McGowin Inv. Co. v. Johnstone

• Citation: 291 Ala. 714,287 So.2d 835
• Parties: McGOWIN INVESTMENT COMPANY, a corporation, et al. v. Douglas Inge JOHNSTONE and Mary Jayne Johnstone. SC 490.
• Decision Date: 20 December 1973
• Court: Supreme Court of Alabama

Page 835

287 So.2d 835

291 Ala. 714

McGOWIN INVESTMENT COMPANY, a corporation, et al. v. Douglas Inge JOHNSTONE and Mary Jayne Johnstone.

SC 490.

Supreme Court of Alabama.

Dec. 20, 1973.

Edmund R. Cannon and Jerry A. McDowell, Mobile, for appellants.

James L. May, Jr., Mobile, for appellees.

BLOODWORTH, Justice.

Appellant, McGowin Investment Company, et al., appeal from a judgment of the Circuit Court of Mobile County, granting appellees Johnstones' application to condemn a right of way over and across certain lands of McGowin Investment Company.

Appellees filed their application to condemn a right of way over the McGowin lands in the Probate Court of Mobile County, pursuant to Title 19, § 56 et seq., Code of Alabama 1940, as last amended. Appellees later amended their application. By decree of August 17, 1972, the probate judge denied the amended application. Appellees then appealed to the circuit court. After a trial de novo, Honorable William D. Bolling, the trial judge, by a judgment dated April 4, 1973, granted appellees' amended application to condemn a right of way over and across the McGowin lands. Appeal to this court then followed. By the judgment, the trial court 'retains jurisdiction of this cause for such others, further and different orders, judgments, and decrees as the Court may deem proper in the matter of damages.' Jury trial on the issue of damages was set for June 13, 1973.

There is a procedural issue to be resolved before we can consider the merits of this appeal. Appellees bring to the court's attention the fact that the circuit court's judgment does not adjudicate the matter of damages and retains jurisdiction for that express purpose. Appellees submit that this judgment is not such a final judgment as will support an appeal, although, in brief, they specifically waive any objection thereto. On the other hand, appellants argue that this judgment is a final judgment. ¹

Section 23 of Title 19, Code of Alabama 1940, provides for appeal to this court in condemnation proceedings within thirty days 'After final judgment in the circuit court * * *.' As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties. Taylor v. Major Finance, Co., Inc., 289 Ala. 458, 268 So.2d 738 (1972); Mason v. McClain, 271 Ala. 93, 122 So.2d 519 (1960).

No Alabama case has been cited in brief which has considered the question as to whether a judgment, which granted an application for condemnation but retained jurisdiction of the cause for determination of damages, is a final judgment within the meaning of § 23. Appellants do cite two cases which they say stand for the proposition that this court has, in fact, considered appeals in condemnation proceedings prior to determination of damages. These cases are Gralapp v. Mississippi Power Company, 280 Ala. 368, 194 So.2d 527 (1967) and Berry v. Alabama Power Company, 257 Ala. 654, 60 So.2d 681 (1952). A review of the original records in these two cases reveals, however, that damages had been assessed by the trial court before appeal. It is apparent that this court, on appeal, simply did not see fit to mention the issue of damages.

This court has been unable to find any Alabama condemnation case in which an appeal was allowed prior to assessment of damages. Additionally, no case of any nature in this state has been cited to this court in which an appeal was permitted prior to an adjudication by the trial court...