Wilkes v. Hawkins

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, ánd 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.