McCoy v. Garren
| Decision Date | 04 June 1980 |
| Citation | 384 So.2d 1113 |
| Parties | Charles L. McCOY and wife, Marlene Walker McCoy v. John David GARREN and wife, Barbara Ann Garren. Civ. 2277. |
| Court | Alabama Court of Civil Appeals |
Thomas L. Rountree, Oneonta, for appellants.
Bishop K. Walker, Jr., of Nash & Walker, Oneonta, for appellees.
Charles L. McCoy and wife, Marlene Walker McCoy, defendants below, appeal from an order of the circuit court dismissing their appeal from a probate court condemnation order. We affirm.
John David Garren and wife, Barbara Ann Garren, plaintiffs below, filed an application for condemnation of certain lands allegedly owned by defendants for a private right-of-way in the Probate Court of Blount County on February 7, 1978. After a hearing the probate court granted plaintiffs' petition for condemnation on September 22, 1978. On October 20, 1978 the probate court appointed three commissioners to assess the damages and compensation due defendants for the lands taken from them. The commissioners' first report was rejected by the probate court, but their second report was filed in and accepted by the probate court on October 28, 1978.
On November 8, 1978 defendants filed notice of appeal to the Circuit Court of Blount County. However, the probate court did not issue its order of condemnation based on the commissioners' report until November 27, 1978.
On January 8, 1980 plaintiffs filed a motion in the circuit court asking that defendants' appeal be dismissed. On February 1, 1980 the circuit court dismissed the appeal on the ground that it had been prematurely filed in that court. On February 5, 1980 defendants asked for relief from judgment or, in the alternative, a reconsideration of its order. The circuit court denied the motion on March 11, 1980 on the ground that the appeal had not been perfected according to law and the court therefore was without jurisdiction to consider the merits of the appeal.
The dispositive issue is whether the circuit court properly dismissed defendants' appeal from the probate court.
Section 18-1-11, Code of Alabama 1975, provides:
On the day appointed, or any other day to which the hearing may be continued, the court must hear the allegations of the application, any objections which may be filed to the granting thereof and any legal evidence touching the same and shall make an order granting or refusing the application.
Section 18-1-19, Code of Alabama 1975, provides in pertinent part:
The commissioners must, within 20 days from their appointment, make a report in writing to the court stating the amount of damages and compensation ascertained and assessed by them . . . and thereupon the court must order the same to be recorded and must make orders of condemnation in pursuance thereof . . ..
Section 18-1-20, Code of Alabama 1975, provides in pertinent part:
Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days after the making of the order of condemnation by filing in the court rendering the judgment a written notice of appeal . . ..
Defendants argue that the September 22, 1978 probate court order was the proper order to trigger the running of the statutory period for taking an appeal to the circuit court. The plaintiffs counter by saying the November 27, 1978 order was the proper order from which to appeal to the circuit court, not the September 22, 1978 order.
Appeals are of statutory origin, and,...
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Williams v. Williams
...v. Barnes, 250 Ala. 292, 34 So.2d 144 (1948).'" Miles v. State, 822 So.2d 468, 469 (Ala.Crim.App.2000) (quoting McCoy v. Garren, 384 So.2d 1113, 1114 (Ala.Civ.App.1980)). "`Once an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal......
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Ex parte City of Irondale
...the circuit court when the motion to amend the condemnation order was filed on February 15, 1995. The City argues that McCoy v. Garren, 384 So.2d 1113 (Ala.Civ.App.1980), is controlling. In McCoy, the defendants attempted to appeal to the circuit court from the probate court's preliminary o......
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Ala. Power Co. v. Armstrong (Ex parte Ala. Power Co.)
...must wait until the order of condemnation is entered pursuant to § 18–1A–282 before any appeal can be filed. See McCoy v. Garren, 384 So.2d 1113, 1114 (Ala. Civ. App. 1980) ("No appeal from the preliminary order of condemnation is provided for in § 18–1–11[, Ala. Code 19753 ]. Although at o......
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Miles v. State
...had occasion to speak to the specific issue presented in this case. However, the Alabama Court of Civil Appeals in McCoy v. Garren, 384 So.2d 1113, 1114-15 (Ala.Civ.App.1980) has stated the following concerning a premature notice of "Appeals are of statutory origin, and, unless so provided,......