Trotter v. Debnam

210 S.E.2d 551 (1975)

24 N.C. App. 356

Rev. C. R. TROTTER, Pastor of Good Hope Baptist Church, et al., Plaintiffs, v. Fred DEBNAM, et al., Defendants.

No. 7410SC806.

Court of Appeals of North Carolina.

January 2, 1975.

*553 Young, Moore & Henderson by R. Michael Strickland, Raleigh, for plaintiff appellees.

Kirk & Ewell by John E. Tantum, Wendell, for defendant appellants.

BRITT, Judge.

Appellants contend first that the trial court erred in denying their motion to quash the contempt citations for the reason that Judge Godwin's order, on which the citations were predicated, was unconstitutional. We find no merit in this contention.

In Reid v. Johnston, 241 N.C. 201, 204, 85 S.E.2d 114, 117 (1954), our Supreme Court, speaking through Parker, Justice (later Chief Justice), said:

The legal or temporal tribunals of the State have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, for there is a constitutional guarantee of freedom of religious profession and worship, as well as an equally firmly established separation of church and state, but the courts do have jurisdiction, as to civil, contract and property rights which are involved in, or arise from, a church controversy. (Citations). This principle may be tersely expressed by saying religious societies have double aspects, the one spiritual, with which legal courts have no concern, and the other temporal, which is subject to judicial control.

In Reid, the court further held that a Missionary Baptist Church, being congregational in its church polity, a majority of its membership, nothing else appearing, is entitled to control its church property; however, a majority of its membership is supreme and is entitled to control its church property only so long as it remains true to the fundamental faith, usages, customs, and practices of that particular church, as accepted by both factions before dissension arose.

The principles declared in Reid were followed in several decisions of our appellate division until the decision of this court in Atkins v. Walker, 19 N.C.App. 119, 198 S.E.2d 101, aff'd 284 N.C. 306, 200 S.E.2d 641 (1973). The decision in Atkins was brought about because of the decision of the U. S. Supreme Court handed down in 1969 in the case of Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, et al., 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658.

In the cited U. S. Supreme Court opinion, the question presented was stated thusly: "The question presented is whether the restraints of the First Amendment, as applied to the States through the Fourteenth Amendment, permit a civil court to award church property on the basis of the interpretation and significance the civil court assigns to aspects of church doctrine. * * *" The court answered the question in the negative. However, the court went further and held: "It is of course true that the State has a legitimate interest in resolving property disputes, and that a civil court is a proper forum for that resolution. * * *"

In Atkins, our State Supreme Court held that in view of the cited U. S. Supreme Court opinion, certain principles stated in *554 Reid are no longer authoritative; however, in Atkins, 284 N.C. page 318, 200 S.E.2d page 649, we find:

It nevertheless remains the duty of civil courts to determine controversies concerning property rights over which such courts have jurisdiction and which are properly brought before them, notwithstanding the fact that the property is church property. Neither the First Amendment to the Constitution of the United States nor the comparable provision in Article I, Section 13, of the Constitution of North Carolina deprives those entitled to the use and control of church property of protections afforded by government to all property owners alike, such as the services of the Fire Department, police protection from vandals and trespassers or access to the courts for the determination of contract and property rights. * * *

Appellants argue that the case at bar involves ecclesiastical differences between the opposing factions; that the Godwin order was based on ecclesiastical considerations, therefore, it was and is void. We reject this argument. In our opinion, the pleadings present questions that are justiciable in the civil courts and Judge Godwin's order did not violate the area forbidden in Atkins.

Appellants further argue that the Godwin order is unconstitutional for the reason that it requires the parties, and those aligned with them, to make monetary payments as a condition to their right to worship. Since the order appealed from was in no way predicated on the portions of Judge Godwin's order providing for monetary payments, we do not reach the question as to the validity of those provisions.

Appellants contend that the court erred in denying their motion to quash the contempt citations for the reason that Judge Godwin's order was never served on appellants and they are not parties to the action.

G.S. § 1A-1, Rule 65(d) provides:

Form and scope of injunction or restraining order.Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined or restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice in any manner of the order by personal service or otherwise.

We find no merit in the contention that appellants had no notice of Judge Godwin's order prior to the conduct complained of on 14 April 1974. The record and stipulations of counsel disclose that appellants had actual notice of the order in addition to constructive notice that was provided.

Appellants further contend that they are not parties to the action, nor "officers, agents, servants, employees" or attorneys of any party; and that Judge McLelland made no finding that they were "in active concert or participation" with any of the parties, their officers, etc. Responding to this contention, appellees argue that since appellants entered no exception to the order appealed from, the question as to sufficiency of findings is not presented.

It appears to be settled in this jurisdiction that an appeal itself constitutes an exception to the judgment or order appealed from and presents the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment. 1 Strong, N.C. Index 2d, Appeal and Error, Sec. 26, pp. 152-153. We think the question as to "active concert or participation" by appellants is presented.

Contempt proceedings being criminal in nature must be strictly construed. In re Hege, 205 N.C. 625, 172 S.E. 345 *555 (1934). Admittedly, appellants are not "named" parties to this action, nor the officers, agents, servants, employees, or attorneys of any named party. Therefore, under Rule 65(d), to find them in contempt, we think it was necessary for the trial court to find that they were "in active concert or participation" with one or more of the named parties to the action or their officers, agents, servants, employees, or attorneys. This the trial court failed to do. For failure to make this finding, the order appealed from must be vacated and the cause remanded for another hearing. It is so ordered.

Remanded.

VAUGHN and ARNOLD, JJ., concur.