(dissenting).
With all respect I must dissent from the Opinion of the majority in this case. This follows from the specific nature and restrictive character of the language of the discretionary appeal statute, itself.
*14The instant case involves a quo warranto action instituted in the Chancery Court of Shelby County, Part II, pursuant to the provisions of T.C.A. § 23-2801 et seq. Appellants filed a motion to dismiss pursuant to Rule 12.02 of the Rules of Civil Procedure. The Chancellor overruled the motion and granted a discretionary appeal to this Court.
The State of Tennessee, hereinafter referred to as complainant, commenced the instant action by and through Phil M. Canale, Jr., District Attorney General for the Fifteenth Circuit, on relation of E. Woody Hall, A. J. Reddick, and Samuel W. Davis. This suit was instituted against Minimum Salary Department of the African Methodist Episcopal Church, Incorporated, a Tennessee corporation, and the directors of the above named corporation, to-wit: H. Ralph Jackson, E. M. Johnson, W. L. Jamerson, Vernalure Patterson, Loyce Patrick, and M. D. Blackburn. In this opinion the corporation and its directors will be referred to as defendants.
Complainant alleges that the relators, E. Woody Hall, A. J. Reddick, and Samuel W. Davis, are ordained ministers of the African Methodist Episcopal Church, Incorporated, which is a nonprofit corporation organized and existing by virtue of the laws of the Commonwealth of Pennsylvania; that Minimum Salary Department of the African Methodist Episcopal Church, Incorporated, is a Tennessee corporation not for profit organized pursuant to T.C.A. § 48-1301 et seq.; that Minimum Salary Department maintains its offices and principal place of business in Shelby County, Tennessee; that pursuant to T. C.A. § 48-1309 the Tennessee corporation is a subordinate board or agency of the African Methodist Episcopal Church having as its purpose to receive funds from the Church, invest those funds, and disburse the proceeds of the investments to supplement the salary of the ministers of the Church.
Complainant further alleges that the individual defendants, H. Ralph Jackson, E. M. Johnson, W. L. Jamerson, Vernalure Patterson, Loyce Patrick, and M. D. Blackburn are the directors of Minimum Salary Department; that the board of directors approved a loan of corporate funds to defendant H. Ralph Jackson in violation of T.C.A. § 48-814(2); that the members of the board of directors have conducted the business of Minimum Salary Department and administered funds of the corporation in violation of their fiduciary duty as directors in that defendant directors approved and loaned $400,000.00 to two foreign corporations and did not take any security for the repayment of this amount; that the directors have used the funds of Minimum Salary Department to pay their own personal indebtedness;, and that the individual defendants have used the funds of the corporate defendant to invest in ventures for their own personal profit. Complainant prays that defendants be required to account for their management of the property entrusted to their care; that a receiver be appointed to take charge of the affairs of Minimum Salary Department and to marshal its assets; that all improper alienations of funds and property be set aside and restrained; that the individual defendants be removed as directors of defendant corporation; and that Minimum Salary Department be removed as trustee of the funds of the African Methodist Episcopal Church, Incorporated.
Defendants filed a motion to dismiss pursuant to Rule 12.02 of the Rules of Civil Procedure. Defendants have five separate grounds stated in their motion. These grounds are: (1) that the trial court has no subject matter jurisdiction of the instant controversy; (2) that the court below lacks jurisdiction over the person of the defendant; (3) that the African Methodist Episcopal Church, Incorporated, is an indispensable party which has not been joined as a party defendant; (4) that the complaint fails to state a claim upon which relief can be granted in that the instant suit was brought to determine private ecclesiastical matters of a church; and (5) that the quo warranto suit is pre*15mature since there is effective and adequate remedy provided by the parent church to redress any grievances.
The Chancellor determined the motion to dismiss was not well founded and overruled it. He granted defendants a discretionary appeal to this Court pursuant to T.C.A. § 27-305. T.C.A. § 27-305 provides as follows:
“Discretionary appeal before final decision. — The chancellor or circuit judge may, in his discretion, allow an appeal from his decree in equity causes determining the principles involved and ordering an account or a sale or partition or other character of reference, before the account is taken or the sale or partition is made or the reference had; or he may allow such appeal on overruling a de-murrrer; or he may allow any party to appeal from a decree which settles his right, although the case may not be disposed of as to others; or he may allow any party to appeal from a judgment or decree which settles the rights of the parties, although the amount of damages or compensation has not been determined.”
In the instant case we need not determine whether or not the Chancellor was correct in overruling the motion to dismiss since we are confronted with the threshold question of whether this Court has jurisdiction to hear the discretionary appeal. After thoroughly reviewing the record, the scope of our discretionary appeal statute, and our prior decisions, we hold that jurisdiction of this Court cannot be invoked in the case at bar and that the Chancellor improvidently granted the discretionary appeal.
In Tennessee a quo warranto proceeding is a suit which is equitable in character. State ex rel. v. Ward (1931) 163 Tenn. 265, 43 S.W.2d 217. However, the mere fact that a particular action is an equity cause does not in and of itself allow this Court to entertain a discretionary appeal. The rule is well settled in Tennessee that the Chancellor’s discretion to grant an appeal under T.C.A. § 27-305 is limited to those cases expressly enumerated in the statute. See Employers’ Indemnity Co. v. Willard (1911) 125 Tenn. 288, 151 S.W. 1029, and cases cited therein; Grant v. Martin (1968) 221 Tenn. 563, 428 S.W.2d 785.
It is apparent beyond dispute that the General Assembly has not empowered Chancellors or Circuit Court Judges to grant a discretionary appeal from an order overruling a motion to dismiss made pursuant to Rule 12.02. It is a function of the Legislature and not of this Court to amend the statute to allow a discretionary appeal when a motion to dismiss under Rule 12.02 is overruled in the trial court.
I would dismiss the appeal, at the cost of defendants.