State v. Ellis

• Decision Date: 22 May 1924
• Docket Number: 7 Div. 444.
• Parties: STATE EX REL. COOPER ET AL. v. ELLIS ET AL.
• Court: Alabama Supreme Court

100 So. 866

211 Ala. 489

STATE EX REL. COOPER ET AL. v. ELLIS ET AL.

7 Div. 444.

Supreme Court of Alabama

May 22, 1924

Rehearing Denied June 19, 1924.

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Proceeding in quo warranto by the State of Alabama, on information of O P. Cooper and another, against J. W. Ellis and others, as Mayor, Councilmen, and officers of the municipality of Valley Head, to exclude them from exercising corporate rights and privileges. From a judgment denying the writ and dismissing the petition, relators appeal. Affirmed.

Isbell & Scott, of Ft. Payne, for appellants.

Bailey & Weaver, of Ft. Payne, and W. T. Murphree, of Gadsden, for appellees.

THOMAS J.

The proceeding is quo warranto to test the validity of the incorporation of the town of Valley Head. The writ was denied, and the petition dismissed.

The real question propounded is: Does the record, as substituted show an incorporation of said municipality? No attack is made on the sufficiency of the citizens' petition to incorporate, or the qualifications of the persons signing the same. The judge of probate ordered the election, and gave the required notice thereof. The election was held pursuant to such order and notice, and the returns thereof canvassed showed that a majority voting was in favor of incorporation. A census was taken, as required, and that showed more than one hundred population. Thereafter the probate judge made an order declaring the due incorporation of the municipality. This order was not, at the time of its issue, recorded on the minutes of the probate court of De Kalb county, but was later so recorded.

The town elected officers who served their terms. The mayor and aldermen against whom this proceeding is filed had been regularly elected at the time prescribed by law for holding municipal elections, and the town has been functioning as a regularly organized municipal corporation since said first election of officers. Some time after the organization of the municipality it was discovered that some of the papers had been lost or destroyed, and that the order declaring the town incorporated had not been recorded on the minutes of the probate court. The municipal authorities began proceedings before the probate judge to substitute the lost records which was done in due course, and the order of incorporation was recorded on the minutes of the probate court of said county, all of which had been done at the time of the trial of this cause.

It is conceded by counsel for appellant that there is no statute in this state governing the substitution of lost papers in a matter of this kind, and that substitution could only be made by the court in the exercise of its inherent power to preserve its own records, and which power was recognized by the common law.

The quotation of counsel from 34 Cyc. 606, 608, referring to notice as a part of the procedure, is inapplicable in this case. The reference to notice to the opposite party evidently has reference to a cause of action between litigants who are opposite parties. The proceeding to establish a municipality is a statutory ex parte proceeding in which there is no adverse party, and there could be no service on a party that did not exist. The only information the probate judge could have is that at the time of the election a certain number of voters were in favor of incorporation, and a certain number were against it, but who they were he could not know under the rule of secrecy which attends an uncontested election.

It is suggested that notice of substitution might have been given by publication; but this form of service can only be effective when provided for by statute as in the Illinois case cited in appellant's brief. De Wolfe v. Boswell, 65 Ill.App. 65. The question of notice on proceedings for substitution, without a statute providing therefor and the procedure to that end, came before this court in Wilkerson v. Branham, 5 Ala. 608, where the following language is used:

"As a precautionary measure, to prevent injustice from being done, we are preparded to say, that where the motion is made after judgment, notice should be given, yet it must be regarded as a mere question of practice, and we are inclined to think, if the court act without it, its judgment would not be reversible."

The inherent power of the court to substitute was the subject of discussion in the following cases; Oswitchee Co. v. Hope & Co., 5 Ala. 629, 633; Murray v. Tardy, 19 Ala. 710; Ganaway v. State, 22 Ala. 772; Ortez v. Jewett & Co., 23 Ala. 662; Taylor v. McElrath, 35 Ala. 330; Bradford v. State, 54 Ala. 230. In Wise v. State, 208 Ala. 58, 93 So. 886, this inherent power in a court of general jurisdiction to restore and substitute its lost records was declared to exist under the common law, and "independently of statute." It was said of the jurisdiction of a court of chancery and at common law in such matters:

"'The jurisdiction, being concurrent, will be maintained only: First, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious title to relief. Both grounds must concur in the given case; for otherwise a court of equity *** is bound to withhold its aid."' Mr. Justice Blackstone said: "'Many accidents are supplied in a court of law; as loss of deeds. *** And many cannot be redressed even in a court of equity. ***' 3 Black. Comm. 431; Story, Eq. Jur. (13th Ed.) p. 88, § 79; Id. (14th Ed.) §§ 119, 120."

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