Lipscomb v. Bessemer Bd. of Ed., 6 Div. 310
| Court | Supreme Court of Alabama |
| Citation | 258 Ala. 47,61 So.2d 112 |
| Docket Number | 6 Div. 310 |
| Parties | LIPSCOMB et al. v. BESSEMER BOARD OF EDUCATION. |
| Decision Date | 23 October 1952 |
Page 112
v.
BESSEMER BOARD OF EDUCATION.
[258 Ala. 48]
Page 113
Geo. H. Bumgardner, H. P. Lipscomb, Jr., and L. Herbert Etheridge, all of Bessemer, for appellants.Edw. L. Ball, Bessemer, for appellee.
[258 Ala. 49] GOODWYN, Justice.
This is a condemnation proceeding by the Bessemer Board of Education to acquire lots 1 through 8, inclusive, of Block 125, according to the present plan and survey of the City of Bessemer. The original application was filed in the Probate Court of Jefferson County, where the proceedings were conducted under the provisions of Code 1940, Tit. 19, Chapter 1. The Board of Education, the condemnor, appealed to the circuit court, where a jury awarded compensation to appellants, the landowners, and the court, pursuant to such award, entered its judgment. The contents of the judgment, and its amendment nunc pro tunc, are as we shall see, the predicate for several of the assignments of error. It is from that judgment that the landowners took this appeal. After the appeal was taken, but before submission to the Supreme Court, the appellee Board of Education filed its motion in the circuit court to amend the judgment nunc pro tunc. This motion was granted, and the amended judgment is now a part of the record on appeal.
The original application, as filed in the probate court, contained these averments: 'that your petitioner has adopted a resolution declaring that the acquisition of the property hereinafter described is in the public interest and necessary for the public use, a copy of which resolution is attached hereto and made a part hereof the same as if it were herein fully set forth'; 'and petitioner avers that said property is to be used for the site of a new school building or for a school playground, or for other public purpose of [or] public school purpose'. The resolution, attached as an exhibit, and made a part of the application, provided that this property was 'to be condemned for public use and public purposes, to wit, for use as a site for new school house or other public purpose'.
On appeal to the circuit court the defendants refiled their motion to dismiss the application. This motion was overruled. They then refiled demurrers to the application, which were sustained. Thereupon the Board of Education amended its application by deleting therefrom any reference to the resolution, and by averring that acquisition of the property 'is in the public school interest and is necessary for public school use, viz.: for the site of a school house and school yard and playground adjacent thereto,' and that 'it is necessary to acquire said property for the purpose of locating and conducting thereon an elementary-junior high school, an addition to the public school system facilities of the City of Bessemer, Alabama, together with the necessary school lots and school playgrounds necessary for the operation of the said elementary-junior high school, and for no other purpose'.
The defendants then filed, seriatim, a motion to dismiss the amended application and demurrers and an answer to it.
[258 Ala. 50] The burden of all of the defendants' pleadings is concisely stated in their brief, as follows:
[The Board of Education] 'persisted in attempting to condemn defendants' property for other public purposes, other than public school purposes, and that they had no such authority, * * *. All the authority vested in said Board to condemn property being contained in section 168, of Title 52, 1940 Code of Alabama; and if by amendment they changed their proceedings so as to only seek condemnation for public school purposes, then this was certainly a departure made after having run the gauntlet in the Probate Court, and started proceedings with the same view
Page 114
and purpose in the Circuit Court, and demurrers should have been sustained to said amendment.'Section 168, Tit. 52, Code 1940, is as follows:
'When lands or any interest therein shall be by the board of education deemed necessary for the site of a schoolhouse or for enlarging a schoolhouse lot, or for playgrounds or other public school purposes, and the board of education for any reason shall be unable to contract with the owner or owners for the title thereof the said board of education may institute condemnation proceedings to acquire such lands or the interest therein. Said condemnation proceedings shall be in all respects conducted and regulated as provided by chapter 1 of title 19.'
Before proceeding further, it might be well to note several procedural rules peculiarly applicable here. In the first place, the trial in the circuit court is de novo. Code 1940, Tit. 19, sect. 17; Alabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 9 A.L.R.2d 974; Housing Authority of Phenix City v. Stillwell, 241 Ala. 420, 423, 3 So.2d 55; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305. Section 17, supra, provides that, 'on such appeal, the trial shall be do novo'. Mr. Justice Bouldin, in the opinion in the Stillwell case, supra [241 Ala. 420, 3 So.2d 58], wrote: 'This means what it says.' 'A trial de novo means a new trial 'as if no trial had ever been had, and just as if it had originated in the circuit court.'' Thompson v. City of Birmingham, 217 Ala. 491, 492, 117 So. 406, 407; Louisville & Nashville R. R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733. The case stands in the circuit court 'on the process and pleadings, without judicial action upon them, precisely as it would have stood at that stage of the proceedings, if the case had been instituted in that court in the first instance.' Lehman, Durr & Co. v. Hudmon Bros., 79 Ala. 532, 534. The trial is had in the circuit court 'so far as regards the issues that can arise between the parties, just as a new trial would be had in the latter court when a previous verdict and judgment in a case originating in that court had been set aside by the court itself on motion...
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Ex parte Biddle, 8 Div. 661
...to review the judgment of June 13, 1952, was referred to in our recent case of Lipscomb v. Bessemer Board of Education, Ala.Sup., 61 So.2d 112, where the authorities are It is not too late for an appeal to be taken from the judgment of June 13, 1952. But the present record in that respect c......
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...by bill of exceptions, or in some appropriate manner, that such recital is untrue.' The case of Lipscomb v. Bessemer Board of Education, 258 Ala. 47, 61 So.2d 112, decided in 1952, is to the same effect. Of course the converse is true, i. e., unless the records do affirmatively show either ......
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