Trimble v. City of Prichard
| Decision Date | 30 September 1983 |
| Citation | 438 So.2d 745 |
| Parties | Sandra Shade TRIMBLE v. The CITY OF PRICHARD, et al. 82-264. |
| Court | Alabama Supreme Court |
James D. Wilson, Mobile, for appellant.
Otto E. Simon and J. Randall Crane, Mobile, for appellees.
This is an appeal from a summary judgment upholding the constitutionality of a municipal ordinance which prescribed criminal penalties for its violation. At the time the original declaratory judgment action was filed, a separate criminal proceeding to enforce the ordinance was pending against the appellant.
On October 15, 1980, the Prichard City Council passed Ordinance # 1536 which levied a monthly fee or tax on certain classes of Prichard citizens to defray the costs of public services. The ordinance required that Prichard citizens who either lived in homes equipped with kitchens or received city water services at their home or business pay the city a $5.00 monthly fee. Citizens who failed to pay the monthly fee and the additional $3.00 late charge would be guilty of a misdemeanor and fined not less than $10.00 nor more than $100.00 if convicted.
Sandra Shade Trimble, a resident of Prichard whose home contained a kitchen and who received city water services, failed to pay the assessment imposed by Ordinance # 1536 as amended. The City of Prichard then issued arrest warrants against Trimble, who was subsequently arrested, charged, and convicted of violating the ordinance. Her conviction is presently on appeal to the Mobile County Circuit Court.
After Trimble's arrest but before her conviction, she filed a declaratory judgment class action against several city defendants, urging the trial court to find Ordinance # 1536 as amended unconstitutional, in violation of the equal protection clause of the fourteenth amendment to the United States Constitution and in contravention of the limited taxing powers of a municipality. She also sought a temporary restraining order (TRO) and a permanent injunction prohibiting the enforcement of the ordinance in the pending criminal actions.
Although the trial court granted Trimble's request for a TRO on September 24, 1981, the court subsequently conducted a hearing and dissolved its order on February 17, 1982. No class was established.
Both parties then filed motions for summary judgment, and the trial court granted summary judgment in favor of the city defendants based upon the pleadings, affidavits, and in-court testimony received during the TRO dissolution hearing. Trimble filed a notice of appeal but failed to include the transcript or a summary of the TRO dissolution hearing in the record on appeal.
Jurisdiction of a declaratory judgment action will not be entertained where another proceeding is pending at the time of the declaratory judgment action to which the same persons are parties and in which the same issues may be adjudicated. Mathis v. Auto-Owners Ins. Co., 387 So.2d 166 (Ala.1980). The circuit court, exercising its equity powers, was therefore without jurisdiction to entertain Trimble's declaratory judgment action against the City of Prichard which contested the constitutionality of Ordinance # 1536 as amended where a separate criminal proceeding brought by the City of Prichard to enforce the ordinance was pending against Trimble.
Because lack of subject matter jurisdiction can never be waived or supplied by consent, it is of no consequence that neither party raised the issue on appeal. Alabama State Bar v. Watson, 289 Ala. 729, 272 So.2d 240 (1972); Rinehart v. Reliance Life Ins. Co. of Ga., 272 Ala. 93, 128 So.2d 503 (1961).
Because the civil court was without jurisdiction to entertain the declaratory judgment action, the judgment was coram non judice and therefore void. The appeal from such void judgment is due to be dismissed.
Moreover, appellant's failure to comply with the Alabama Rules of Appellate Procedure also warrants dismissal of her appeal. A.R.A.P. 2(a)(2)(D).
The corrected final order which granted summary judgment shows that the case was submitted on the pleadings, affidavits, and in-court testimony of certain witnesses. Although a court reporter was present during the hearing, it is unclear whether the testimony of the witnesses was recorded. Trimble's designation of the record on appeal contains...
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