City of Dothan v. Holloway

• Decision Date: 25 July 1986
• Citation: 501 So. 2d 1136
• Parties: Ex parte City of Dothan, Alabama. (Re CITY OF DOTHAN, Alabama v. Betty Ruth HOLLOWAY). 84-1316.
• Court: Alabama Supreme Court

Page 1136

501 So.2d 1136

Ex parte City of Dothan, Alabama (Re CITY OF DOTHAN, Alabama v.Betty Ruth HOLLOWAY).

84-1316.

Supreme Court of Alabama.

July 25, 1986.

Rehearing Denied Sept. 12, 1986.

Rehearing Denied Oct. 10, 1986.

William M. Jackson, Dothan, for petitioner.

Fred M. Tatum, Jr., Dothan, for respondent.

J. Wilson Dinsmore, Larry Waites, and M. Wayne Wheeler, Birmingham, amici curiae for Peggy Haynes and Erick Hayes and members of the class they represent in support of Betty Ruth Holloway.

J. Doyle Fuller, Montgomery and George Beck of Baxley, Beck, Dillard & Dauphin, Montgomery, amici curiae for James Clyde Brown and the class he represents in Montgomery Circuit Court in support of Betty Ruth Holloway.

Charles A. Graddick, Atty. Gen., and Jack M. Curtis and Leura J. Garrett, Asst. Attys.Gen., amici curiae for State of Ala.

Sam LeMaistre, Jr., President and Chairman of the Executive Committee, and Joseph M. Carlton, Jr., Executive Director of the Alabama Dist. Attys.'Ass'n, amicu curiae in support of City of Dothan.

Drayton Hamilton, Montgomery, amicus curiae Ala. League of Municipalities in support of City of Dothan.

TORBERT, Chief Justice.

Betty Ruth Holloway was arrested and charged with driving under the influence, on March 5, 1984, pursuant to an Alabama Uniform Traffic Ticket and Complaint (hereinafter "UTTC" or "ticket").Holloway pleaded guilty and paid a fine of $500 plus court costs.On May 7, 1984, Holloway was arrested and charged with "driving while license or privilege suspended," the charge being pursuant to a UTTC.She also pleaded guilty to this offense and paid a fine.Although each of these tickets was signed by the arresting officer, neither ticket was sworn to and acknowledged before a judge or magistrate.

Following this Court's decision in Ex parte Dison, 469 So.2d 662(Ala.1984), Holloway filed the present proceeding in the Circuit Court of Houston County.In this action, Holloway sought to have the two convictions set aside and vacated and sought a refund of the fines she had paid.The trial court granted the relief sought, and the Court of Criminal Appeals summarily denied the City of Dothan's petition for a writ of mandamus, based on Dison, supra, and Ex parte McCurley, 412 So.2d 1236(Ala.1982).We granted the City of Dothan's writ of certiorari in order to determine whether the holding in Dison should be applied retroactively.

The parties, and numerous amici curiae, have provided the Court with exceptional briefs on both the question of whether Dison should be applied retroactively and the issue presented in Dison itself.This case has therefore given the Court an excellent opportunity to re-examine the numerous opinions issued by this Court and our former Court of Appeals on the issue decided in Dison.Having conducted that re-examination, we have come to the conclusion that the Dison case was incorrectly decided.

In Dison, this Court reversed the defendant's conviction for driving under the influence because the ticket issued to the defendant had not been verified before a judicial officer.The opinion in Dison concluded that this lack of verification of the ticket prevented the district court, and subsequently the circuit court on appeal, from obtaining subject matter jurisdiction, and thus, that the defendant's conviction was void.469 So.2d at 664.There are, however, numerous cases decided prior to Dison that reflect the position that the lack of verification of the ticket would only affect the trial court's ability to obtain jurisdiction over the person and not its ability to obtain jurisdiction of the subject matter.In that respect, the failure to have the ticket verified is a defect that could be waived by the defendant by proceeding to trial in the district or municipal court without objecting to the defect at that time.

In Woolf v. McGaugh, 175 Ala. 299, 57 So. 754(1911), this Court set forth the two elements that are necessary for a trial court to obtain proper jurisdiction to try a case.The Court differentiated the two elements by making the following statements:

"Jurisdiction in personal actions depends upon two elements: The subject-matter to be adjudged; the presence in court of the parties whose rights are to be affected by the judgment.In respect of subject-matter, the court acquires jurisdiction by the act of its creation; it is inherent in the constitution of the court.The other element it acquires by its own act, by its process properly issued and served, or by voluntary appearance of the defendant."

