Newton v. Alabama Midland Ry. Co.

• Decision Date: 18 May 1893
• Parties: NEWTON v. ALABAMA MIDLAND RY. CO.
• Court: Alabama Supreme Court

13 So. 259

99 Ala. 468

NEWTON v. ALABAMA MIDLAND RY. CO.

Supreme Court of Alabama

May 18, 1893

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Condemnation proceedings by the Alabama Midland Railway Company against Nancy E. H. Newton. From a judgment denying defendant's motion to set aside a judgment for plaintiff, defendant appeals. Affirmed.

Farnham & Crum and Richardson & Reese, for appellant.

A. A Wiley, for appellee.

HEAD J.

The Alabama Midland Railway Company instituted proceedings in the probate court of Montgomery county to condemn a right of way over the lands of the appellant, under article 2, c. 15, tit 2, pt. 3, of the Code. Such proceedings were had in that court that on the 27th day of April, 1891, the petition was dismissed. On November 11, 1891, the petitioner obtained an appeal to the circuit court of the county from the order of dismissal, and the cause was regularly certified to and docketed in that court. The same counsel who had been employed by Mrs. Newton to represent her, and who did represent her in the probate court, appeared to represent and did represent, her cause on appeal in the circuit court. In that court, counsel of Mrs. Newton being present, the petition was amended so as to enlarge the right of way sought to be condemned from 80 feet to 100 feet in width; and, the cause then coming on for trial, on the 11th day of February 1892, as the judgment entry recites, all the parties appeared by their attorneys, and a trial was had by jury, who rendered a verdict in favor of the petitioner, and assessed the damages to be paid to Mrs. Newton at $700, and thereupon the court rendered judgment of condemnation in due form. At the next term of the court thereafter the appellant moved the circuit court to set aside the judgment on the ground that it was void, for the reasons: First. That no notice of the appeal was served upon her, or upon any one authorized to act for her, and that she never authorized or empowered any one to accept service or waive notice in that behalf for her. Second. The petition as filed and tried in said probate court, and upon which judgment was rendered in her favor, asked for the condemnation of 80 feet of land in width running through her entire premises, and that after the cause was removed by appeal from the probate court the petition was amended by asking for the condemnation of a strip of land running through her...