dissenting. I am unable to concur in .the opinion of the majority of this court. The action was in the nature of the common-law action of ejectment, and though the case was tried to the court in the place of a jury, the findings of fact of that court must be given the same weight and effect as if they Tad been those of a jury. So, too, the question at issue is not, as stated in the majority opinion, whether the defendants have departed from the original Icelandic Lutheran faith, but whether or not they have departed from the original faith of the Thingvalla Congregation, and have violated its- constitution. The decision involves an interpretation of that constitution, and ultimately and specifically an answer to the question as to whether or not by adopting the instrument the congregation, no matter what the original faith of Martin Luther or of the Icelandic Church might have been, accepted, as far as it was concerned, the Bible as fully and plenarily inspired, and made this belief a necessary and fundamental feature of its congregational faith. The questions presented are questions of fact, rather than of law, or, at the most, are mixed questions of law and of fact. Hale v. Everett, 53 N. H. 9, 16 Am. Rep. 82; Gibson v. Morris, 28 Tex. Civ. App. 555, 67 S. W. 433; Wiswell v. First Cong. Church, 14 Ohio St. 32; First Baptist Church v. Rouse, 21 Conn. 160. They are therefore for the jury, or for the court acting as a jury, and not for the court as a court, to pass upon. 38 Cyc. 1524; Mantz v. Maguire, 52 Mo. App. 136; School Dist. v. Lynch, 33 Conn. 330; Primm v. Haren, 27 Mo. 205; Young v. Stephens, 66 Mo. App. 222; Carp v. Queen Ins. Co. 104 Mo. App. 502, 79 S. W. 757; Bass v. Jacobs, 63 Mo. App. 393; M’Kean v. Wagenblast, 2 Grant, Cas. 462; Reynolds v. Richards, *33714 Pa. 205. And if there is in the record competent evidence in support of tbe findings of tbe trial court, we are powerless to set aside these findings, even though there may be much, and perhaps equally conclusive, evidence in opposition thereto. The learned trial judge found “that the Thingvalla Congregation was organized in 1889 as a Lutheran congregation, adhering to the doctrine and tenets of faith embraced by that denomination; that the doctrine of plenary inspiration of the Bible was one of the fundamental doctrines of the faith of the Thingvalla Congregation at the time of its organization, and that the constitution of the Thingvalla Congregation at that time, and ever since, has presupposed and now presupposes that doctrine; that the defendants do not accept the doctrine of the plenary inspiration of the Bible, but at the time of the commencement of this action adhered to, and now do adhere to, a doctrine materially different, namely, that each individual may choose or reject portions of the Bible as inspired or as not inspired, and that the defendants have materially and fundamentally departed from the faith of the congregation which it held when organized in 1889, and which it has since held and now holds, and from the doctrines and tenets of faith of the said congregation as expressed in its constitution.”
Though much of the testimony of the defendants is directed towards showing the position of the Church of Iceland and even of Martin Luther himself toward the doctrine of plenary inspiration, the real question to be determined is the attitude of the Thingvalla Congregation at the time of the adoption of its constitution in 1889, and whether at that time the congregation, and the synod to which it belonged, believed in the plenary doctrine, and considered a belief in it to be necessary and fundamental.
Though there is evidence to the contrary, there is much in support pf the findings of the trial judge, and such being the case this court, which is sitting merely as an appellate tribunal, in a law case cannot interfere therewith.
Article 2 of the Constitution of the Thingvalla Congregation provided: “That the word of God as it is revealed in the canonical Scriptures is the true fountain and perfect law of the congregation in matters of doctrine, faith, and morals. 2. The congregation accepts the, doctrines of Holy Scriptures in conformity with the Lutheran *338Churcb in Iceland as expressed in its confessional documents. 3. Tbe congregation shall be affiliated with the Lutheran Synod of Icelanders in this country, which accepts the same confession as the congregation.”
