Folmar v. Folmar

71 Ala. 136 | Ala. | 1881

BKIOKELL, O. J.

The statute under which these proceedings were had, devolves on the sheriff the duty of summoning the jury of inquest; not merely of citing or notifying, but of selecting the disinterested freeholders of the county who are to compose the jury. If it aj^peared that the sheriff had delegated to either party, applicant or contestant, the power of selecting the freeholders, or any or either of them, composing the jury, we will not say it would not be an error or irregularity, for which, on timely objection, the verdict of the jury should be quashed. That is not, however, the objection now made. The sheriff selected certain freeholders as members of the jury,, addressed to them a written notice to appear on a day named, at a place where the dam was to be erected, and entrusted the notice to the applicant to be served. The notice, it is infera-ble from the presence of these persons at the time and place appointed, was served, and the inquest had and reported to the judge of probate. The statute does' not prescribe any particular mode in which the jury was to be notified, and we can not. perceive that the mode adopted by the sheriff has, or could work injury to the contestant.

2. "When the former order of the judge of probate granting the application was reversed and the cause remanded, the order ceased to exist, and the cause stood in the plight and condition in which it would have been if the order had never been made. There, was no necessity that the probate judge should have entered of record the fact of the reversal of the order, or that he should have entered a revocation of it. The order having been reversed and annulled, was not of course pleadable in bar or in abatement of further proceedings on the application.

3. The order conforms to the requisitions of the statute, and is not obnoxious to any of the causes of demurrer assigned. The applicant is averred to be the owner of the land on each side of the stream; the land is described by sectional subdivisions, township and range; the name of the water-course, on which side the mill and gin were to be erected, the kind of mill and gin, and the height of the proposed dam are precisely stated; and this is all the statute requires the application to contain. Code of 1876, § 3558.

4. The purpose for which the witnesses Hawkins and Shows had examined the place where the dam was to be erected, it was permissible for them to state, as well as the character of the examination they made.

5. The jury returned their inquest to the probate judge, finding that about one acre of the land of the contestant would be injured and overflowed by the erection of the dam, and assessing the damages resulting therefrom. They further, by their findings, negatived all injuries mentioned in the statute (Code of 1876, § 3569), which, if affirmatively found, would have required that the application should have been rejected. In reference to these matters the judge of probate heard other evidence introduced by the applicant and contestant, and upon such evidence and inquest made an order authorizing the erection of the dam. It is obvious this court can not assume to revise and reverse the conclusions and findings of the judge, unless they were manifestly unsupported by the evidence, which is not now affirmed.-Nooe's Ex’r v. Garner’s Adm'r, 70 Ala. 443.

6. In all civil actions, under our statute, costs are taxed against the unsuccessful party. When the appellant intervened and contested the application to erect the dam, the proceedings assumed the form and character of a suit inter parries as well as m rem. The contestation being unsuccessful, he was properly adjudged to pay its costs. His wrongful contest created them.

Affirmed.