Slaughter v. Dempsey

NED SLAUGHTER et al., Appellants, v. H. D. DEMPSEY, Respondent.

COUNSEL

Sylvester Isonberg for Appellants.

Curtis C. Taylor for Respondent.

OPINION

MOORE, P. J.

No brief having been filed on behalf of respondent herein this appeal is submitted upon appellants' opening brief pursuant to rule 17b of the Rules on Appeal. For two reasons the judgment must be affirmed.

Appellants instituted this action to enjoin defendant from acting as pastor of the Big Bethel Baptist Church situated in the city of Los Angeles and from interfering with plaintiffs in the administration of the church. They alleged that at the time of the organization of the church in 1941 it was agreed that its temporal affairs should be governed by Hiscox's Guide and Directory for Baptist Churches; that such guide provides that no pastor shall be imposed upon a Baptist church without the consent of its qualified and active members and [71 Cal. App. 2d 397] that at a meeting of the members defendant was removed from the pastorate to which he had been duly elected.

After the evidence of the plaintiffs had been introduced defendant moved for a nonsuit on the ground that the evidence affirmatively proved that at the meeting at which the appellants undertook to remove appellee from the pastorate only 9 members including appellants out of a membership of 30 were present, and that the meeting had not been called as required by the governing rules. The motion was granted on February 2, 1945, was entered in the minutes of the court and no appeal was taken therefrom.

[1] Failure to appeal from the judgment of nonsuit effected a legal termination of the litigation. (Code Civ. Proc., § 581; McColgan v. Jones, Hubbard & Donnell, Inc., 11 Cal. 2d 243, 246 [78 P.2d 1010]; Tromanhauser v. Grisemer, 123 Cal. App. 153 [11 P.2d 32].) But two strange occurrences having intervened served to prolong the contest resulting in a "Judgment" which is now before us. Two weeks after the nonsuit had been entered the court signed and filed findings and decision. Then duly came the motion for a new trial in the argument of which both parties participated; then its denial. Appeal "from the judgment heretofore rendered therein" was filed on April 9, 1945. Even though we ignore the judgment of nonsuit we find no merit in the appeal.

[2] The court made findings upon all of the material issues in favor of appellee and particularly found that a pastor cannot be separated from his church without at least three months' notice in writing, as provided by the rules governing the church; that the pulpit was not declared vacant by a majority of the members; that appellee was not ousted from the pastorate but that a meeting was convened by the trustees at the residence of one of the members at which only 9 out of a membership of 30 were present, including appellants; that an abortive motion was adopted to remove appellee as pastor.

The evidence supporting these findings consists of (1) the rules governing the church; (2) the testimony of appellee that no meeting of the membership was called as the rules require; (3) the minutes of the trustees showing that the meeting which attempted to remove respondent did not have a quorum present and therefore that the pulpit was not declared vacant by a majority of the members.

We are powerless to do more than affirm a judgment where the record discloses substantial evidence in support of the [71 Cal. App. 2d 398] findings. (Crawford v. Southern Pacific Co., 3 Cal. 2d 427 [45 P.2d 183]; Fischer v. Keen, 43 Cal. App. 2d 244, 248 [110 P.2d 693].)

The judgment is affirmed.

McComb, J., and Fox, J. pro tem., concurred.