18531.

#### Garmon *et al. v.*Boozer *et al.*

Submitted March 8, 1954

Decided April 14, 1954.

*Elizabeth Brown, Maddox & Maddox,*for plaintiffs in error.

*C. T. Culbert,*contra.

Duckworth, Chief Justice.

The only question for decision being whether or not the court properly granted a nonsuit, an examination of the evidence submitted by the plaintiffs with reference to the pleadings discloses it to be sufficient to prove the case as laid, and the court erred in granting the nonsuit. *Reeves*v. *Jackson,*113 *Ga.*182 (38 S. E. 314); *Clark*v. *Bandy,*196 *Ga.*546 (27 S. E. 2d 17); *Wright*v. *Roseman,*209 *Ga.*176, 183 (71 S. E. 2d 426); *Buchanan*v. *Heath,*210 *Ga.*410 (80 S. E. 2d 393).

*Judgment reversed.*

*All the Justices concur.*

*543Other litigation involving the Congregational Methodist Church of East Rome has been.before this court in *Smith*v. *Kelly,*208 *Ga.*233 (65 S. E. 2d 795), and *Garmon*v. *Boozer,*209 *Ga.*570 (74 S. E. 2d 865). In *Garmon*v. *Boozer*this court reversed the trial judge because of error in overruling a demurrer to a plea of res judicata and in dismissing the petition. On the return of the remittitur to the lower court, and after the case came on for trial before a jury and at the conclusion of the evidence for the plaintiffs, on motion of the defendants, the court granted a nonsuit, and the exception here is to that judgment.

A previous order had overruled a general demurrer to the petition, but no exception was taken to that judgment. And the answer filed by the defendants admitted that, they were in possession and control of the church property, but the local church in a call conference had voted to withdraw from the District Conference, which accepted its withdrawal, and that it has had no authority over the East Rome church since its withdrawal and acceptance, but that they are still members of the East Rome Congregational Methodist Church in good standing with the general organization of the church.

Thus considering the pleadings and the evidence submitted, it was alleged and proved: That a schism of the membership in the local church has developed, one faction — of which the defendants in the lower court and the defendants in error are members —having called a local conference and there voted to withdraw from the District Conference by forwarding a letter to that effect. But the District Conference recognizes the group of members desiring to remain in the Conference, the petitioners and plaintiffs in error being a part of this group, who appealed the vote of withdrawal. The District Conference has not recognized the withdrawal of the East Rome church, but has recognized the withdrawal of the defendants and by resolution has stated that they are no longer members of the local church and have no right to the church property. The local minister, one of the defendants, has turned in his license to preach and it has been accepted and revoked, but he continues to act as pastor. The faction in control of the church property has refused to send delegates to the District Conference, make the proper reports, support the publishing house, college, or missionary program, or *544the general expenses of the church organization. The evidence showed that the defendants have departed from the discipline of the church and are no longer members, but it failed to prove the allegation that they have departed from and refused to accept certain parts of the doctrine and creed of the church unless the preaching by an unlicensed minister be a violation thereof.

The prayers of the petition are for equitable relief, enjoining and restraining the defendants from interfering with the petitioners in the possession, custody, and control of the church and premises for the purposes of attending or holding any religious meeting or services therein and thereon, enjoining the defendant minister, whose credentials have been revoked, from holding religious services therein, and a decree by the court that the property belongs to the Congregational Methodist Church of East Rome, a subordinate church under the jurisdiction of the local District Conference and of the General Conference of the Congregational Methodist Church.