Lathrop Lumber Co. v. Pioneer Lumber Co.

• Decision Date: 18 May 1922
• Docket Number: 6 Div. 583.
• Citation: 207 Ala. 522,93 So. 427
• Parties: LATHROP LUMBER CO. v. PIONEER LUMBER CO.
• Court: Alabama Supreme Court

93 So. 427

207 Ala. 522

LATHROP LUMBER CO. v. PIONEER LUMBER CO.

6 Div. 583.

Supreme Court of Alabama

May 18, 1922

Appeal from Circuit Court, Pickens County; R.I. Jones, Judge.

Proceeding by the Lathrop Lumber Company against the Pioneer Lumber Company to condemn right of way. After adverse ruling on pleading, petitioner took a nonsuit and appeals. Appeal dismissed.

M. B Curry, of Carrollton, for appellant.

Patton & Patton, of Carrollton, for appellee.

MILLER J.

This proceeding was commenced in the probate court, with the approval of the Alabama Public Service Commission, by petition of the Lathrop Lumber Company, a corporation against the Pioneer Lumber Company, a corporation, for condemnation of a strip of land of the defendant for the use of petitioner for 10 years for a railroad right of way to haul timber or lumber. There was decree of condemnation and assessment of damages by the probate court, and from it the defendant appealed to the circuit court.

The petitioner on November 5, 1920, filed a motion in the circuit court to dismiss the appeal, because it was not taken within the time prescribed by the statute. This motion was on that date refused by the court, and an exception was duly reserved by the petitioner, and demurrers of defendant to the petition were sustained by the court at this term in November, 1920. The petitioner on May 11, 1921, made and filed a written application to amend the petition. The defendant objected to the allowance of the amendment and moved to strike it from the file, because it was an entire departure from the original cause, because the route for the right of way was new and entirely different from the one in the original petition, and for other reasons stated in the objections and motion. The court sustained the objection, refused to allow the amendment, and granted the motion to strike it from the file. The petitioner excepted to these rulings of the court and took a nonsuit on account of them, and on May 30, 1921 appealed from this judgment of the circuit court to this court.

The minutes of the circuit court show the following entry made on May 11, 1921, by the court on the objection to the amendment, the motion to strike it, and the nonsuit:

"This cause coming on to be heard, the plaintiff filed an amendment to the complaint as herein stated, and the defendant thereupon filed objections to the allowance of said amendment, and also a motion to strike the same from the files on the grounds as set forth in said objections and motion; and, the same being understood by the court, it is the judgment of the court that said objections to said amendment and the motion to strike the same be and the same are hereby sustained, and the plaintiff then and there excepted to said ruling of the court, and on

...