Williams v. Jefferson County

Citation261 Ala. 76,72 So.2d 920
Decision Date20 May 1954
Docket Number6 Div. 710
PartiesWILLIAMS v. JEFFERSON COUNTY.
CourtSupreme Court of Alabama

Wm. H. Ellis, Birmingham, for appellant.

Maurice F. Bishop, Birmingham, for appellee.

PER CURIAM.

This is an appeal from a judgment of the circuit court dismissing appellant's appeal to that court from certain judgments or orders of the probate court in the matter of condemnation proceedings by the county, appellee here.

The petition for condemnation of a large number of tracts was dated October 6, 1952 and presumably filed on that day. This proceeding has to do with tract No. 13.--See Title 19, section 8 of the Code. There are five persons named as interested in that tract. Petitioner later amended the petition by adding this appellant, W. T. Williams as the claimant of an interest in tract No. 13.

On November 10, 1952 the probate court made an order granting the petition as amended, including tract No. 13, and appointed commissioners to assess the damages and compensation to which the parties interested in the various tracts are entitled for an easement sought to be taken for highway purposes. On November 28, 1952, the commissioners made their report as to tract No. 13, fixing an award of $4100.25, and named the six persons as claimants including this appellant.

On January 21, 1953 a decree was rendered in the probate court, adjudging that the county having paid the full amount of damages and compensation assessed by the commissioners, has an easement and right of way for public road and highway purposes over the various tracts, including tract No. 13. Thereupon, on February 18, 1953, this appellant, a claimant in respect to tract No. 13, filed an application in the probate court praying that it determine the amount due him under the law in such cases and distribute same to him.

On the same day the three Warren claimants of tract No. 13 filed a demurrer to the petition of appellant, Williams, for distribution to him of his share of the assessment paid by the county. Also on that day said demurrer came on for hearing in the probate court, and was sustained by the court, and the petition was denied.

On February 19, 1953 this appellant filed in said probate court a notice of appeal 'from the following separately and severally:

'1. The order of condemnation heretofore rendered herein.

'2. The report of the commissioners heretofore rendered herein.

'3. The decree dated February 18, 1953 sustaining demurrer to W. T. Williams' petition for apportionment and distribution of funds.' (It did not appeal from that portion of the decree denying the petition.) It was therein said to apply to tract No. 13.

One above refers to the order of condemnation dated January 21, 1953: two above refers to the report of the commissioners dated November 28, 1952; and three above to the decree sustaining the demurrer to the petition of appellant Williams which was dated February 18, 1953. The notice of appeal dated February 19, 1953 did not state to what court the appeal was intended to be taken. Notice of appeal by Williams was given to the other claimants of tract No. 13, and states that it was taken to the circuit court.

On February 18, 1953 the three Warren claimants filed notice of appeal from the decree of January 21, 1953.

On February 19, 1953 the probate court entered an order granting the appeal of W. T. Williams. On the same day the probate court made an order that the appeal of the three Warren claimants of tract No. 13 was granted. On October 21, 1953, Jefferson County filed in the circuit court a motion 'to dismiss the appeals heretofore filed in said cause by the respondents separately and severally' for grounds stated in substance as follows:

1. That no appeal was taken or attempted to be perfected from the order or decree granting the petition.

2. That the duly appointed commissioners had on November 28, 1952 made their award of $4100.25.

3. That Jefferson County on January 21, 1953 paid in the probate court said sum of $4100.25.

4. That W. T. Williams filed a petition for an apportionment and distribution of funds among the parties pursuant to Title 19, section 26, Code, and the other claimants of tract No. 13 demurred to the petition of Williams. The probate court adjudged and determined said claim and proceeded to hear and determine the claims of the respondents under sections 26 and 27 of Title 19.

5. That following said determination of the claims to said fund respondents filed notice of appeal to the circuit court from the decree or order of condemnation rendered on said January 21, 1953 as to tract No. 13.

6. That the respondents waived their right to appeal from the decree of January 21, 1953 by filing said claim under sections 26 and 27, Title 19, and submitting to the jurisdiction of the court in regard to a distribution under the decree of January 21, 1953.

7. That if the appeals are from the decree under sections 26 and 27, supra, then the appeals are not perfected in the manner required by the statute and none of the respondents had deposited any security for costs of appeal. An appeal from a decree under sections 26 and 27, supra, would have to be perfected in the manner provided for appeals in the general appeal statutes from orders of the probate court and no such action was taken by any of the respondents.

On October 21, 1953 W. T. Williams demurred to that motion, and on the same day the court overruled the demurrer and dismissed his appeal to that court. There was then a trial by a jury on the appeal of the other claimants of tract No. 13 (including the two Terrell claimants who had not appealed), and the award of the commissioners was sustained. The amount of the damages and compensation for those five claimants of tract No. 13 was fixed at $4100.25, and the court thereupon granted the easement sought to be condemned.

