WILKES v. HAWKINS

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Docket Number

6 Div. 629.

Attorney(S)

Horace C. Wilkinson, of Birmingham, for appellant. H. H. Sullinger and G. H. Bumgardner, both of Bessemer, for appellee.

Judges

BROWN, Justice.

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Smart Summary

Factual and Procedural Background

This appeal arises from a condemnation proceeding initiated by the City of Bessemer to acquire a right of way over appellant Wilkes's land for the construction and maintenance of a power line. Wilkes sought the common law writ of certiorari in the circuit court to review and quash the Probate Court's judgment in the ad quod damnum proceeding. The circuit court dismissed Wilkes's petition, and Wilkes appealed that dismissal.

Legal Issues Presented

Whether the Probate Court had jurisdiction over the subject matter and parties in the condemnation proceeding.
Whether Eugene Hawkins, as Judge of Probate, was a proper party to the certiorari proceeding.
Whether the appeal could proceed in the absence of the City of Bessemer as a party and whether jurisdiction existed without citation of appeal to the adverse party.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Independent Publishing Company v. American Press Association, 102 Ala. 475, 15 So. 947	Scope of inquiry on certiorari limited to external validity and jurisdiction of Probate Court.	Used to establish that the certiorari proceeding reviews only jurisdictional issues of the Probate Court record.
Nashville, C. St. R. Co. v. Town of Boaz, 226 Ala. 441, 147 So. 195	Scope of certiorari review and jurisdictional limitations.	Supported the limitation of inquiry to jurisdictional issues in the Probate Court proceedings.
St. John et al. v. Richter et al., 167 Ala. 656, 52 So. 465	Proper parties to certiorari proceedings and limitations on who may be joined.	Held that the Judge of Probate was not a proper party to the certiorari proceeding.
Williams v. Harper, 95 Ala. 610, 10 So. 327	Requirement of citation of appeal to adversely interested parties for jurisdiction.	Confirmed that citation to the adverse party is essential to confer jurisdiction on appeal.
Ex parte Williams Riddlesperger v. Williams, 226 Ala. 619, 148 So. 323	Appeals are not ex parte; citation is required to complete jurisdiction.	Reinforced the necessity of serving process on the adverse party for appeal jurisdiction.
Cofer v. Reinschmidt, 121 Ala. 252, 25 So. 769	Effect of appeal on prior Probate Court decree.	Noted that an appeal would annul the Probate Court decree and transfer the controversy to circuit court.

Court's Reasoning and Analysis

The court analyzed the procedural posture and the parties involved in the appeal. It determined that the Judge of Probate, Eugene Hawkins, was not a proper party to the certiorari proceeding since he had no pecuniary interest and was not a party to the original condemnation proceeding. The court emphasized that the City of Bessemer, as the party who instituted the condemnation, was a necessary party to the appeal. The absence of the City of Bessemer deprived the court of jurisdiction to review the circuit court’s dismissal. Furthermore, the court explained that appeals under the statute require citation of appeal to the adversely interested party to confer jurisdiction, which had not occurred here. The circuit court's dismissal was therefore proper. On rehearing, the court extended its opinion to clarify that the question of jurisdiction and waiver could be addressed in the de novo appeal from the Probate Court decree, but since the City of Bessemer was not served, the appeal was properly dismissed for lack of jurisdiction.

Holding and Implications

The appeal is dismissed.

The direct effect of this decision is that the appellant's petition for certiorari review was dismissed due to lack of jurisdiction caused by the absence of the necessary party, the City of Bessemer. No new precedent was established; the ruling reaffirms existing principles regarding necessary parties and procedural requirements for appeals, particularly the necessity of citation to adversely interested parties to confer jurisdiction.

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WILKES v. HAWKINS, Judge.

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, 1 Port., Ala., 287.

The City of Bessemer was the sole party defendant in the circuit court, so treated by the court and the parties, and answered and made motion to dismiss the petition on the ground that the appellant was estopped to assert that the probate court was without jurisdiction involving a question of fact. The court after hearing the evidence ruled, that inasmuch as an appeal had been taken to that court from the decree of the probate court in ad quod damnum proceedings, and the case was triable de novo on said appeal, the question of jurisdiction and alleged waiver could be presented on the hearing of that case, and in the exercise of the discretion inherent in the court, granted the motion and dismissed the petition.

The probable effect of the appeal was to annul the decree of the probate court and transfer the whole controversy to the circuit court. Cofer v. Reinschmidt, 121 Ala. 252, 25 So. 769. But that question is not presented here because the sole party adversely interested has not been served with process — citation of appeal — as required by the statute, hence the appeal was properly dismissed.

Opinion extended. Application overruled.

All Justices concur.