Fernsler v. Seibert , 1 Sadler 37 ( 1885 )

Mr. Justice Green

delivered the opinion of the court:

We think that in any view of this unfortunate controversy we must sustain the 7th, 8th, 9th, and 10th assignments of error. Substantially they constitute an oiler to prove that the Rev. Eernsler was duly elected pastor by the congregation on September 29, 1878, by a majority of the persons then composing the congregation; that, in pursuance of his election he moved into and occupied the parsonage and continuously performed his duties as pastor, up to the time of the trial of this case; and that after his election he entered into an agreement with the twelve members of the council representing the congregation, under which agreement he moved into and occupied the parsonage and continued to be their minister. It is not possible that any of these facts could have been at issue in the bill in equity previously filed by some of tbe parties representing one side of the controversy, against some of those representing the other side, because that proceeding commenced in January, 1876, and closed with a master’s report filed December 10, 1876, and an order of dismissal on April 13, 1878, which was several months before the pastoral election offered to be proved was held. If the facts proposed to be given in evidence are true, and for the purposes of the present discussion we are bound to assume their truth, it is impossible now to understand why they should not control the case. There is no question of doctrine between these parties. The congregation had an undoubted right to elect the defendant, Eernsler, to be their pastor if they chose to do so; and if they did, and put him in possession of the premises to recover which this action is brought, he certainly had a right to remain there until such right was in some way forfeited. We cannot understand why the evidence offered under these assignments was rejected. The only reason stated by the learned court below was the conclusiveness of the decree in the equity case, but we cannot regard that as a tenable reason. Even had the parties and the proceeding been the same, which is extremely doubtful, we cannot understand why the congregation might not subsequently change its mind and elect the defendant as its pastor. Indeed, this is the very reason now assigned for not prosecuting the appeal from the decree in the equity case, and it seems to be a sufficient one. We cannot consider the merits of the lamentable, and, as it seems to us, unnecessary controversy between these parties, because they are not before us.

We do not sustain the other assignments because, although we have great doubt whether ejectment is the proper remedy in such a case, we cannot say that there may not be some possible phase of the testimony in which it can be sustained; and while the equity proceeding was certainly not conclusive against the rejected offers of testimony, it may possibly have some bearing upon the rights of the parties. We expressly abstain from deciding either of these questions at this time. We scarcely see the materiality of the evidence offered under the 5th and 6th assignments and therefore do not sustain them. The 11th is sustained because the court there also held the decree in the equity case conclusive.

Judgment reversed and venire de novo awarded.