Stanton v. Monroe County, 1 Div. 593
| Decision Date | 20 May 1954 |
| Docket Number | 1 Div. 593 |
| Citation | 261 Ala. 61,72 So.2d 854 |
| Parties | STANTON v. MONROE COUNTY. |
| Court | Alabama Supreme Court |
Telfair J. Mashburn, Jr., Bay Minette, for petitioner.
Ralph L. Jones, Monroeville, for respondent.
This is a petition to this court for writ of certiorari to be directed to the Circuit Court of Monroe County, Alabama, requiring that court to certify and send up to this court the record of the proceedings in the case of Alvin Stanton v. Monroe County in order that we may review and determine said cause.
In substance, the following facts are stated in the petition: On July 6, 1953, the appellee, Monroe County, filed a petition in the probate court of that county to condemn certain lands therein belonging to appellant for highway purposes. The application for an order of condemnation was granted on July 25, 1953, and commissioners were appointed to appraise said lands. On August 10, 1953, the commissioners filed their report. Appellant filed notice of appeal to the circuit court on August 18, 1953. The order of condemnation, however, was not actually entered by the probate court until August 26, 1953. On October 26, 1953, Monroe County filed a motion to dismiss the landowner's appeal, then pending in the circuit court, on the ground that the appeal had been prematurely taken. Appellant, on November 10, 1953, filed a motion to amend his appeal in the circuit court so as to show that said appeal was filed on August 26, 1953, instead of August 18, 1953. In support of the latter motion, appellant filed affidavits made by the petitioner, Alvin Stanton, and his attorney. These affidavits were to the effect that petitioner's attorney, in the presence of the petitioner, called the Probate Judge of Monroe County on the telephone and asked him for the date upon which the order of condemnation had been entered. The affidavits further state that the probate judge told petitioner's attorney that the order of condemnation had been entered on August 10, 1953; that, relying on the information given him by the probate judge who would make the order of condemnation, petitioner's attorney prepared the notice of appeal as of said date. Subsequently, the appellee filed an affidavit made by E. T. Millsap, the probate judge, admitting the telephone conversation with petitioner's lawyer on August 18, 1953, but denying that he had told the said attorney that an order of condemnation had been entered in the case involving petitioner's lands on August 10, 1953. The probate judge stated that he had merely told petitioner's attorney that the commissioners had made their report on the latter date. On January 29, 1954, A. H. Elliott, Judge of the Circuit Court of Monroe County, entered an order denying petitioner's motion to amend, and dismissed the appeal. The instant petition is based upon said rulings of the circuit court.
The ground in support of appellee's 'Motion to Dismiss Petitioner's Appeal' is that said appeal was prematurely taken. Thus, we must determine whether or not the circuit court ever acquired jurisdiction over the cause.
In approaching the solution, we should keep in mind that the question involves an appeal from the probate court to the circuit court, under a special statutory provision, dealing with the specific subject of this proceeding. See Tit. 19, § 17, Code of Alabama 1940. The right of the Supreme Court, under art. 6, § 140, Constitution of Alabama 1901, to exercise 'a general superintendence and control of inferior jurisdictions' is not involved. Tit. 7, § 805, Code of Alabama 1940, which provides for amending defects in the taking of appeals to the Supreme Court and Court of Appeals, has no application in this case. Also, the application for appeal, provided for in Tit. 7, § 754, Code of Alabama 1940, has no reference to an appeal from the probate court to the circuit court.
Tit. 19, § 17, Code of Alabama 1940, states as follows:
'Appeal to circuit court.--Any of the parties may appeal from the order of condemnation to the circuit court of the county within thirty days after the making of the order of condemnation, by filing in the court rendering the judgment, a written notice of appeal, a copy of which shall be served on the opposite party, or his attorney, and on such appeal, the trial shall be de novo, * * *.'
As stated previously, appellant filed notice of appeal to the circuit court on August 18, 1953, more than a week prior to the date (August 26, 1953) that the order of condemnation was actually entered by the probate court. Appellant did not file a motion to amend his appeal until November 10, 1953, approximately two and a half months after the order of condemnation was entered. Such, in our opinion, conclusively shows that Tit. 19, § 17, supra, was not complied with...
To continue reading
Request your trial
-
Jefferson County v. Adwell
...the circuit court erred in overruling the county's motion to dismiss Adwell's appeal. The effect of our holding in Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854, is that in cases of this character the circuit court is without jurisdiction unless the appeal is from the order of condemn......
-
Blackford v. Hall Motor Exp., Inc.
...her. Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 81 So.2d 674; Graham v. State, 30 Ala.App. 179, 2 So.2d 463; Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854; Hayes v. State, 39 Ala.App. 202, 99 So.2d 703, certiorari denied 267 Ala. 695, 99 So.2d 704; Clary v. Cassels, 258 Ala.......
-
Ex parte Tsimpides
...pursuant to the time and manner prescribed * * *.' Lewis v. Martin, 210 Ala. 401, 409, 98 So. 635, 642. See also, Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854; Clary v. Cassels, 258 Ala. 183, 61 So.2d 692; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Coker v. Fountain, 20......
-
Boutwell v. State
...of his right to appeal under § 18-1A-283. Ex parte City of Irondale, 686 So.2d 1127, 1129 (Ala. 1996); Stanton v. Monroe County, 261 Ala. 61, 63, 72 So.2d 854, 855 (1954). The letter quoted the entire text of § 18-1A-283 and included a copy of the condemnation order. Section 18-1A-283 "Any ......