Ingram v. Alabama Power Co., 7 Div. 851

CourtSupreme Court of Alabama
Writing for the CourtMAYFIELD, J.
Citation75 So. 304,201 Ala. 13
PartiesINGRAM, Probate Judge, v. ALABAMA POWER CO.
Decision Date05 April 1917
Docket Number7 Div. 851

75 So. 304

201 Ala. 13

INGRAM, Probate Judge,
v.

ALABAMA POWER CO.

7 Div. 851

Supreme Court of Alabama

April 5, 1917


Rehearing Denied May 17, 1917

Appeal from Circuit Court, Clay County; Marion H. Sims, Judge.

Mandamus by the Alabama Power Company against F.J. Ingram, as Judge, etc. From the final order in favor of applicant, the probate judge appeals. Affirmed.

Appellee, on the 29th day of October, 1915, obtained in the probate court of Clay county an order or decree of condemnation of a right of way across the lands of one J.M. Steverson. The proceedings of condemnation were regular on their face, and recited that notice of the proceedings and of the day set for their hearing was by the sheriff duly served upon the owner of the land, J.M. Steverson, on the 13th day of October, 1915; but no appearance was ever entered by Steverson, and the necessary and proper orders of and for condemnation were made by the probate court on the day set, the proceedings culminating in a final order or decree of condemnation confirming the report of the commissioners.

On the 27th day of December, 1915, two months after rendition of this final order or decree, Steverson applied to the probate court to set aside the order of condemnation, because of a false return of the sheriff, alleging that no notice or process was served on him, and that he had had no other notice thereof. This application to set aside the judgment, order, or decree was made under the four months statute (section 5372 of the Code). Notice of this application to set aside the judgment and grant a rehearing was served on appellee. Appellee corporation appeared and demurred to the petition or application, assigning various grounds, among which were these: That the court was without jurisdiction or power to award the relief prayed, and that the petition or application did not state facts sufficient to warrant the relief asked, even had the court such jurisdiction; the demurrer particularly pointing out the defects or insufficiencies of the petition or application.

The probate court overruled the demurrer, and on the 15th day of January, 1916, set aside the order or decree of condemnation, and awarded a rehearing or new trial. Appellee thereupon applied to the circuit court of Clay county for a writ of mandamus compelling the probate judge of Clay county to annul his order setting aside the order or decree of condemnation and granting a rehearing or new trial. The probate judge appeared on the order of the circuit court, to show cause, etc., and a hearing was had, and the mandamus made final, commanding the probate judge to annul his former order granting a rehearing under the four months statute; and from this final order the probate judge prosecutes this appeal.

Riddle & Riddle, of Talladega, for appellant.

Knox, Acker, Dixon & Stewart, of Talladega, for appellee.

MAYFIELD, J.

It has been definitely settled by this court that the proper and appropriate practice is to appeal from orders, judgments, or decrees which deny or refuse applications for rehearing made under the four months statute, because such order or judgment is final, disposing of the application and the judgment sought to be set aside; but, if the application to set aside the judgment and grant a rehearing is erroneously made, the order is not final, because it does not dispose of the case, but restores it to the [75 So. 306] docket for a new trial. In such case there is no judgment to support an appeal, and hence errors (if such have intervened) could not be reviewed or corrected on appeal. This being true, the proper and appropriate practice and remedy is by mandamus to compel annulment of improper orders, and restoration of the judgment or decree erroneously set aside, thus preventing a rehearing or new trial. Ex parte North, 49 Ala. 385; Ex parte O'Neal, 72 Ala. 560; O'Neal v. Kelly, 72 Ala. 559; Heflin v. Rock Mills, 58 Ala. 613; Chastain v. Armstrong, 85 Ala. 217, 3 So. 788; Seymour v. Farquhar, 95 Ala. 528, 10 So. 650; Brazel v. New South Coal Co., 131 Ala. 418, 30 So. 832.

The section of the Code under which the probate judge acted in setting aside the judgment of condemnation and awarding a rehearing, otherwise known as the "four months statute," reads as follows:

"5372. *** When a party has been prevented from making his
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38 practice notes
  • Ex parte Jackson, 8 Div. 676
    • United States
    • Supreme Court of Alabama
    • March 19, 1925
    ...will not be granted for the mere purpose of a review. Southern Ry. Co. v. Walker, 132 Ala. 62, 31 So. 487; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Johnson v. Westinghouse, etc., Co., 209 Ala. 672, 96 So. 884; Ex parte Seals Piano Co., 190 Ala. 641, 67 So. 240; Ex parte Smith, ......
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...§ 9521) has been expressly declared to be cumulative and concurrent, and not exclusive of equity jurisdictions. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Harris v. Harris, 208 Ala. 20, 93 So. 841. And the statute, section 9518 of the Code......
  • Cantwell v. Cantwell, No. 29305
    • United States
    • Indiana Supreme Court of Indiana
    • June 17, 1957
    ...7 Cir., 1896, 74 F. 23, 20 C.C.A. 274; Prudential Casualty Co. v. Kerr, 1918, 202 Ala. 259, 80 So. 97; Ingram v. Alabama Power Co., 1917; 201 Ala. 13, 75 So. 304; McDonald v. Cawhorn, 1907, 152 Ala. 357, 44 So. 395; Dunklin v. Wilson, 1879, 64 Ala. 162; Secor & Brooks v. Woodward, 1845,......
  • Stover v. Hill, 8 Div. 394.
    • United States
    • Alabama Supreme Court
    • October 26, 1922
    ...the court of date November 29, 1920? The four-month statute (Code, § 5372) has no application to equity cases. Ingram v. Ala. Power Co., 201 Ala. 13, 15, 75 So. 304; Sharp v. Edwards, 203 Ala. 205, 82 So. 455. The term of court at which the final decree dismissed the bill had adjourned by o......
  • Request a trial to view additional results
38 cases
  • Ex parte Jackson, 8 Div. 676
    • United States
    • Supreme Court of Alabama
    • March 19, 1925
    ...will not be granted for the mere purpose of a review. Southern Ry. Co. v. Walker, 132 Ala. 62, 31 So. 487; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Johnson v. Westinghouse, etc., Co., 209 Ala. 672, 96 So. 884; Ex parte Seals Piano Co., 190 Ala. 641, 67 So. 240; Ex parte Smith, ......
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...§ 9521) has been expressly declared to be cumulative and concurrent, and not exclusive of equity jurisdictions. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Harris v. Harris, 208 Ala. 20, 93 So. 841. And the statute, section 9518 of the Code......
  • Cantwell v. Cantwell, No. 29305
    • United States
    • Indiana Supreme Court of Indiana
    • June 17, 1957
    ...7 Cir., 1896, 74 F. 23, 20 C.C.A. 274; Prudential Casualty Co. v. Kerr, 1918, 202 Ala. 259, 80 So. 97; Ingram v. Alabama Power Co., 1917; 201 Ala. 13, 75 So. 304; McDonald v. Cawhorn, 1907, 152 Ala. 357, 44 So. 395; Dunklin v. Wilson, 1879, 64 Ala. 162; Secor & Brooks v. Woodward, 1845, 8 A......
  • Stover v. Hill, 8 Div. 394.
    • United States
    • Alabama Supreme Court
    • October 26, 1922
    ...the court of date November 29, 1920? The four-month statute (Code, § 5372) has no application to equity cases. Ingram v. Ala. Power Co., 201 Ala. 13, 15, 75 So. 304; Sharp v. Edwards, 203 Ala. 205, 82 So. 455. The term of court at which the final decree dismissed the bill had adjourned by o......
  • Request a trial to view additional results

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