In 1889, and two weeks after the adoption of this constitution, the Thingvalla Congregation joined the Evangelical Lutheran Synod of Icelanders in America, whose, constitution, among other things, provided that “the Synod believes that the Holy Scriptures, that is, the canonical books of the Old and New Testaments, are the revealed Word of God and the only true and reliable rule of belief, doctrine, and life of men. . . . Every Lutheran congregation of Icelanders in America, which desires to join the synod, must accept its constitution.”
It was admitted by counsel for appellants on the oral argument, and there is certainly much evidence in support of the proposition, that the appellants do not adhere to the doctrine of plenary inspiration. There is also much evidence in support of the proposition that both the constitutions of the synod and of the Thingvalla Congregation presupposed that belief. Dr. Samuel E. Halfyard, for instance, though one of the witnesses for the appellants, positively stated that “the phrase that says that the canonical books are the Word of God would imply the plenary theory of inspiration or the canonical theory of inspiration, but not necessarily the theory of inspiration known as free inspiration, or, as has been stated here this afternoon, partial inspiration. . . , Speaking as a theologian, I would say that a man who makes the declaration first that the word of God as revealed in the canonical hooks is the supreme guide and rule, and then makes the declaration that he reserves the right lo accept and reject in matters of Holy Scripture, is not asserting anything further than what is commonly known as the right of private judgmentIt is true that he afterwards intimated that in his opinion'Martin Luther was himself a believer in the doctrine of free inspiration and in the right of the individual to the exercise of his own private judgment, but, as we before stated, the question is not what Martin Luther believed, but the meaning of the terms which were used in the constitution of the Evangelical Lutheran Synod of Icelanders and of the Thingvalla Congregation.
This, as we before stated, is the testimony of one of the experts for the defendants and appellants; and as we understand the testimony of Dr. Eobertson, it is in the main to the same effect, though, of course, *339both. Dr. Halfyard and Dr. Robertson make it clear that they and the church which they represent (the Methodist Episcopal) do not believe in the doctrine of plenary inspiration. When we come to the testimony of the witnesses for plaintiffs, we find more positive testimony. It would be absurd, indeed, to contend that there is not abundant testimony in support of the findings of the trial court. These witnesses are Rev. K. K. Olafson, a former pastor of the Thingvalla Congregation; Rev. N. S. Thorlakson and Rev. Jonsson, vice president and president respectively of the Evangelical Lutheran Synod of Icelanders, Professor Ness of Concordia College in Moorhead, Minnesota, and a member of the United Norwegian Church; Rev. Walper, a member of the Missouri Synod, and Rev. Fossmark, a member of the Norwegian Synod. Of these witnesses, the Rev. Olafson, the Rev. Walper, and the Rev. Thorlakson testify that the technical meaning of the Word “Scripture” is synonymous with “the whole Bible,” and that the expression the “Word of God” is synonymous with “the Word of God as it is revealed in the canonical Books of Scripture,” and means the Bible in its entirety. On the main question of the meaning of the constitutional provisions in issue, the testimony of Professor Ness is similar to that of the other witnesses mentioned, and is in part as follows:
Q. Would a congregation which holds that certain parts of the canonical books of Scripture are not inspired, but untrue and unreliable, be in conformity with the standards, of faith of Thingvalla Congregation as set forth in its constitution?
A. No.
Q. Would you call it a departure from the faith of the congregation ?
A. Tes.
The testimony of Rev. Mr. Eossmark, Lutheran minister-of Grand Forks, reads in part as follows:
Q. In your opinion would a congregation in adopting such a resolution be acting in conformity with § 1 of article 2 of the constitution of Thingvalla Congregation, which-reads as follows: “The Word o'f God as it is revealed in the canonical books of Scripture is the true *340fountain and perfect law of the congregation in matters of doctrine, faith, and morals ?”
A. It would not.
Q. Would you consider such an action a departure from the faith of I the congregation having this constitution?
A. Most certainly.
Q. State whether or not in your opinion this article of the constitution means that the canonical books of Scripture in their entirety are the supreme law and inspired Word of God?
