Belding v. State

• Decision Date: 14 January 1926
• Docket Number: 6 Div. 470
• Citation: 214 Ala. 380,107 So. 853
• Parties: BELDING v. STATE ex rel. DAVIS, Sol.
• Court: Alabama Supreme Court

107 So. 853

214 Ala. 380

BELDING v. STATE ex rel. DAVIS, Sol.

6 Div. 470

Supreme Court of Alabama

January 14, 1926

Rehearing Denied April 8, 1926

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Quo warranto by the State of Alabama, on the relation of Jim Davis, Solicitor, against J.C. Belding. From the judgment respondent appeals. Affirmed.

J.S McLendon, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Jim Davis, Sol., and F.M. Dixon Asst. Sol., both of Birmingham, for appellee.

SOMERVILLE J.

Information in the nature of quo warranto is a civil proceeding, and is not governed by the rules and principles applicable to prosecutions for the conviction of crime. Taliaferro v Lee, 13 So. 125, 97 Ala. 92, 98; Ames v. Kansas, 4 S.Ct. 437, 111 U.S. 449, 28 L.Ed. 482; 32 Cyc. 1414, 2. The fact that the inquiry involves the ascertainment of conduct on the part of the respondent which is punishable as a criminal offense in a proper criminal proceeding does not change the civil character of the information, which looks to civil consequences only.

The proceeding in this case is authorized by subdivision 1 of section 9932, Code of 1923. Robinson v. State ex rel. James, 102 So. 693, 212 Ala. 459. Our statutory system of quo warranto is coextensive in scope with the common-law information in the nature of quo warranto, and as to practice and procedure is exclusive of the common law which it has supplanted. State ex rel. Weatherly v. B'ham Waterworks Co., 64 So. 23, 185 Ala. 388, 401, Ann.Cas.1916B, 166. As to its civil character the statutory proceeding does not differ from the proceeding at common law.

The rule in civil cases is that the benefit of venue statutes may be waived by the defendant, and is waived by his failure to plead to the venue seasonably in the trial court. Woolf v. McGaugh, 57 So. 754, 175 Ala. 299, 307; Cleveland v. Little Cahaba Coal Co., 87 So. 567, 205 Ala. 369.

In so far as the case at bar is concerned, it will suffice to quote what this court has said of venue in its relation to territorial divisions of Jefferson county for the holding of probate courts, the principle being the same as for the circuit court:

"The act noted did not effect or intend the creation of two probate courts in Jefferson county. The act's effect was to assign the venue--not the jurisdiction over a subject-matter within the competency of such courts--of matters arising in a defined area to judicial cognizance at Bessemer, thereby establishing at Bessemer a mere branch, department, or division of the single unit, the probate court of Jefferson county. *** If the appellant desired to save, and not waive, the objection to the power of the probate judge or court to decide the matter at Birmingham, the county seat, instead of at Bessemer, it should have been reserved in the lower court." Hines v. Hines, 84 So. 712, 203 Ala. 633.

So, also, as to the act of 1919 (Local Acts 1919, p. 62) creating the Bessemer division of the Tenth judicial circuit. It does not affect the general jurisdiction of subject-matter vested in the Birmingham judges of the circuit, but operates only upon the venue of actions within the circuit.

Hence the...