Mayfield v. Court of County Com'rs of Tuscaloosa County

• Decision Date: 17 May 1906
• Parties: MAYFIELD ET AL. v. COURT OF COUNTY COM'RS OF TUSCALOOSA COUNTY.
• Court: Alabama Supreme Court

41 So. 932

148 Ala. 548

MAYFIELD ET AL. v. COURT OF COUNTY COM'RS OF TUSCALOOSA COUNTY.

Supreme Court of Alabama

May 17, 1906

Rehearing Denied July 6, 1906.

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

"To be officially reported."

Certiorari by J. W. Mayfield and others against the court of county commissioners of Tuscaloosa county. From an adverse judgment petitioners appeal. Affirmed.

C. B Vernon, for appellants.

Robinson Brown, for appellee.

DENSON J.

This is a proceeding by common-law certiorari, commenced by the appellants, J. W. Mayfield and others, for the purpose of reviewing and having quashed an order made by the court of county commissioners of Tuscaloosa county establishing a stock law district in said county. On the first hearing in the Tuscaloosa county court, Hon. Henry B. Foster, judge presiding, it was adjudged on the 24th day of January, 1906 that the petitioners were not entitled to the relief prayed for, and the petition for certiorari was dismissed, at the costs of the petitioners. On the 6th day of February, 1906, was filed with the clerk of the Tuscaloosa county court a paper in these words and figures:

"J. W. Mayfield et al. v. Commissioners' Court et al. County Court. I hereby acknowledge myself security for costs in the appeal of the above-entitled cause to the Supreme Court. Feby. 2nd, 1906. C. N. Verner.

"Approved Feby. 6th, 1906. B. B. Cooper, Clerk.

"Filed in office 6th day of Feby., 1906. B. B. Cooper, Clerk."

No other security for costs was given. Motion is made here by the appellees to dismiss the appeal on the several grounds set out in the motion.

The principal ground in the motion is that "appeals in proceedings of this character cannot be taken by having the security for costs approved by the clerk, but security for costs must be approved by the judge trying the cause, and that within thirty days from the judgment." This ground of the motion and the argument in support of it are predicated on section 431 of the Code of 1896, which provides: "Appeals may be taken to the Supreme Court from the judgment of judges of the circuit and city courts on applications for writs of certiorari, supersedeas, quo warranto, mandamus and other remedial writs, upon plaintiff or defendant giving security for the costs of appeal, approved by the judge trying the same, within thirty days from the day of the judgment." Section 2827 of the Code of 1896 provides: "From the final judgment of any circuit court or other court exercising the jurisdiction of such court, in any such proceeding (mandamus, prohibition, certiorari and other remedial writs of a supervisory nature), an appeal shall lie to the Supreme Court as in other cases; but such appeal must be taken within thirty days after the final judgment is rendered." In the case of Ex parte Campbell, 130 Ala. 171, 30 So. 385, it is held that an appeal will lie under section 431 of the Code of 1896 from an order of a judge either denying or granting a rule nisi in proceedings of the kind we have in hand. This ruling gives a field of operation for both statutes set out above. When the appeal is from the judgment of the judge awarding or denying the rule nisi, the appeal must be taken under section 431, and in that event the security for costs must be approved by the judge. But when the appeal is from the final judgment of the court, as is the case here, the appeal must be governed by section 2827 and the security for costs must be approved by the clerk of the court.

But it is insisted by appellees that the paper purporting to be security for costs is insufficient, because the names of the appellants do not appear on it and it does not purport to create any liability on them. No supersedeas was asked for, and, when security for costs merely is given, it is only necessary that the surety should acknowledge himself as such for the costs of the appeal in the particular case. Spencer v. Thompson, 24 Ala. 512; Crump v. Wallace, 27 Ala. 277; Satterwhite's Case, 28 Ala. 65; Marshall v. Croom, 50 Ala. 479. It follows that the motion to dismiss the appeal is not well made, and it is overruled.

The Legislature in 1895 passed an act authorizing the commissioners' court of Tuscaloosa county to establish districts in which stock may be prevented from running at large. Acts 1894-95, p. 749. Section 2 of the act provides that: "Whenever any ten freeholders petition said court in writing stating that they desire an order to be made establishing a district wherein stock may not be allowed to run at large, fully describing such district, and stating that petitioners reside in such district, that said petition must be filed with the probate judge of said county at least thirty days before the next term of the commissioners' court and said probate judge must cause a notice of said application to be posted at the office of said judge, and copies of said notice to be posted in three public places in the district described in the application or petition, and if a newspaper is published in said county, at least one notice of the said publication shall be given in such paper of the day of hearing such application." It is conceded by the appellants that the petition filed with the probate judge in this instance to establish the stock law district in beat 20 conformed to the requirements of the act in its allegations.

But it is insisted that the order made by the commissioners' court is void on its face. If this insistence is well made then certiorari is the proper remedy, no other remedy being provided...