A. Why, it means, in my opinion, that they look upon the Bible as a whole as the inspired word of God in its entirety.
Q. Would a congregation which holds that certain parts of the canonical books of Scripture are not inspired, but untrue and unreliable, be in conformity with the standards of faith of this congregation as it is prescribed by this article in its constitution ?
A. It would not..
jRev. Mr. Walper, a Lutheran minister of Grand Forks, also testified on this point:
In my opinion a congregation adopting such a resolution (meaning defendants’ resolution of June 5th), could not be acting in conformity with § 1 of article 2 of the constitution of Thingvalla Congregation. I would consider such action a departure from the faith of such congregation. Said article in the constitution means that the canonical books of Scripture in their entirety are the inspired Word of God.
In the testimony of Eev. L. 0. Walper we find the following:
Q. Does your church permit an individual member to hold a view that certain portions of the Bible are uninspired, and still remain within the church as a member in good standing ?
A. It does not permit that. A member of the church who took that position would be considered to have departed from the faith of the church. . . .
Q. Without reading to any extent from this M. Michelet’s Life of Luther, I will just call your attention to certain passages. I refer now to page 2Y2, where he quotes Luther as follows: “I candidly avow my ignorance as to whether I rightly understand the Psalms in their legiti*341mate sense. I do not, however, doubt tbe verisimilitude of my version of them. Amongst those who have rendered them, one has been in error in one part, and another has mistaken the meaning in another part. I discover meanings that were overlooked by St. Augustine; others who come after me will, I am aware, perceive much that has escaped me. Who will venture to affirm that anyone has thoroughly understood a single psalm? Our life is a beginning and a progress, not a consummation. He is best who approaches nearest to the spirit. There are degrees in life and in action; why. should there not be the same in mind? The apostle declares that we are transformed from one light to a greater one.” Respecting the New Testament Luther remarked: “The gospel of St. John is the true and pure gospel — the chief of the gospels — inasmuch as it contains the greatest portion of our Savior’s sayings. Thus also the epistles of St. Paul and of St. Peter are higher in authority than the gospels of St. Matthew, St. Mark, and St. Luke. In a word, St. John’s gospel and his first epistle, the epistles of St. Paul, more especially those to the Romans, the Galatians, and the Ephesians, together with the first epistle of St. Peter, constitute that portion of the New Testament which most clearly show Christ, and which contain and teach all that is useful and necessary to know, even, were you never to see any other books.” He did not consider the epistle to the Hebrews nor that of St. John to be of apostolic origin. He thus delivered his sentiments respecting that of St. Jude: “It is quité undeniable that this epistle is either an extract from or a copy of. the second epistle general of St. Peter. The expressions are nearly identical in both. Jude speaks therein of the apostles as having been their disciples, and as writing after their decease. He quotes texts and mentions circumstances which are nowhere else to be found in the Scriptures.” Luther’s opinion respecting the Apocalypse is remarkable : “Let each man judge of this book according to the light that is in him and by his own particular perceptions. I do not desire to impose my opinion respecting it upon anyone. I say simply that which I think of it myself. I look upon the Revelations of St. John to be neither apostolic nor prophetic.” On another occasion he said: “Many of the Fathers of the Church rejected this book; consequently every man is at liberty to treat it according to the dictates of his own mind'. For my part, one single reason has determined me in the judgment I have. *342come to respecting it, wbicb is that Christ is neither adored in it, nor is he therein taught such as we know him.” These being claimed to be by the author as quotations from Luther’s works, do you dissent from all this that I have read ?
■ A. You must consider here that Luther was originally not a Lutheran in our sense of the word, but that Luther was originally a Catholic and a monk, and that through study of the Bible — Iioly Scripture — he became enlightened, and that he was raised by the Catholic Church, and that he, more and more through studies of Holy Scriptures, became what he was in his latest years.
