State ex rel. Wood v. Williams

McCLELLAN, C. J. From the passage of the act of February 28,1889, to the passage of the act of February 18,1891, the only appeal from the assessment of damages in ad quod damnum proceedings in the probate court Avas to the circuit court under the general provisions for appeals from the probate to the circuit court embodied in sections 3640 ert. seq. of the Code of 1886, as to the right to and manner of taking appeals, and in section 3619 of that Code, as to the time within which such appeals should be taken. — Woodward Iron Co. v. Cabaniss, 87 Ala. 328; Postal Tel. Cable Co. v. Ala. Gt. So. R. R. Co., 92 Ala. 331. But it was, of course, competent for the legislature to make special provisions for appeals in respect of ad quod damnum proceedings and thereby take such appeals out of the operation of laws dealing generally with appeals from the probate court or from orders, etc. of the judge of probate to. the circuit court; and this it clearly did do by the act mentioned last above, of Fejbruary 18, 1891. In the fourth section of that act 118 is the following provision: “Either party may appeal from the assessment of damages and compensation by the commissioners to the city or circuit court of the county, within thirty days after the making of the order of the commissioners, by filing in the court rendering the judgment,” etc., etc. And this provision, somewhat amplified in expression, is embodied in section 1720 of the Code of 1896 in these words: “Either party may appeal from the assessment of damages and compensation by the commissioners to the city or circuit court of the county within thirty days after the making of the order of condemnation upon the report of the commissioners, by filing in the court rendering the judgment a written notice of appeal,” etc., etc. Since the approval of the act of February 18, 1891, the foregoing has been, and it is now, the only provision of law for appeals from orders of condemnation entered by courts of probate in these proceedings, excluding, as it necessarily does, the application of the general law on the subject of appeals from the probate to the circuit to appeals in the special proceeding to which it relates. In the case at bar the order of condemnation upon the report of the commissioners was made and entered on June 1st, 1899. The defendant in the proceedings whose property was condemned filed in the probate court a notice of appeal on April 10th, 1900, acompanied by a sufficient bond for costs and applied for the allowance of an appeal from said order to the circuit court, for a duly certified transcript, etc., etc. This was months beyond the thirty days limited by section 1720 of the Code for taking an appeal from the order, and the judge of probate was clearly right in holding .that no appeal could then (be taken and in declining to approve the bond, certify a transcript, etc. The judgment of the circuit court denying the petition for mandamus will be affirmed. Affirmed.