McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
[12 NJSuper Page 16] Upon the theory that the order of the judge of the Chancery Division denying the defendant's motion to strike the amended complaint filed by leave of court in this action involved the determination of a question of jurisdiction, the present appeal comes before us. Rule 4:2-2
(a) (3). Since the propriety of the prosecution of the appeal has not been a subject of debate, we express no opinion on that feature of the case. But see, Rossbach v. The Evening News Pub. Co. , 3 N.J. Super. 143 (App. Div. 1949); Petersen v. Falzarano , 9 N.J. Super. 106 (App. Div. 1950); Behrman v. Egan , 9 N.J. Super. 171 (App. Div. 1950).
A few words will be informative of the sequence of events in the progress of this action. The litigation was inaugurated on May 13, 1949, in the Chancery Division of this court by the plaintiff, New Jersey Annual Conference of First Episcopal District of the African Methodist Episcopal Church primarily to enjoin the defendant from acting as pastor of the Mt. Zion Church of Plainfield, New Jersey, and to restrain him and all others from interfering with the pastor appointed by the bishop to serve that congregation. Compare, Mathis v. Holmes , 134 N.J. Eq. 186 (Ch. 1943).
On May 31, 1949, restraint was granted pendente lite. No appeal has been taken from that order. Rule 4:2-2(a) (1). On July 22, 1949, the defendant was ordered to show cause why he should not vacate not only the church building, but also the adjoining parsonage. On August 26, 1949, an order issued commanding the defendant to relinquish his occupancy of the parsonage. On September 12, 1949, an order followed directing the defendant to show cause why he should not be adjudged in contempt for his disobedience of the order of August 26, 1949. On September 23, 1949, the defendant was adjudged guilty of civil contempt.
It was from the last-mentioned adjudication that the defendant prosecuted an appeal to this Division. On appeal it was resolved that "since no one asserting any property right, legal or equitable, was joined as party plaintiff or party petitioner, there was no one before the court who had any standing to question the use of this property (the parsonage) of the church; consequently, the court lacked jurisdiction to make the order of August 26, 1949." 6 N.J. Super. 348, 352 (App. Div. 1950).
Thereafter, and obviously in consequence of the decision of the appellate tribunal, a motion was made in the trial division
upon due notice to the defendant for leave to add as co-plaintiffs in the action certain persons represented to be trustees and members of the Mt. Zion Church, and to make the appropriate amendments to the original complaint. Vide, Everett v. First Presbyterian Church , 53 N.J. Eq. 500 (Ch. 1895); Skinner v. Holmes , 133 N.J. Eq. 593 (Ch. 1943); R.S. 16:1-25.
The application was resisted and briefs submitted. On August 7, 1950, an order was filed directing that the designated persons "be admitted as co-plaintiffs, and as members and trustees of Mt. Zion African Methodist Episcopal Church of Plainfield with the present plaintiff and on the same set of pleadings now before the court and the present plaintiff shall have leave to file an amended complaint within 10 days; and that the intervenors be permitted to adopt all allegations of the complaint where applicable and pray for the same relief now asked for in the complaint." Permission was accorded the defendant to respond by further pleading or otherwise to the complaint as amended.
The amended complaint was filed forthwith. No appeal was taken from the order of August 7, 1950, but on or about August 31, 1950, counsel for the defendant served notice that on September 6, 1950, he would "move for the dismissal of the amended complaint" for the following reasons:
"1. The said Amended Complaint is not verified.
2. The original Complaint as filed herein is not annexed to the said ...