Q. You don’t deny that these quotations are correctly taken from Luther’s works, do you ?
A. I do not deny it. I make no distinctiop between verbal and plenary inspiration. It means that every word in the Bible is literally true. For instance, that Eve was made out of a rib out of the side of Adam; that the world was created in six days of twenty-four hours each; in short, that every expression in the Bible relating to geography, geology, and biology is literally true, and also that it is historically true, and that if there is any astronomy in the Bible it is also true. That the sun actually stood still, for instance, at the command of Joshua, and so did the moon if it is mentioned there. If the plaintiffs in this case are members in good standing of the Icelandic Synod, and believe in plenary inspiration of the Bible, then in my judgment they are necessarily in harmony with my views that I have just now expressed, and if they are not, then they are not good Lutherans. Any man who disbelieves any of those things thereby immediately puts himself outside the pale of Lutheran Christianity. There is no word in the canonical books which I regard in any other light than the light I have thrown upon this subject now by my testimony. The holy authors were inspired by the Holy Spirit, and the Lloly Spirit selected the vehicle for each thought. That doctrine does not go to the extent of the punctuation marks in the original manuscripts. There were no punctuation marks nor any vowels in the Greek, — there were in the original. In the old manuscripts there were no vowels and no divisions of syllables or words. The marks that were supplied in the sixth century were only put there to make it easier for foreign students of this language to study it. For instance, as originally written, you would have the letters *343BEN, we will say; that might be bam or bairn, or anything else yon could make out of it by putting vowels in. They put in the vowels in the sixth century. The scholars who put them in, were not, in my judgment, inspired by the Holy Ghost. These marks which they put in, which represent the vowels, are not inspired. The state church of Germany has taken an extremely advanced ground on this doctrinal matter. We have in our confessions the Formula of Concord and all the confessions that are contained in the Book of Concord. So far. as the results of philosophical and scientific inquiry of modern times are against the Bible in the sphere of geology, archaeology, history, geography, and biology, and astronomy, I repudiate them. In my judgment any man who believes in the verbal or plenary inspiration doctrine of the Bible must repudiate them.I should say that our church believes that the Holy Spirit used the individuality of the author as he wrote the words of Holy Writ. I believe that the words were suggested to the author by the Holy Spirit.
As I construe the evidence also, the majority were not merely content with repudiating the doctrine of plenary inspiration as applied to the particular words of the accepted books of the Bible, but repudiáted whole passages, and to a large extent whole books. Dr. Bergman, for instance, who can be taken as expressing in a large measure the faith of the majority, stigmatizes as absurd a large number of the historical statements of the Old Testament. He says: “Now just this is characteristic of the literature of Israel, the Old Testament, that which contains any history in the proper sense; the writers of Israel did not write the history of their nation in the manner that history is written. They wrote homilies on national events, true and imaginary, but not history. They are much more concerned about the teaching than the history,— shape it and mould it as they see fit to support their doctrine.” He then goes on to state that the story that King David prepared for the house of the Lord “an hundred thousand talents of silver and of brass and iron without weight, for it is in abundance” (see 1- Chronicles 22, 14), was an absurdity, as such an amount of money would be more than all the present national debt of Great Britain. In the same way he stigmatizes as absurd the recitals in Numbers, 2, 32, as well as those in the 7th chapter of Numbers, in regard to the amount *344and number of sacrifices made in tbe desert. “When,” be says, “a Jew in tbe exile wrote a bomily (midrasb) on the basis of some historical event, be did not intend that it should be history, but a pious meditation or sermon on a historical basis.” On this basis be also seems to repudiate tbe story of Aaron and tbe Golden Calf (Exodus, 32). He states that “it is not necessary to think long about this story to realize bow utterly far from all truth it must be. . . . This is too much for a thinking man to believe when be considers tbe separate features; for instance, the punishment.”
In addition to all this I am of tbe opinion that tbe whole matter of doctrine has been adjudicated and decided by tbe Icelandic Evangelical Lutheran Synod of America, and that this court should follow this decision. Tbe decision of tbe synod was that “it therefore seems apparent that tbe majority of tbe Thingvalla Congregation (meaning the defendants herein) has been guilty of a direct violation of its own constitution and of tbe constitution of tbe synod, and therefore it is right to allow tbe petition which tbe minority of said congregation has presented to this convention for determination, to wit: That tbe minority be recognized as tbe rightful Thingvalla Congregation.”
