Kidd v. Burke
| Decision Date | 09 February 1905 |
| Citation | 142 Ala. 625,38 So. 241 |
| Parties | KIDD v. BURKE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; Terry Richardson, Judge.
Action by M. Burke against Louisa V. Kidd, as executrix of the will of H. B. Tulane, deceased. From a judgment for plaintiff, defendant appeals. Dismissed.
Gunter & Gunter and F. W. Lull, for appellant.
The judgment from which this appeal is prosecuted was rendered by the circuit court of Elmore county on the 7th day of March, 1904. The record discloses that the court convened on the first Monday in March, it being the 7th day of said month. This was the time fixed by the act creating the Fifteenth Judicial Circuit, and the act known as the "Lusk Bill" (Gen. Acts 1905, pp. 488, 566). Both of these acts have been recently declared to be unconstitutional. Board of Revenue of Jefferson County v. Crow (Ala.) 37 So. 469; State ex rel. v. Sayre (in MS.) 39 So. 240. The result of these decisions is that the county of Elmore was never legally detached from the counties composing the Fifth Judicial Circuit, and that it has all along remained in that circuit. So, then, the time fixed for the convening of the spring term of the circuit court in that county was and is on the 8th Monday after the fourth Monday in February, which in the year 1904 was Monday, the 18th day of April.
We have here, then, a judgment rendered at a time not appointed by law for the holding of the court. When this is the case, the judgment is void for want of jurisdiction. Ex parte Branch, 63 Ala. 383; Davis v. State, 46 Ala. 80, and cases there cited; Johnson v. State, 37 So. 421; Walker v. State, 139 Ala. 56, 35 So. 1011. It is true, in Lewis v. The Intendant and Town Council of Gainsville, 7 Ala. 85, it was, in effect, said that such judgments were not void, and therefore could not be attacked collaterally; but in Wightman v. Karsner, 20 Ala. 455, it was pointed out that this was dictum, and was there repudiated.
Appeal dismissed.
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Polytinsky v. Johnston
... ... taken therefrom will be dismissed. Patton v. State, ... 160 Ala. 111, 49 So. 809; Kidd v. Burke, 142 Ala ... 625, 38 So. 241; Pickens v. Clark, 203 Ala. 544, 84 ... So. 738; Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So ... ...
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Cobbs v. Norville, 1 Div. 758.
... ... Union Bank & Trust Co., 173 Ala. 332, 56 So. 123; ... Louisville & Nashville Railroad Co. v. Grant, 153 ... Ala. 112, 45 So. 226; Kidd v. Burke, 142 Ala. 625, ... 38 So. 241; Shamblin v. Hall, 123 Ala. 541, 26 So ... 285; Patton v. State, 160 Ala. 111, 49 So. 809; ... ...
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Montgomery Traction Co. v. Knabe
...entered on July 6, 1907 (that appealed from), is void, and will not support an appeal. Therefore the appeal must be dismissed. Kidd v. Burke, supra. dismissed. TYSON, C.J., and HARALSON and SIMPSON, JJ., concur. On Rehearing. The original opinion in support of the order dismissing the appea......
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Brookhaven Lumber & Mfg. Co. v. Adams
... ... 248. Patton v. State, 49 So ... 809, (Ala.) held that a conviction before a court held at an ... unauthorized place, is void. See also Kidd v. Burke, ... 38 So. 241; Arbour v. Yazoo & Mississippi Valley Railroad ... Co., 98 Miss. 714; McLeod Lumber Company v ... Steverson, 81 So. 788; ... ...