Wash v. Hunt

• Decision Date: 14 September 1967
• Docket Number: 8 Div. 247
• Parties: J. W. WASH et al. v. Carlton HUNT.
• Court: Alabama Supreme Court

Page 730

202 So.2d 730

281 Ala. 368

J. W. WASH et al. v. Carlton HUNT.

8 Div. 247.

Supreme Court of Alabama.

Sept. 14, 1967.

Morring, Giles, Watson & Willisson, Huntsville, for appellants.

Ford, Caldwell, Ford & Payne, Huntsville, for appellee.

HARWOOD, Justice.

Carlton Hunt owned a tract of land on Memorial Parkway in Huntsville. On 28 July 1958, he leased a portion of this land to E. M. Windsor and H. D. Ayers, partners doing business under the firm name of Huntsville Dry Wall Company, and to J. W. Wash, doing business as J. W. Wash Construction Company. The lease was for two years, at $150.00 per month, with a right of renewal for an additional two years at a rental of $200.00 per month.

The lease recited that the premises were to be used for storing materials, and the lessees were granted the right to erect suitable buildings for the purpose of storing materials and supplies to be used in construction work. The leased lot was to be used for no other purpose.

It was also agreed between the parties that the lessees should have the right to remove all buildings erected by them at the expiration of the lease, or the renewal thereof.

About two weeks after the execution of the lease, the lessees moved a building onto the lot. This structure is described by some witnesses as being a shed worth $800.00 to.$1000.00, and by the lessees and their witnesses as being a substantial building which, as improved by the lessees, was worth $11,500.00.

On 23 June 1960, the lessees notified Hunt in writing of their election to renew the lease under the provisions therein.

On 14 November 1960, the City of Huntsville and the County of Madison filed in the Probate Court a petition to condemn Hunt's land, Carlton Hunt being named as owner. On 22 February 1961, this petition was amended at the instance of the petitioners by adding the names of J. W. Wash, H. D. Ayers, and E. M. Windsor as additional defendants, the petitioners having been advised that a written lease existed between Carlton Hunt and said Wash, Ayers, and Windsor, of a portion of the land. The court ordered that notice of the petition be given to the three above named parties requiring them to propound their claim or interest in said lands within 20 days from 22 February 1961.

Copies of the petition were duly served upon Wash, Ayers, and Windsor.

Neither of the three ever filed any claim in any of the condemnation proceedings.

Peyton Drake, W. L. Sanderson, and J. R. Barkley were duly appointed commissioners by the Probate Court to assess the compensation to which each of the defendants was entitled and report their findings in writing to the Probate Court.

The Commissioners thereafter filed their report fixing the value of the lands at $93,000.00.

After a hearing the Probate Court entered a judgment condemning the land and awarding the land to the City of Huntsville and Madison County, and divesting all right, title and interest out of the defendants. Compensation was fixed at $93,000.00.

On 25 May 1961, the City of Huntsville and Madison County gave notice of appeal to the Circuit Court from the judgment of the Probate Court.

The record shows that a copy of the notice of this appeal was served upon John W. Green, Jr., Attorney of Record for 'all of the defendants.'

A jury trial was demanded in the City-County notice of appeal.

Carlton Hunt also took a cross appeal from the judgment of the Probate Court, though this appeal was belated.

The cause coming on for a hearing de novo in the Circuit Court, the court found that it was necessary to condemn the land for the purposes stated, and the evidence as to damages being submitted to a jury, compensation was fixed at $83,500.00.

It being shown to the court that $93,000.00, awarded as compensation in the Probate Court, had been deposited by the condemnors with the Judge of Probate, the court further ordered that the Probate Court pay to Carlton Hunt $83,500.00 less payment for any liens filed in that court, and the balance be paid over to the City of Huntsville and Madison County, and that a copy of the order be transmitted to the Probate Court.

Pursuant to such order, the Probate Court paid to Carlton Hunt $83,500.00 (there being no liens filed against the property in the Probate Court) and paid the balance of the $93,000.00 deposited in the Probate Court, that is, $9,500.00 to the City and County.

Thereafter, on 12 February 1964, J. W. Wash, doing business as J. W. Wash Construction Company and E. M. Windsor and H. D. Ayers, doing business as Huntsville Dry Wall Company, filed a complaint against Carlton Hunt. The complaint was in two counts. Count 1 is in code form for money had and received. Count 2 essentially sounds in money had and received, but recites that the defendant has received $83,500.00 for condemnation of certain lands owned by him, and that the defendant knew that the plaintiffs were entitled to share in the condemnation award to the extent of the value of a building located on said land to which the plaintiffs had a right of removal.

A jury trial resulted in a verdict and judgment for the defendant Hunt, and it is from this judgment that the present appeal is prosecuted.

In the trial of the present suit in the Circuit Court, the plaintiffs introduced the file of the condemnation proceedings in the Probate Court, including the written report of the Commissioners fixing the compensation to be paid for the land.

J. W. Wash testified that he knew of the condemnation proceedings of the Hunt property in the Probate Court from reading about it in the papers, and also had been served with notice of the proceedings, and directed therein to...