This adjudication may not be final as a matter of law, or constitute res judicata in tbe strict sense of tbe term, but it is and should be persuasive evidence of tbe highest kind. When tbe church joined tbe synod, it expressly agreed “that tbe synod at its annual convention has tbe supreme power of decision in all disputes in church matters which may arise between or within its congregations.” Article 2, constitution of the synod.
It also agreed to article 13 of the constitution of the synod, which provided that “every Lutheran Congregation of Icelanders in America which desires to join the synod must accept its constitution.” It further agreed to article 3 of the constitution of the synod, which provided that “the synod believes that the Holy Scriptures, that is, the canonical books of the Old and New Testaments, are the revealed Word of God, and the only true and reliable rule of belief, doctrine, and life of man.”'
By joining the synod it accepted the doctrine of the synod, for article 2 of its own constitution expressly provided that “the congregation shall be affiliated with the Lutheran Synod of Icelanders in this country, which accepts the same confession as the congregation.” It is *345true that tbe action of tbe synod was not taken until on or about tbe 21st day of June, 1910, and was in tbe form of an adoption of tbe report of a committee of five wbicb was appointed to sit upon the matter. It is also true that tbe majority faction of the Thingvalla Congregation bad no representative at this meeting, and no definite notice of tbe appointment of tbe committee or of tbe bearing of tbe report. It is also true that prior to such meeting, and on or about tbe 6th day of June, 1910, such majority faction of tbe Thingvalla Congregation bad notified tbe synod of its withdrawal. It is equally true, however, that tbe dispute arose long before any such withdrawal, and was tbe cause thereof, and that on or about tbe 9th day of June, 1910, tbe president of tbe synod sent tbe following notice to tbe defendants and appellants:
Mr. Olafur Olafson,
Edinburgh, N. D.
Dear Sir: — I am in receipt of your letter of tbe 6th inst., together with a resolution of a meeting signed by Magnus Benjaminson, president, and Olafur Olafson, secretary. As a synodical convention will be held within a few days I am making no decision in tbe matter, but am referring it to tbe convention to be dealt with and disposed of. This I let you know in order that those who are concerned will have an opportunity to explain tbe matter to the convention if they so desire.
Tbe evidence also shows that article 2 of tbe constitution of tbe synod provided that “tbe synod at its annual convention has tbe supreme power to decide all disputes in church matters which may arise between or within its congregations.”
Erom all of this it is apparent that tbe proper tribunal to decide tbe doctrinal questions in controversy was tbe synod, and tbe fact that no member of tbe majority was present at tbe convention does nut in any way weaken tbe evidentiary value of its decision. It is true that it was made a short time after tbe notice of withdrawal, but it was made while acting upon such notice and before tbe same bad been accepted. Tbe constitution of tbe synod expressly provided for. tbe determination of such matters at such conventions, and, tbe withdrawal of tbe majority being based largely upon doctrinal differences, and tbe dispute having arisen while the church was' a member of the synod, it seems hardly proper to bold that a body of people may enter *346into a contract, provide for a tribunal wbicb may determine questions arising thereunder, and then avoid the decision of that tribunal, after a breach of that contract, by withdrawing from its allegiance to that tribunal. We realize indeed that every tribunal must provide a hearing and a day in court, and that without such there is no due process of law. Due process of law, however, does not always involve a notification of the exact day or hour when a tidal will be had; and when one knows that the matter will be considered in a meeting of a convention, and has an opportunity to send a delegate to that convention, the rules regarding due process of law would seem to be sufficiently complied with.
