Opinion of the Court.

where damages are to be assessed, it shall be lawful for the court to hear the evidence, and assess the damages without a jury for that purpose: Provided, that either party may have the damages assessed by a jury."

So that there is nothing in appellant's first assignment of

error.

The second is for overruling the defendant's motion to vacate the judgment and set aside the default. That is answered by what has already been said. The court had no power, at the January term, to set aside the judgment rendered at the previous November term.

The third assignment of error questions the legality of the order granting leave to the sheriff to amend his return. While the question does not properly arise upon this appeal, there is a complete answer to it.

It was expressly decided in the case of O'Conner v. Wilson, 57 Ill. 226, that the court might grant leave to the sheriff to amend his return after the term at which the judgment or decree was rendered, but it should be done only upon notice to the opposite party to be affected by it.

Now, in this case, the order granting the leave is not, nor are the circumstances under which it was made, or any exception thereto, embraced in the bill of exceptions. But the order, as it stands upon the record, shows that defendant's attorneys were present in court at the time. This, in the absence of a bill of exceptions, is sufficient to show notice, or what dispensed with the necessity of notice. That disposes of all objections to the order.

The fourth and fifth assignments of error challenge the legality and sufficiency of the evidence on which the assessment of damages was made by the court. Such a question can not be raised upon this record. The evidence taken at that time is not preserved by bill of exceptions. There is a presumption in favor of the action of the court. The judgment order recites that "the court, after hearing the proofs and allegations submitted herein by the plaintiff, and being

Syllabus.

fully advised in the premises. assess the plaintiff's damages," etc. But if the evidence had been preserved by bill of exceptions, signed and sealed at the November term, still it would not be before us on this appeal, because it is not an appeal from that judgment, and conceding that the question might have been incidentally involved in the motion to vacate the judgment, still, inasmuch as the court had no power to grant that motion, the matter is of no sort of consequence. And again, even if the court had the power to grant that motion, or if it had been passed upon and denied at the same term at which the judgment was rendered, we should have been disinclined to hold that there was any error in such ruling, because there is no attempt to excuse the default, and no grounds of defense are disclosed.

Appellant's counsel have argued at some length that the plaintiff's declaration is insufficient in substance. Even if that were so, the question can not arise upon this appeal from the supplemental order denying the motion to vacate the judgment, etc. It could only arise upon appeal from or writ of error to the judgment itself, and then it would not arise unless assigned for error, which has not been done.

We perceive no error in the record, and the order of the court denying the motion to set aside the judgment, etc., is affirmed.

Order affirmed.

OLE NELSON et al.

v.

JOHN L. BENSON et al.

1. CHURCH PROPERTY—division in case of a schism. Where property was purchased by a religious society, incorporated under the laws of this State, and paid for by voluntary contributions of the members, and it was agreed at the time, between all the members, that the property should be

Opinion of the Court.

held by the trustees for the common use and benefit of the members, and in case of a schism or division, for any cause, there should be a fair division of the same in proportion to their members, and a similar provision was adopted in their constitution, it was held, that by the term "schism" was meant a division or separation of the members of the body occasioned by a diversity of opinion on religious subjects, and that a difficulty growing out of an illegal election of trustees by a majority, and their excluding the minority from the use of the church, was not a schism to justify a court in decreeing a division of the property.

2. SAME-individual members can not maintain bill for division. In such a case, there must be a division or separation of the church into two religious bodies, and there must be a separate organization of a part of the original church in order to claim a partition of the church property. The partition must be applied for, not by members of the congregation as individuals, but by an organized religious body for purposes of relig ious worship, and the division sought must not be to divert the property from the uses to which it is devoted.

3. CHURCHES-remedy for illegal election of trustees. Where the majority of a church, pretending, contrary to the fact, that a portion of the trustees elected had resigned and refused to act, proceed to elect others in their place, without notice to the minority of the congregation, and such others wrongfully assume to act, the law furnishes an appropriate remedy against them by quo warranto, or by bill in equity to restrain their wrongful acts. 4. SAME-equity will enforce trusts under which property is held. Church property vested in the trustees of a religious body is held under a trust, and a court will enforce the trust and hold the trust property to the uses for which it was originally given, but it will not lend its aid to divert the property from the original uses and purposes to which it was devoted.

APPEAL from the Circuit Court of Boone county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Messrs. MAGEE & OLESON, and Mr. C. D. Roys, for the appellants.

Mr. WILLIAM LATHROP, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery, setting forth that the complainants and defendants, residents of Boone county, in this State, are the individuals composing the Norwegian Evangelical Luther congregation, a religious corporation organized

Opinion of the Court.

under the statute for the formation of such corporations, on the 29th of December, 1859; that in 1860, the congregation. purchased a piece of land for its use, which is now the subject matter of the suit, upon which valuable improvements have been put; that the purchase money was raised by voluntary contributions among the then members of the congregation; that, at the time, it was agreed between all the members of the congregation that the property should be held by the trustees for the common use and benefit of the members, provided that if at any time there should be a schism or division in the congregation, for any cause, then there should be a fair division of the property in proportion to their numbers; that on January 17th, 1870, the congregation adopted a new constitution for its government, containing the following article:

"In case of a schism (which God forbid), the right of possessing the common property of the congregation is to devolve upon two-thirds (3) majority of its voting members. The price which those who then retain the property are to pay to those who then lose their interest in it is to be fixed according to the valuation made by three men, of whom each party chooses one and these two a third."

The bill then charges that on the 26th of September, 1870, the defendants. (pretending, contrary to the fact, that three of the four trustees who had previously been elected such, and whose terms of office had not expired, had resigned and refused to act,) held a meeting and unlawfully elected three certain other persons trustees of the congregation, without the knowledge or consent of the complainants; and that on or about the 13th day of November, 1870, the defendants took possession of all the common property of the congregation and excluded complainants therefrom, and refused to permit complainants to use and enjoy the same; that, by reason of such conduct of the defendants, a schism took place in the congregation, and complainants bring their suit in

Opinion of the Court.

order to obtain a division of the property according to their proportionate numbers.

The bill alleges the whole number of the congregation to be 59, of whom 28 were complainants, and that they had complied, on their part, with the provision of the article in their constitution for obtaining a distribution of the property, and that the defendants refused to act in the matter.

The court below sustained a demurrer to the bill, and dismissed the same, and the complainants prosecute this appeal.

The foundation of the bill is, that a schism has occurred in this church or congregation. The bill does not show that there has been a schism. but only shows the commission of one or more unlawful acts on the part of the defendants. If there has been an illegal election of trustees, there is an appropriate remedy at law against the wrongful trustees by quo warranto, or in equity by injunction. For the unlawful disturbance or exclusion of the defendants from the use and enjoyment of the property, there is a different form of remedy from the one here pursued. Any members of the congregation that may suffer such a grievance as that complained of, are not at liberty to call it a schism, and thereupon demand a division of the church property, and have applied their proportionate interest therein to their own individual use. There must be a schism, and none such is shown here. We understand the appropriate meaning of that term to be, a division or separation in a church or denomination of christians occasioned by diversity of opinions. The bill fails to show that there exists any difference of opinion upon religious subjects between complainants and defendants, or that complainants desire to establish or maintain religious worship for themselves.

The plaintiffs, we conceive, can not, as individuals, maintain the bill.

The property in question was acquired by a religious society organized as a religious corporation for the purposes of religious worship, under the statute for the formation of such