City of Huntsville v. Miller
Decision Date | 16 October 1958 |
Docket Number | 8 Div. 917 |
Citation | 271 Ala. 687,127 So.2d 606 |
Court | Alabama Supreme Court |
Parties | CITY OF HUNTSVILLE v. E. P. MILLER et al. |
Smith, Johnston & Butler, Huntsville, for appellant.
Watts, Salmon & Roberts, Huntsville, for appellees.
Complainants, appellees here, filed a bill of complaint in the circuit court of Madison County, in equity, against the City of Huntsville, appellant here, seeking to enjoin, as a nuisance, the collection by said City of surface waters in the vicinity of complainants' lands and depositing such waters on said lands, and also seeking damages to the lands resulting therefrom. In its final decree, after the taking of testimony ore tenus, the trial court denied injunctive relief but awarded damages to complainants. The City appeals from that decree.
At the threshold, we are confronted with a jurisdictional question: Can a court of equity, after denying all equitable relief sought in a cause, retain jurisdiction and grant relief available at law? Our cases hold that it cannot; that it is a matter of jurisdiction which this court must notice even though no issue on the point is made by the parties.
It is thus stated in Yauger v. Taylor, 218 Ala. 235, 238, 118 So. 271, 274:
The rule is stated in Dickinson v. Bradford, 59 Ala. 581, 586, 31 Am.Rep. 23, as follows:
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The rule has been adhered to consistently in an unbroken line of cases. See: McCurdy v. Samples, 262 Ala. 485, 488-489, 80 So.2d 224; Pritchett v. Wade, 261 Ala. 156, 162, 73 So.2d 533; Comer v. Limbaugh, 256 Ala. 655, 660, 57 So.2d 72; Lane v. Roma Lumber Co., 234 Ala. 551, 553, 176 So. 283; McDowell v. Herren, 219 Ala. 370, 371, 122 So. 336; Bromberg v. Eugenotto Construction Co., 158 Ala. 323, 48 So. 60, 19 L.R.A.,N.S., 1175; Wilson's Adm'r v. Holt, 91 Ala. 204, 212, 8 So. 794; Dickinson v. Bradford, 59 Ala. 581, 586, supra; Hause v. Hause, 57 Ala. 262, 266; Pond v. Lockwood, 8 Ala. 669, 677.
In 1 Pomeroy's Equity Jurisprudence, 5th Ed., § 237d, p. 436, the author states:
The fact that the parties have raised no question concerning jurisdiction, either in the trial court or here, and invite the court to consider the case on its merits, is not controlling. Lack of jurisdiction cannot be waived or supplied by consent of the parties. Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364, 70 A.L.R. 712. In that case it was said:
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And it has been said that 'jurisdiction of the subject-matter cannot be conferred upon any court by estoppel, or even by affirmative agreement.' Henderson v. Hall, 134 Ala. 455, 506, 32 So. 840, 852, 63 L.R.A. 673. Cf. Randolph v. Randolph, 245 Ala. 689, 693, 18 So.2d 555. Even though the parties do not raise the issue, the trial court should dismiss the bill at the hearing if a proper case for equitable relief is not made out or transfer the cause to the law side of the court if there is an adequate remedy at law. Code 1940, Tit. 13, § 149.
It is to be noted that there is no cross-assignment of error questioning the trial court's denial of equitable relief. Hence, no question on that score is presented for review.
We must consider, ex mero motu, questions of jurisdiction; and where a judgment appealed from is void for want of jurisdiction we have no alternative but to dismiss the appeal. Alabama Public Service Commission v. McGill, 260 Ala. 361, 362, 71 So.2d 12; Mitchell v. Hammond, 252 Ala. 81, 84, 39 So.2d 582; Craig v. Root, 247 Ala. 479, 484, 25 So.2d 147; Freeman v. Swan, 22 Ala. 106, 115; Carter v. Hinkle, 13 Ala. 529, 533; Wyatt v. Judge, 7 Port. 37, 38-40; 5 C.J.S. Appeal & Error, §§ 1477, 1480, pp. 740, 747. From the early case of Wyatt v. Judge, supra, is the following:
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The trial court having determined that complainants were not entitled to equitable relief it was without jurisdiction to award damages to complainants. Accordingly, the decree appealed from is void and the appeal must be dismissed.
Appeal dismissed.
On Rehearing.
We placed the case on the rehearing docket for the purpose of considering the applicability of the following cases, viz.: Mobile County v. Barnes-Creary Supply Co., 225 Ala. 127, 129, 142 So. 72, and McGowin v. City of Mobile, 241 Ala. 576, 578, 4 So.2d 161.
In those cases it was held that equity had jurisdiction to enjoin a proposed taking of or injury to land without just compensation being first paid therefor as required by § 235, Constitution 1901. The basis for such holding is thus stated in Mobile County v. Barnes-Creary Supply Co., supra [225 Ala. 127, 142 So. 73]:
'The bill is rested upon the theory that the property of complainant is being taken, injured, or destroyed by the proposed improvement of the highway abutting its property, without compensation being first paid therefor, in violation of section 235 of our State Constitution. It is settled by our decisions that the right to compensation for 'injury' to land by the 'construction or enlargement of its works, highways, or improvements' by any corporation (section 235, supra) is placed upon the same basis as the taking thereof, and that the same remedies and the limitations thereto apply to the one as to the other. Birmingham Belt Ry. Co. v. Lockwood, 150 Ala. 610, 43 So. 819.
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There is, however, a material distinction between those cases and the one now before us. Here, the injury to complainants' land had already occurred, thus rendering the stated principle inapposite for that reason, if for no other.
Those cases also hold that 'the equity of the bill being established, a court of equity, if the enforcement of such injunctive relief appears impracticable or unjust, has the power to so mold its decree as to award damages in lieu of such relief.' So, the question is, Does the bill have equity on some other ground? In other words, to state the question more specifically, Is the...
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