Williams then moved the court to set aside the decree dismissing his appeal, also the verdict of the jury and judgment granting the condemnation and awarding damages to the other five claimants of tract No. 13. This motion was duly continued from time to time and finally on December 31, 1953 was overruled. On January 29, 1954 an appeal was taken to this court by W. T. Williams giving security for costs of appeal.

The assignments of error are:

1. The decree overruling appellant's demurrer to the motion to dismiss his appeal to the circuit court.

2. The decree dismissing said appeal.

3. Overruling his motion for a new trial.

With respect to the first assignment of error, it is sufficient to note that a demurrer to a motion to dismiss is inappropriate and a ruling on such a demurrer is not reviewable on appeal. Dulin v. Johnson, 216 Ala. 393(10), 113 So. 397; Linn v. Linn, 242 Ala. 688, 8 So.2d 187; Scott v. Leigeber, 245 Ala. 583, 18 So.2d 275.

The second assignment of error presents the controversy between the parties on this appeal since the third assignment presents nothing new. As we have stated above the appeal taken by Williams to the circuit court was in the form of a notice that 'he appeals from the following separately and severally':

1. The order of condemnation heretofore rendered. (We take that to mean the final decree of the probate court dated January 21, 1953, supra.)

2. The report of the commissioners heretofore rendered herein. (That report is not subject to appeal. So that it may be cast aside without further consideration.)

3. The decree dated February 18, 1953 sustaining demurrer to his petition for apportionment.

On February 18, 1953 an appeal to the circuit court was taken by the three Warren claimants from the decree of the probate court entered on January 21, 1953. That appeal had the effect of causing a trial to be had de novo in the circuit court under section 17, Title 19, Code, and that trial was for the purpose of determining whether or not an order was proper to grant the application for condemnation under section 7, Title 19, Code, and also for the purpose of fixing the amount of just compensation to be ascertained and assessed. That appeal necessarily completely vacated the decree which had been rendered by the probate court on January 21, 1953, and that included all proceedings thereafter had upon the basis of the continuing existence of that decree, which means that any proceeding in the probate court for a distribution of the funds under section 26, Title 19 was withdrawn from the probate court and became invested in the circuit court. City of Birmingham v. Hudson, 222 Ala. 332, 132 So. 1.

We revert to the inquiry of whether the judgment of the circuit court dismissing the appeal taken by W. T. Williams to that court is reversible error on the appeal of said Williams to this Court.

The first ground of the motion to dismiss is based on the fact that no appeal was taken from the preliminary order granting the petition to condemn and appointing commissioners. Section 7, Title 19, Code. Appellee cites in support of that ground of the motion some old decisions which were based upon that statute, but at a time when it in express terms provided for an appeal from that order. After those decisions the statute was amended so as to eliminate the provision for an appeal. Since then an appeal is not available from such an order. But under section 17, Title 19 an appeal to the circuit court is provided for from an order of condemnation, when the trial will be de novo, and when the court will review, if desired, the preliminary order made under section 7, supra. Mobile & B. R. Co. v. Louisville & N. R. Co., 192 Ala. 136, 68 So. 905; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305; Denson v. Board of Trustees of University, 247 Ala. 257, 23 So.2d 714; State ex rel. Burns v. Phillips, 250 Ala. 120, 33 So.2d 239. The motion to dismiss cannot be sustained on that ground.

The second and third grounds of the motion seem to need no discussion.

The fourth ground of the motion goes to the theory that W. T....

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13 cases
  • Jefferson County v. Adwell, 6 Div. 809
    • United States
    • Supreme Court of Alabama
    • June 30, 1956
    ...first mortgage on the property. This situation here is entirely different from that presented in the case of Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920. I would affirm the judgment of the trial SPANN, J., concurs in the foregoing. On Rehearing Justice STAKELY and GOODWYN concur......
  • City of Dothan v. Wilkes, 4 Div. 968
    • United States
    • Supreme Court of Alabama
    • August 13, 1959
    ...should be allowed and paid to Billy Yongue, the owner of the leasehold interest in the said tract; * * *.' In Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920, recognition was given to the rule that where leased property is acquired by eminent domain, owner and lessee both have an in......
  • Government of VI v. 4738 SQUARE FEET OF LAND, Civ. No. 586/1993.
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • February 14, 1995
    ...v. United States, 164 F.2d 866 (8th Cir.1947), cert. denied 334 U.S. 815, 68 S.Ct. 1070, 92 L.Ed. 1745 (1948); Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920 (1954). The right of the owner of the leasehold interest to compensation is not affected by any agreement made by the condem......
  • Calhoun County v. Logan, 7 Div. 156
    • United States
    • Supreme Court of Alabama
    • February 24, 1955
    ...also the right to condemn under section 7, Title 19, Code. City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305; Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920. An appeal may be taken to the Supreme Court from the judgment of the circuit court. Section 23, Title 19, Section 24, T......
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