Moore v. City of Mobile

• Decision Date: 05 December 1946
• Docket Number: 1 Div. 264.
• Citation: 28 So.2d 203,248 Ala. 436
• Court: Alabama Supreme Court
• Parties: MOORE v. CITY OF MOBILE.

28 So.2d 203

248 Ala. 436

MOORE v. CITY OF MOBILE.

1 Div. 264.

Supreme Court of Alabama

December 5, 1946

Johnston McCall & Johnston, of Mobile, for appellant.

Harry Seale, of Mobile, for appellee.

GARDNER Chief Justice.

Appellant Ida Arata Moore, the owner of two city lots with improvements thereon designated as parcels 7 and 8, and more particularly described in the ad quod damnum proceeding, being dissatisfied with the amount of compensation awarded in the Probate Court of Mobile County, upon the condemnation of her property for municipal purposes, appealed to the Circuit Court, as provided in Title 19, Section 17, Code of 1940.

So far as the merits of the case were concerned, the only question for consideration on appeal was the proper valuation of the property so condemned.

A preliminary matter, however, was presented relating to the right of trial by jury in said Circuit Court. The appeal to the Circuit Court from the order of condemnation under the above noted statute was entered October 1, 1945, and service of the notice of appeal accepted on that date by counsel for the City. Ida Arata Moore made no demand for a trial by jury. But on October 29, 1945, the City through its attorney filed written demand in the Circuit Court that the case be tried by a jury. Appellant moved to strike this demand for a jury trial for the reason that it was not made within the time required by law, and that the City had waived its right to demand such a trial. This motion was denied, as was the motion of appellant that the Court restore the case to the nonjury docket. It will be noted that the demand of the City for a jury trial was made long subsequent to the expiration of the ten days after service of notice of appeal to the Circuit Court.

The statute upon which appellant relies is Title 7, Section 264 Code of 1940, which provides, in substance, that in all causes in the Circuit Court brought by appeal or certiorari from the judgment of Justices of the Peace, or other inferior courts, the issues of fact shall be tried by the judge without a jury unless demand for a jury trial be made in writing and filed in the cause by the party suing out the appeal, or certiorari, within ten days; or filed in the cause by the opposite party within ten days after he had been served with notice of the appeal. The succeeding section (265) is to the effect that the failure to demand in writing a jury trial, as provided, shall be considered a waiver of the right.

It is to be noted that Title 19, Section 17, Code of 1940, providing for appeals in condemnation cases to the Circuit Court, makes provision that the trial shall be de novo, but without any reference to the question of a jury trial. And Article 12, Section 235, Constitution of 1901, dealing specifically with condemnation matters, merely provides, upon this question, that the amount of the damages in all cases of appeal shall, on demand of either party, be determined by a jury according to law. It is clear enough, therefore, so far as this constitutional provision is concerned, it is in entire harmony with the statutory provisions as to the demand for trial by jury, and the right to waive a jury trial, if the party so desires. In Article 1, Section 11, Constitution of 1901, is the provision that the right of trial by jury shall remain inviolate. But, as observed in Oliver v. Herron, 106 Ala. 639, 17 So. 387:

'The right of jury trial is a personal right, of which no person can be deprived against his will, but there is neither constitutional nor statutory provision which prohibits him from waiving his constitutional privilege in civil actions.'

And in the early case of Johnston v. Atwood, 2 Stew. 225, is the observation that 'what had never been demanded could with no propriety be said to have been denied.'

The general rule relating to this matter with right of trial by jury and the waiver of such right is stated in 35 Corpus Juris page 227, as follows:

'The legislature may make any reasonable regulation as to what acts of a party shall be deemed a waiver of the right to a jury trial, and may authorize a waiver in criminal cases. It may provide that to entitle a party to a jury trial he must make a demand therefor, and may prescribe at what stage of the proceedings, and in what manner, the demand shall be made, and may also require him to file within a certain time a notice that a jury trial will be demanded; but the court cannot make any rules to this effect which are in contravention of the express provisions of the constitution or statute.'

And speaking of the right of eminent domain, and the right of trial by jury, found in 29 C. J. S., Eminent Domain, § 281, page 1285, is the following:

'A constitutional guaranty that the compensation shall be assessed by a jury may be waived, as where there is failure to make due and timely application for jury trial on appeal from an award by commissioners or on appeal from a judgment confirming such award.'

To like effect, see 30 C. J. S., Eminent Domain, § 372, page 71.

All of our authorities are in full accord. They are to the effect that a demand not made within the time prescribed by legislative act comes too late, and is a waiver of the right. Taylor v. Farmers' State Bank, 213 Ala. 356, 104 So. 801; Carothers v. Callahan, 207 Ala. 611, 93 So. 569; Logwood v. Huntsville Bank, Minor 23; Johnston v. Atwood, 2 Stew. 225; Ex parte Ansley, 107 Ala. 613, 18 So. 242; Robinson v. Newton Grocery Co., 200 Ala. 528, 76 So. 854; Blankenship v. Nimmo, 50 Ala. 506; Alabama Utilities Co. v. Staggers, 234 Ala. 101, 173 So. 55, 56.

In the last cited case the court emphasized the mandatory character of statutes of this kind, wherein it was observed:

'Plaintiff had waived the right of trial by jury. Defendant made no demand for jury trial. The statute expressly declares that in such event the case shall be tried by the judge. It is not within the discretion of the court on its own motion nor on the motion of plaintiff to transfer the cause to the jury docket.

'On motion of defendant, made before entering upon the trial, the cause should have been retransferred to the nonjury docket. Refusal of such motion is error to reverse.'

The remaining question, therefore, relates to the applicable statute. Evidently, the City considered the case was on governed by Title 7, Section 260, Code of 1940. But, we are of the opinion that a reading of the provisions of that section clearly indicate it has application to cases instituted in that court and that it was not intended to apply to appeal cases such as here involved. The case of Massey v. Reynolds, 213 Ala. 178, 104 So. 494, may be cited as having some indirect bearing.

On the contrary we are persuaded that Title 7, Section 264, Code of 1940, governs this case. The Court of Probate is one of constitutional recognition with important jurisdiction. But we are nevertheless convinced that it is an inferior court within the meaning of said Section 264. The Judge of Probate is the judge of the county court (Title 13, Section 313, Code 1940) from which an appeal may be prosecuted to the Circuit Court (Title 13, Section 326, Code 1940) where a jury trial may be had on demand of the defendant as prescribed by law. What demand is prescribed by law in such appeal? The answer is the demand as specified in Section 264, Title 7, supra, as clearly there is no other applicable statute.

This is a cause brought by appeal from said Court of Probate to the Circuit Court, and such appeal is, we think, brought well within the meaning of the above noted statute. This statute was held applicable to appeals from assessment on...