The matters of doctrine, indeed, which are before us, are such as should be determined by an ecclesiastical, and not by a civil, tribunal. The case before us is in the nature of an action of ejectment. Unless consent had been given that it should be tried by the court, it would have been submitted to a jury, and the absurdity and danger of submitting to an ordinary jury, or even to the ordinary judge, questions concerning theological differences, is too apparent to need amplification. We may accept the contention of counsel for appellants, “that the great weight of authority is to the effect that the jurisdiction of an ecclesiastical tribunal is subject to collateral attack,” but even if this be the case, I find no fault with the exercise of that jurisdiction in the case at bar, and, provided that there was a day in court, which I think there was, I am ready to adopt and emphasize the well-known rules that “civil courts act upon the theory that the ecclesiastical courts are the best judges of merely ecclesiastical questions and all matters which concern doctrine and disciplines;” “and where a civil right or the right of property depends on some ecclesiastical matter such as doctrine, discipline, or church government, the civil court, where the question may arise, will take the ecclesiastical decisions out of which the civil right has arisen as it finds them, accepting those decisions as matters adjudicated by another jurisdiction.” See 34 Cyc. 1184. I certainly adopt the general understanding of what are and what are not ecclesiastical questions, and that is: “An ecclesiastical matter is one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the *347power of excluding from sucb associations those deemed unworthy of membership by the legally constituted authorities of the church.” 34 Cyc. 1185. As I have said before, I believe there was the opportunity to be heard and the due process of law. I do not in all cases say that the courts will not inquire into the jurisdiction of an ecclesiastical body. I do however, say, except in the case of a palpable abuse of power, that “whether a case is regularly or irregularly before the assembly is a question that the assembly has the right to determine for itself, and no civil court will reverse, modify, or impair its action in a matter of purely ecclesiastical concern.” State ex rel. Watson v. Farris, 45 Mo. 183; Shannon v. Frost, 3 B. Mon. 253; Gibson v. Armstrong, 7 B. Mon. 481; Mack v. Kime, 129 Ga. 1, 24 L.R.A.(N.S.) 675, 58 S. E. 184; Trinity M. E. Church v. Harris, 73 Conn. 216, 50 L.R.A. 636, 47 Atl. 116; Robertson v. Bullions, 9 Barb. 65.
It is not necessary for me, however, to tab’s this position. Even if the action of the synod was not res judicatait constituted evidence of the most persuasive kind. “But suppose we .treat the action of the association as purely advisory, and not judicatory,” says the supreme court of Indiana, in Smith v. Pedigo, 145 Ind. 361, 19 L.R.A. 433, 32 L.R.A. 838, 33 N. E. 777, 44 N. E. 363, “still its action must have a controlling influence on the civil courts.” Again, the Supreme Court of the United States, in Bouldin v. Alexander, 15 Wall. 131, 21 L. ed. 69, a case in some of its aspects much like the one at bar, said: “They claim to be the Third Colored Baptist Church, and as such they were recognized by councils of Baptist churches duly called, and by the Philadelphia Baptist Association, an ecclesiastical body with which the church was associated. That body, it is true, was not a judicatory. Its action was not conclusive of any rights. But the fact that the complainants, and those acting with them, applied for recognition as the Third Colored Baptist Church, and that the association thus recognized them, is persuasive evidence that they were not seceders, and that their rights have not heen forfeited.”
The record, indeed, discloses that the question under consideration here was twice passed upon by the synod, and there can be and is no claim or pretense that on the first occasion at any rate the plaintiffs and the Thingvalla Congregation generally were not members of that synod. This was on the occasion of the passage of the so-called Frid-*348riksson resolution, in June, 1909, which construed the constitution of the synod, and defined the position of the synod and of its membership or congregations upon the question here in controversy, the same provision being in the constitutions of both the synod and of the Thingvalla Congregation. It is true that after the passage of this resolution the delegates of the Thingvalla Congregation withdrew from the convention in a body, but they were present at the time of the introduction and p'assage of the same, and participated in the discussion and action thereon, and there is no pretense that the congregation> as a congregation, withdrew from the synod, or that even the delegates themselves withdrew from the synod as a synod, until long after the schism in the Thingvalla Congregation and the withdrawal of the plaintiffs, that is to say, until June 5th, 1910. The so-called Eridriksson resolution was as follows: “The convention declares that the views which the synod’s organ, Sameinigin, has advocated during the past year, are the correct position of the synod, and protests against the attacks on those views which have appeared within the synod by ítev. E. J. Bergman in his periodical, Breidablik. And in consequence of these attacks, the convention makes the following resolution: 1. The convention denies that the confessions of the synod are merely advisory, and not binding, as has been contended by Rev. E. J. Bergman in Breidablik. Confessions are binding until they are repealed. 2. The convention denies that the clergymen of the synod have the right to teach whatever they please, even though they can say that they are teaching according to their best conscience and convictions. They do not have the right to teach within the synod anything which conflicts with what they have bound themselves to teach as pastors of the synod. 3. The convention denies that the religious consciousness of the individual has the power of decision over Holy Scripture and may reject its statements at pleasure, and the conclusion which follows from this, that the Bible is an unreliable book. On the other hand, the convention declares that it adheres to the confession of the synod that the entire Scriptures are the Word of God, reliable and inspired, and that everything in it ought to be judged according to the standard of the Bible itself.”
