Lewis v. Head

• Decision Date: 15 June 1939
• Docket Number: 7 Div. 581.
• Citation: 238 Ala. 151,189 So. 886
• Parties: LEWIS v. HEAD ET AL.
• Court: Alabama Supreme Court

189 So. 886

238 Ala. 151

LEWIS v. HEAD ET AL.

7 Div. 581.

Supreme Court of Alabama

June 15, 1939

Appeal from Circuit Court, Shelby County; W. W. Wallace, Judge.

Motion by Ivey F. Lewis for summary judgment against Cage Head former Probate Judge of Shelby County, and the Fidelity &amp Deposit Company of Maryland, for the amount paid by movant to redeem land sold for taxes.From a judgment of nonsuit plaintiff appeals.Transferred from Court of Appeals under Code 1923, § 7326.

Appeal dismissed.

M. B Grace, of Birmingham, for appellant.

Leader, Hill, Tenenbaum & Seedman, of Birmingham, for appellees.

GARDNER Justice.

Appellant moved for a summary judgment against defendant Head, former judge of probate of Shelby County, and the Fidelity and Deposit Company, as surety on his official bond (section 10226 et seq., Code of 1923), to recover the sum of $574.69, which he had paid to said Head as judge of probate for the redemption of land sold for taxes, and bought in by the State.Sections 3110and3115, Code of 1923.The motion for summary judgment is based upon the theory that although the proper amount was paid Head, as judge of probate, he went out of office without issuing to movant a certificate of redemption, as required by law, and failed to pay over the sum to his successor or to the State.

The cause was submitted upon motion and merits, the motion being one to dismiss the appeal upon the ground that a moot question only is presented.The motion to dismiss discloses that in a suit by the State against said Head and the surety on his bond, and the party to this proceeding, a judgment was recovered for a large sum of money, including the very sum here involved: that the judgment was paid by this surety, and the money paid by movant properly distributed by the State; and that following this payment the present judge of probate of Shelby County(Hon. L. C. Walker) issued to movant, prior to the perfection of the present appeal, a certificate of redemption.In short, the motion shows that this appellant, before perfecting his appeal, received a proper certificate of redemption, which formed the subject matter of his motion for a summary judgment, and no matter of delay in its issuance has in any manner affected his rights in regard thereto.Roach v. State,148 Ala. 419, 420, 39 So. 685.The cause was submitted on this motion to dismiss along with a submission on the merits, and there is no denial of the truth of its averments.

Upon submission of this cause on appeal, therefore, there was no actual controversy existing between the parties, movant having received that to which he was entitled and which formed the subject matter of his motion.

It is the general rule that appellate courts do not sit to give opinions on moot questions or abstract propositions(4 Corpus Juris Secundum, Appeal and Error, § 1354), a principle often given recognition and application by th...