McKinney v. Commissioners' Court of Bibb County

• Decision Date: 21 December 1909
• Parties: MCKINNEY ET AL. v. COMMISSIONERS' COURT OF BIBB COUNTY.
• Court: Alabama Supreme Court

52 So. 756

168 Ala. 191

MCKINNEY ET AL. v. COMMISSIONERS' COURT OF BIBB COUNTY.

Supreme Court of Alabama

December 21, 1909

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Certiorari by H. C. McKinney and others against the Commissioners' Court of Bibb County to review an order of the court. From a judgment denying relief, plaintiffs appeal. Reversed and rendered.

Simpson J., dissenting.

D. W Crawford, for appellants.

John T Ellison and Lavender & Thompson, for appellee.

McCLELLAN J.

The motion to dismiss the appeal is predicated upon the idea that the appeal was taken by one only of the parties against whom joint judgment was rendered. If it were assumed that a joint judgment was entered below, the certificate of appeal refutes the asserted fact that one only of the parties prejudiced by the judgment prosecuted the appeal and that in his own name only. The certificate of appeal recites that "H. C McKinney et als. did on the 30th day of September, 1908, after giving security for costs, obtain an appeal. * * *" The notice of appeal likewise recites that "H. C. McKinney et als." had taken an appeal The certificate of appeal refers to "H. C. McKinney et als." as plaintiffs. The motion to dismiss the appeal must be overruled.

This common-law certiorari sought to have pronounced void the acts or orders of the commissioners' court of Bibb county declaring the stock law effective in precinct 5 in that county. The application of the stock law was sought in virtue of the act approved September 29, 1903 (Gen. Acts 1903, p. 431). Upon a petition numerously signed by "freeholders for precinct No. 5," the following order appears as having been made: "State of Alabama, Bibb county: It appearing to the court that the within petition contains more than a majority of the freeholders in precinct No. 5 of Bibb county, Alabama, it is therefore ordered that an election be held on Saturday the 23d day of November, 1907, at which election the qualified voters of said precinct shall determine whether or not a law shall be enforced in said precinct prohibiting the running at large of hogs, sheep and goats." Subsequently, the court took this action: "On motion the above order is presented, and this court is continued to the 2d day of November, 1907, for the further consideration of the said petition to hold an election in beat 5 as set out in the petition of said citizens of beat 5." Counsel for both sides insist in brief that the word "resented" in the last order should be read, and was intended in reality to be, "rescinded." We take it so.

In the exercise of the statutory powers conferred on the commissioners' court by the act above cited, the court is, of course, one of limited jurisdiction, and to sustain its acts in the premises the records of that...