Added to the evidence afforded by the resolution of the synod is the testimony of a number of prominent divines who testify in support of the findings of the trial court and of the contention of the respondents. *349In addition to this is the testimony of Sigurbjom Gudmundson, who testified that he was one of the organizers of the congregation and a member of the committee which drafted the constitution, and that the intention of the framers of the constitution, when they drafted § 1 of article 2 thereof, was “that the congregation must accept the Bible and the whole thereof as the supreme law and inspired Word of God, and that it could not reject any part or parts of Scripture as not inspired.” This testimony, I believe, was competent. 34 Cyc. 1157; Robertson v. Bullions, 11 N. Y. 243.
I cannot, in the face of all this evidence, say that the findings and judgment of the trial court are not supported by competent and perr suasive evidence, and, being unable to make such findings, I am of the opinion that the judgment of. the trial court should be sustained. The whole matter, indeed, resolves itself around an interpretation of article 3 of the constitution of the synod, and ¶¶ 1 and 2 of article 2 of the Thingvalla Congregation, which at no time seem to have been amended; and which some witnesses at least construe to imply the doctrine of plenary inspiration. Much, it is true, is said by counsel of certain of the other provisions and amendments which recognize the confessional documents of the Icelandic and Lutheran churches, but in them is no reference to the question of the inspiration of the Scriptures, or the doctrines of plenary or free or partial inspiration, but merely to the cardinal questions of the Trinity and of the Godhead. The reference, in short, to these documents, in no way affects the scope and application of articles 2 and 3 of the respective constitutions.
I find no merit in appellants’ contention that the amended complaint stated no cause of action as it failed to properly allege what the particular tenets were from which the defendants had departed, wherein that departure consisted, and that plaintiffs themselves had adhered to these tenets. If, indeed, the complaint was lacking in anything, it was in definiteness and particularity, and the objection should have been raised by a motion before the trial, rather than by a motion to exclude any and all evidence after the trial had begun. We have held in a number of cases that a complaint will be most liberally construed on a motion to exclude all evidence thereunder, and such a rule is not only in conformity with the spirit of the Code as I see it, but with the holdings of the authorities also. “We cannot,” says Judge Cooley, *350in tbe case of Bauman v. Bean, 57 Mich. 1, 23 N. W. 451, “sanction-tbe practice of pleading to tbe merits, and then raising at tbe trial an objection in tbe nature of a demurrer. It is every way an inconvenient practice, and it tends to make litigation unnecessarily expensive. If a declaration fails altogether to set out a substantial cause of action, and is incapable of being made good by amendment, tbe objection may be taken in any stage of tbe proceedings; but even then, for very obvious reasons of convenience, tbe questions of sufficiency ought to be disposed of before parties are put to tbe expense of preparation for trial. But if tbe objections to tbe declaration are not necessarily fatal, tbe defendant has no claim to the indulgence of a bearing upon them at tbe trial.”
