Harris v. Mobile Housing Bd.

• Decision Date: 23 January 1958
• Docket Number: 1 Div. 730
• Citation: 267 Ala. 147,100 So.2d 719
• Court: Alabama Supreme Court
• Parties: Mary M. HARRIS v. MOBILE HOUSING BOARD.

Page 719

100 So.2d 719

267 Ala. 147

Mary M. HARRIS v. MOBILE HOUSING BOARD.

1 Div. 730.

Supreme Court of Alabama.

Jan. 23, 1958.

Rehearing Denied March 6, 1958.

John M. Tyson and Samuel M. McMillan, Mobile, for appellant.

Alexander Foreman, Jr. McConnell & Foreman, Mobile, for appellee.

MERRILL, Justice.

Mobile Housing Board filed its petition for condemnation of several tracts of land. The petition showed that the appellant, Mary M. Harris, and 14 other persons owned or claimed to own some right, title or interest in one of the tracts. Appellant was the owner of seven houses located on the tract and the other 14 named defendants were tenants in the houses.

The probate court granted the petition and appointed commissioners; they reported, assessing damages at $8250 in favor of all defendants; the order of condemnation was entered on January 15, 1957; the award was paid into court, and on January 31, 1957, appellant appealed to the circuit court.

Mary M. Harris took the appeal in her own name, but not in the name of the other 14 defendants. On February 17, 1957, appellee filed a motion in circuit court to dismiss the appeal because it was not taken in the name of all of the parties against whom the order of condemnation was rendered. The circuit court dismissed the appeal and Mary M. Harris brings her appeal to this court.

It is obvious that the trial court dismissed the appeal because he relied, as he had a perfect right to do, on the latest pronouncement of this court on the subject in Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920, 926, where we said: '* * * an appeal not affected by that statute (Tit. 7, § 804) must be taken to the circuit court in the name of all the parties against whom a judgment is rendered.' (Emphasis supplied.)

Title 19, § 17, Code 1940, is the only provision of law for appeals from orders of condemnation entered by probate courts, Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854; State ex rel. Wood v. Williams, 125 Ala. 115, 28 So. 401, and it provides:

'Any of the parties may appeal from the order of condemnation to the circuit court of the county within thirty days after the making of the order of condemnation, by filing in the court rendering the judgment, a written notice of appeal, a copy of which shall be served on the opposite party, or his attorney, and on such appeal, the trial shall be de novo, and it shall be necessary to send up the proceedings only as to the parties appearing or against whom an appeal is taken.'

As pointed out in Williams v. Jefferson County, supra [261 Ala. 76, 72 So.2d 925], concerning appeals to this court or the Court of Appeals, 'it was held prior to Code section 804, Title 7, that an appeal had to be taken in the name of all the parties against whom the judgment was rendered. This could be done by one of the defendants, but in the name of all of them.' This was the analogy which was applied to appeals from probate court to circuit court under Tit. 19, § 17, and resulted in the rule of the Williams case which was followed by the trial court.

There are two other cases before this court involving this same question, and after considering all three of them together, we have concluded that the rule of the Williams case that the appeal must be taken to the circuit court in the name of all the parties is too harsh. But we hasten to add that it is permissible, and the better practice, for one party to appeal in the name of all the others alleged to have some interest in the parcel or tract with the party appealing.

Title 19, § 17, supra, permits 'any of the parties' to appeal within thirty days after the making of the order of condemnation and the trial in circuit court 'shall be de novo.' We have held that the requirement of a trial de novo means what it says and means a new trial as if no trial had ever been had, and just as if it had originated in the circuit court. Lipscomb v. Bessemer Board of Education, 258 Ala. 47, 61 So.2d 112.

The taking of one's property under the eminent domain statutes is a serious matter, and any party interested in any tract has the right to appeal to the circuit court in order that a jury may pass on the amount of the award, if any. We do not think the right of appeal should be abridged by holding that an aggrieved party must take the appeal in the name of the other parties interested in the same tract. It is obvious that the amount of the award of damages for one tract cannot be tried piecemeal, part in probate court and part in ...