State ex rel. Denson v. Howze

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State ex rel. Denson v. Howze, 247 Ala. 564, 25 So.2d 433 (Ala. 1945)
• Decision Date: 08 November 1945
• Docket Number: 6 Div. 366.
• Parties: STATE ex rel. DENSON v. HOWZE, Judge of Probate.

25 So.2d 433

247 Ala. 564

STATE ex rel. DENSON v. HOWZE, Judge of Probate.

6 Div. 366.

Supreme Court of Alabama

November 8, 1945

Rehearing Denied March 28, 1946.

W. A. Denson, pro se.

Benners, Burr, Stokely & McKamy, Borden Burr and Frontis H. Moore, all of Birmingham, for appellee.

The following are grounds of demurrer to the petition:

'7. The ownership, right, title or interest of relator in the lands sought to be condemned is not sufficiently set forth or described in said petition.' '13. Said petition sets forth no facts which show that relator at the time of the filing of the application for condemnation or at the present time has any ownership in or any interest, right or claim to the lands sought to be condemned or to any portion thereof.'

SIMPSON Justice.

Petition for mandamus originally before Hon. Richard V. Evans, Judge of the Circuit Court of Jefferson County, to compel Hon Henry R. Howze, as Judge of the Probate Court of said County, to allow relator, W. A. Denson, to intervene as a party to certain eminent domain proceedings pending in said Probate Court.

The case is here on appeal from the judgment of said Circuit Court sustaining respondent Judge's demurrers to the petition and his motion to strike certain amendments to the petition subsequently filed.

The sufficiency of the petition may be tested by appropriate demurrer and when so it is construed most strongly against the pleader, all doubts to be resolved against him. Lewis v. Jenkins, 215 Ala. 680, 112 So. 205; Daffin v. Scotch Lumber Co., 226 Ala. 33, 145 So. 452; State v. Hogan, 204 Ala. 325, 85 So. 557.

The writ will be denied when the petition does not aver sufficient facts to clearly establish the legal right to coerce the particular official action sought, State v. State ex rel. Hotel Tutwiler Operating Co., 230 Ala. 657, 162 So. 365; City of Decatur v. Mohns, 235 Ala. 640, 180 So. 297, so, when the demurrer raises the point, it is properly sustained.

Such petition must establish by clear averments the facts of delinquent official conduct from which arises as a conclusion of law the defendant's legal authority and duty in the premises. Lewis v. Jenkins, supra.

Mere conclusions of the pleader, as distinguished from clearly averred facts, will not suffice and are disregarded in testing the sufficiency of the petition. Hodges v. Board of Education, 245 Ala. 64, 16 So.2d 97; Farson, Son & Co. v. Bird, 197 Ala. 384, 72 So. 550.

Relator seeks to enforce his intervention in the proceedings pending before the Probate Court to condemn certain lots for public use and according to his mandamus petition his right to intervene is predicated upon the contention that he has an interest in the property, though the record title, it would seem, is in his son.

It will be noted that § 3, Title 19, Code 1940, requires that a petition for condemnation state the names and residence of the owners of the tract sought to be condemned and 'any other parties claiming or holding any right, title, or interest therein, if known;' and § 4 commands the court to issue a notice to all such parties including those 'as claim or hold any right, title, or interest therein.'

In discussing the statute we have said that the proper course for a petitioner to pursue in such a proceeding is to make a party thereto 'anyone shown by the record to have any interest in the land, or of whom he has notice of a claim of interest therein.' Alabama Power Company v. Herzfeld, 216 Ala. 671, 673, 114 So. 49, 51.

But the bare statement of a stranger to the record title of a claim of interest, unsupported by a proper pleading and prima facie showing of such claim will not suffice. It is our view, and we so hold, that to effectuate his intervention in the cause the claimant must so plead, and make a bona fide, prima facie showing of an interest in the property involved.