There is no merit in appellants’ contention that plaintiffs and respondents failed to specifically allege tbe incorporation of tbe defendants. Tbe incorporation was specifically alleged in tbe answer, and admitted upon tbe trial by tbe defendants. This I believe cured any omission that there might have been in the complaint. Omlie v. O’Toole, 16 N. D. 126, 112 N. W. 677; 31 Cyc. 714; Rogers v. Penobscot, 28 S. D. 72, 132 N. W. 792, Ann. Cas. 1914A, 1184; Sheibley v. Huse, 75 Neb. 811, 106 N. W. 1028, 13 Ann. Cas. 376.
Nor is there any merit in appellants’ ingenious argument that tbe majority of tbe congregation, by incorporating themselves after tbe secession, incorporated tbe minority, as tbe constitution provided for a rule by tbe majority. Tbe controversy is over tbe church property, and tbe church property alone. It is admitted that tbe incorporation was not perfected until August 12, 1910, while it was on June 5th that tbe majority withdrew from tbe synod, and specifically declared their renunciation or dissent from tbe doctrine of plenary inspiration. All tbe acts of secession, therefore, if secession there was, bad been committed before tbe incorporation, and if these acts amounted to a secession,-which the trial court was, I believe, justified in holding,, the property became vested in the plaintiffs under article 1 of tbe constitution, which provided that “if a division occurs in the congregation, tbe property shall belong to such portion as adheres to this constitution.” This, indeed, would have been tbe rulé, even if there bad been no constitutional provision. It seems, indeed, to be well established that “tbe separation or secession of -part of tbe members from a church *351does not destroy tbe identity of tbe cburcb, or lessen tbe right of those adhering to tbe organization, but members seceding from a cburcb thereby forfeit all right to tbe cburcb property, and tbe courts, when called upon, will award tbe property, and all rights pertaining thereto, to those who continue to adhere to tbe doctrine, tenets, and rules of tbe cburcb as they existed before tbe division, or, in case it is a denominational church, to those recognized by tbe highest judicatory of tbe denomination as .being tbe cburcb or congregation.” 34 Cyc. 1167; Venable v. Coffman, 2 W. Va. 310; Nance v. Busby, 91 Tenn. 303, 15 L.R.A. 801, 18 S. W. 874; Watson v. Jones, 13 Wall. 679, 20 L. ed. 666; Smith v. Pedigo, 145 Ind. 361, 19 L.R.A. 433, 32 L.R.A. 838, 33 N. E. 777, 44 N. E. 363; Krecker v. Shirey, 163 Pa. 534, 29 L.R.A. 476, 30 Atl. 440; Mt. Zion Baptist Church v. Whitmore, 83 Iowa, 138, 13 L.R.A. 198, 49 N. W. 81.
I am not unmindful of tbe cases of Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84; Holm v. Holm, 81 Wis. 374, 51 N. W. 579; West Koshkonong Congregation v. Ottesen, 80 Wis. 62, 49 N. W. 24; 24 Am. & Eng. Enc. Law, 361, 362 and cases cited; 34 Cyc. 1196, and cases cited in note 13; Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 139 Am. St. Rep. 41, 51 So. 947; Happy v. Morton, 33 Ill. 398; State v. First Catholic Church, 88 Neb. 2, 128 N. W. 657; 34 Cyc. 1157, and cases cited in note 5 and page 1158, note entitled “Possession of Corporation Presumed.” Dubs v. Egli, 167 Ill. 514, 47 N. E. 766 at page 768; Klix v. Polish Roman Catholic St. Stanislaus Parish, 137 Mo. App. 347, 118 S. W. 1171; 24 Am. & Eng. Enc. Law, 329-330 and cases cited; Calkins v. Cheney, 92 Ill. 463; Horst v. Traudt, 43 Colo. 445, 96 Pac. 259; Wilson v. Livingstone, 99 Mich. 594, 58 N. W. 646. In none of these cases, however, was there a constitutional provision such as in the case at bar, nor was the incorporation bad after tbe secession and without tbe consent or connivance of tbe regular or remaining congregation.
I am of tbe opinion that tbe judgment of tbe district court should be affirmed.