175 Ala. at 303, 57 So. at 755.

See also, Goulden v. State, 292 Ala. 704, 705, 299 So.2d 325, 326(1975)(citing Woolf, the Court held that the trial court had jurisdiction of the subject matter, i.e., the crime, even though the grand jury foreman had not endorsed the indictment as a "true bill");Sherrod v. State, 197 Ala. 286, 288, 72 So. 540, 541(1916)(citing Woolf, this Court held that where a trial court has jurisdiction of the subject matter, "the jurisdiction of the person could be acquired only by service of its process, or a voluntary appearance of the defendant").The statement made by this Court in Woolf dictates the conclusion that a court obtains jurisdiction of the subject matter by law and not from any action of the court itself.Since that is so, the district court in Dison properly obtained jurisdiction of the subject matter, i.e., the traffic offense of DUI, pursuant to Code 1975, § 12-12-51("District court jurisdiction of misdemeanor prosecutions for traffic infractions").Therefore, the fact that the ticket in the Dison case was not verified would not affect the district court's jurisdiction of the subject matter.Instead, the lack of verification would more directly affect the question of whether the court had obtained personal jurisdiction of the defendant.

This interpretation of jurisdiction, as it relates to the issue presented in Dison, is consistent with the view expressed in a number of decisions issued by this Court and the Court of Appeals.Over a century ago, in City of Selma v. Stewart, 67 Ala. 338, 340(1880), this Court held that a defendant had waived the right to challenge any defects in an affidavit unless he objected to them in the trial court.See also, Blankenshire v. State, 70 Ala. 10, 11(1881).In the case of Wells v. State, 245 Ala. 510, 17 So.2d 878(1944), the defendant's attorney argued that an "[a]ffidavit and warrant of arrest [which are] not on oath ... [are] void...."The affidavit stated that the affiant appeared before a certain person, but the affidavit was sworn to and subscribed by another person.This Court affirmed the defendant's conviction and stated that "[o]bjections to the affidavit are not available when raised for the first time on appeal."245 Ala. at 511, 17 So.2d at 878.

A similar line of cases has held that, where a defendant has proceeded to trial in an inferior court without demanding a written complaint of the accusation against him, then that defect in the proceedings is deemed to have been waived.In the case of Aderhold v. City of Anniston, 99 Ala. 521, 12 So. 472(1892), the defendant was arrested without any affidavit being made or an arrest warrant being issued.In the recorder's court(the inferior trial court), the defendant pleaded not guilty, was tried, and was convicted.On appeal to the city court, the defendant argued for the first time that because the prosecution was begun without an affidavit or warrant he could not be tried for the offense.This Court held that, "not having raised those objections in the Recorder's Court, but having there voluntarily appeared to answer the charge, and having pleaded and gone to trial, the defendant waived them...."99 Ala. at 523, 12 So. at 472.Accord, City of Birmingham v. O'Hearn, 149 Ala. 307, 309-10, 42 So. 836, 836-37(1906);Brooks v. City of Birmingham, 31 Ala.App. 579, 581-82, 20 So.2d 115, 116-17(1944).

This is also one of the rationales underlying the decisions of this Court in Ex parte Hood, 404 So.2d 717(Ala.1981), andEx parte Holden, 407 So.2d 182(Ala.1981).One of the cases cited in, and relied on by, Hood was the case of Chaney v. City of Birmingham, 246 Ala. 147, 21 So.2d 263(1944).In Chaney, this Court was requested to answer two questions certified to it by the Court of Appeals.One of the questions was on the subject of what was required to invoke the jurisdiction of the next higher court on an appeal from an inferior court.In responding to that question, the Court stated the following:

"[T]hat an accused was arrested and tried in such court without a written complaint (affidavit) does not render the judgment there entered void for want of jurisdiction.[Citations omitted.]This for the reason that he may waive the right.[Citation omitted.]

"If the defendant proceed to trial in such court without demanding such complaint he is held to have waived the right and, later on appeal, he cannot for the first time avail of it.[Citations omitted.]

"In order to abate the proceedings in the appellate court because of the lack of an affidavit before the recorder the transcript must affirmatively show that objection to trial without one was seasonably interposed when accused was arraigned and tried in the recorder's court."

246 Ala. at 151, 21 So.2d at 267-68.

See also, McKinstry v. City of Tuscaloosa, 172 Ala. 344, 347, 54 So. 629, 630(1910)(this Court held that a defendant is deemed to have waived his right to a written complaint setting forth the accusation against him if he does not demand such a complaint before the trial).Accord, Williams v. City of Birmingham, 41 Ala.App. 208, 211, 133 So.2d 713, 716-17(1961).

There are several other opinions issued by the Court of Appeals worth mentioning that support the proposition that the lack of verification of the ticket does not affect a trial court's obtaining jurisdiction of the subject matter.The opinion of the Court of...