What facts, as contra-distinguished from mere conclusions, are averred in the instant petition for mandamus which the Circit Court ruled as insufficient? Construing them as liberally as we are permitted to under the stated rules, they are: Relator appeared in the Probate Court on the day set for the hearing of the application to condemn and presented to the Judge thereof his request for permission to intervene under a claim of interest in the property by reason of having been the mortgagor in certain mortgages on the property then in force and effect; that he had, subsequent to the execution of the mortgages, conveyed the lots to his son, but that the notes which the mortgages secured were still due and unpaid, thereby rendering him personally liable thereon and that his interest in the property was to see that in the condemnation proceedings the compensation paid for the taking would at least exceed the amount of his personal debt due under the mortgages. Upon request of the Court he thereupon placed his claim in writing. The petition then recites that the mortgages, notes, deed from relator to his son and a certain contract between his son and himself were all introduced in evidence in support of this claim. Neither his written claim nor any of the other documents mentioned above were exhibited with his mandamus petition nor were they submitted to the Circuit Court for consideration. The petition then concludes that the Probate Court refused to permit him to intervene in the proceedings, hence the prayer for writ of mandamus to enforce his contended right.

It is quite apparent that these facts, appearing by the allegations of the petition, do not suffice to show relator's clear legal right to the award of the writ nor should we reverse the trial court in ruling them as insufficient against the demurrer interposed. There may be circumstances in which he, as the mortgagor, might have some equitable interest in the property, Tennessee Valley Bank v. Sewell, 214 Ala. 362, 107 So. 834; Hawkins v. Holman, 239 Ala. 541, 195 So. 880; Thomas v. St. Paul's M. E. Church, 86 Ala. 138, 5 So. 508, entitling him to intervene, while under other circumstances he would not. Just what his status is was not shown to the Circuit Court. It may be that the notes, mortgages and contracts submitted to Judge Howze as supporting his claim of intervention, and which he refrained from submitting to Judge Evans, would show conclusively that he had no claim or interest and, therefore, no right to intervene. So resolving all doubts against him, as the rule requires, the Circuit Court will not be placed in error for sustaining the demurrers to the petition and denying the writ.

While a demurrer operates as an admission for purposes of demurrer of all well-pleaded allegations of facts in the pleading demurred to, conclusions of law are not admitted. 38 C.J. 902, 903 § 633. The allegation, therefore, in the petition for mandamus that the documents which relator submitted to the (Probate) Court showed 'by undisputed and indisputable written record evidence the interest of relator in said condemnation proceeding and his contract with the transferee of each of said pieces of property is undisputed and indisputable written record evidence of relator's interest in said parcels 17 and 19, so numbered and described in applicant's petition,' is but the bare conclusion of the pleader. This defect was specifically challenged by grounds 7 and 13 of the demurrer (and others too) which pointed it out as the statute requires (Wallace v. Markstein, 147 Ala. 262, 40 So. 201) and rendered the allegation impotent as a basis for the issuance of the writ. Hodges v. Board of Education, supra.

Likewise, the amendments to the original mandamus petition were ineffective because they did not purport to aver a showing before the Probate Court of an interest in the property, but to the contrary, asserted an ownership of interest as an independent fact before the Circuit Court. Hence, other contended defects not considered, they were obviously deficient in this respect and not germane to the original petition because in determining the right to the writ the Court considers the status existing not in the court to which the petition is addressed but in the inferior court sought to be coerced as of the time of the filing of the petition. Ex parte City of Florala, 216 Ala. 353, 113 So. 312.

The motion to strike these amendments was therefore properly sustained.

The writer thinks all rulings of the trial court were correct, but the majority thinks otherwise as to one proposition, as hereafter expressed in the opinion of Mr. Justice FOSTER.

The point of divergence taken by the majority view, however, is in my opinion not sustained by the record, and on this point I respectfully dissent.

Mr. Justice BROWN concurs in these views.

FOSTER Justice.

The particular matter in the opinion of Justice SIMPSON with which we do not agree is the assumption that the demurrer to the petition for mandamus sufficiently specifies the objections to the petition which are well taken.

We agree with him that the petition is defective, but the particular matter in which it is defective is in the failure to allege the substance of the claim presented in the probate court, and the substance of the documents referred to in the petition, and in alleging the conclusion of the pleader that they give 'undisputed and indisputable written record evidence' of his interest in the property. But the question which confronts us is whether or not there are sufficient grounds set forth in the demurrer to raise that particular defect in the petition. In that connection we are confronted with the requirements of section 236, Title 7, Code of 1940, to the effect that no demurrer in pleading can be allowed except in matters of substance, which the party demurring must specify and no objection...