has been dissolved, or if not dissolved, whether the appellants or respondents are the lawfully chosen trustees thereof, and as such entitled to take into their possession and under their control the tempo-ralities of the church and society, may come up for judicial inquiry on the trial; tout no such question can possibly now arise in view of the allegations of the complaint. The next, and, as we consider, the chief objection to the complaint is, that it does not state facts sufficient to constitute a cause of action. Upon this point we must say that the case is not entirely free from difficulty. But the .difficulty does not grow out of the fact that the code has abolished all distinctions between actions at law and suits in equity, or abridged the power of the courts of this state to grant equitable relief in a proper case — a proposition contended for on the brief of the counsel for the appellants. Eor although the writ of injunction is abolished by chapter 129, E. S., still when the complaint lays a foundation for an injunction, it will be granted by the court, either as a final judgment in the action or as a provisional remedy, in all cases where it would be allowed under the old chancery practice. Sec. 2, chap. 129, which provides, that when “ it appears from the complaint that the plaintiff is entitled to the relief demanded, and that such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce an injury to the plaintiff,” &c., would seem rather to enlarge than restrict the power of the court over the remedy by injunction. But we are further of the opinion that a court of chancery would grant an injunction under the facts stated in the complaint. The general rule undoubtedly .is, that in cases of private trespass an injunction would not be granted, for the reason that the aggrieved party had an adequate common law remedy by action, where proper damages could be assessed by a jury. In ordinary cases this was found to be sufficient for the protection of property. “But in cases of a peculiar nature, where the mischief was irremediable which damages could not compensate, or where the injury reached to the very substance and value of the estate, and went to the destruction of it in the character in which it was enjoyed,” then courts of equity would grant an injunction to prevent tbe injury complained of. Beatty et al. vs. Kurtz, 2 Peters, 566; Jerome vs. Ross, 7 J. C. R., 314; Varick vs. the Mayor &c., of the city of New York, 4 id., 53. Now it must be admitted that tbe circumstances of this case are so special, tbe nature and use of tbe property itself are so peculiar, tbat an ordinary action of trespass would furnish no adequate compensation for an injury to tbe possession. For would any mere pecuniary damages furnish any compensation to a religious society for repeated and constant acts of trespass upon its property and temporalities ? Most clearly not. Tbe entire value of such property consists in its free and undisturbed use and enjoyment for religious worship. Considering, therefore, the nature of this property, the use and purpose to which it is dedicated, tbe mischief arising from acts of trespass upon it, and tbe insufficiency of the ordinary legal remedies, we must say tbat, in our opinion, the complaint states a proper case for an injunction.

Tbe order of the circuit court overruling the demurrer, is affirmed.