Wilkes v. Hawkins

• Court: Alabama Supreme Court
• Writing for the Court: BROWN, Justice. BROWN, Justice.
• Citation: Wilkes v. Hawkins, 240 Ala. 85, 195 So. 446 (Ala. 1940)
• Decision Date: 16 May 1940
• Docket Number: 6 Div. 629.
• Parties: WILKES v. HAWKINS, JUDGE.

195 So. 446

240 Ala. 85

WILKES v. HAWKINS, JUDGE.

6 Div. 629.

Supreme Court of Alabama

May 16, 1940

Rehearing Denied June 29, 1940.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Petition to the circuit court by M. E. Wilkes for certiorari to review and quash proceedings and judgment of the probate court in condemnation proceeding by the City of Bessemer, as plaintiff, against the petitioner, as defendant. From an order or judgment dismissing the petition on motion of the respondent, Eugene Hawkins, Probate Judge, petitioner appeals.

Appeal dismissed.

Horace C. Wilkinson, of Birmingham, for appellant.

H. H Sullinger and G. H. Bumgardner, both of Bessemer, for appellee.

BROWN Justice.

This appeal is by the landowner from an order of the circuit court of Jefferson County, Bessemer Division, dismissing his petition for the issuance of the common law writ of certiorari to review and quash the proceeding and judgment of the Probate Court in an ad quod damnum proceeding instituted by the City of Bessemer to acquire by condemnation a right of way over the land of appellant for the construction and maintenance of a power line for the transmission of electricity.

The only parties to this appeal are Wilkes, the landowner, and Eugene Hawkins, as Judge of Probate of Jefferson County. The litigation provoked by the filing of the petition for the common law writ of certiorari is between the landowner and the City of Bessemer who instituted the condemnation proceedings and procured the judgment of condemnation; the subject matter of the litigation is the record and proceeding of the Probate Court, and the scope of the inquiry goes only to the external validity of the proceeding--the jurisdiction of the Probate Court over the subject matter and the parties. Independent Publishing Company v. American Press Association, 102 Ala. 475, 15 So. 947; Nashville, C & St. R. Co. v. Town of Boaz et al., 226 Ala. 441, 147 So. 195; St. John et al. v. Richter et al., 167 Ala. 656, 52 So. 465.

Hawkins, as Judge of Probate, was not a party to the condemnation proceeding, had no pecuniary interest therein, and was not a proper party to the certiorari proceeding in the circuit court. St. John et al. v. Richter et al., supra; 10 Am.Jur. 542, § 17.

The City of Bessemer is a necessary party to this appeal, and in its absence the court is without jurisdiction to review the order of the circuit court dismissing the petition for certiorari.

Appeal is dismissed.

THOMAS, FOSTER, and LIVINGSTON, JJ., concur.

On Rehearing.

BROWN Justice.

The several sporadic cases cited by appellant, dealing with the question of necessary parties in the nisi prius court in a proceeding for the common law writ of certiorari, are beside the point on which the appeal was dismissed.

Appeals under the statute, are not ex parte and citation of appeal to the person adversely interested is essential to complete jurisdiction. Williams v. Harper, 95 Ala. 610, 10 So. 327; Ex parte Williams Riddlesperger v. Williams, 226 Ala. 619, 148 So. 323; Code 1923, §§ 6078, 6101; Lecat v. Salle,...