131 Ala. 663 | Ala. | 1901
The appeal by the Southern Railway Company from the order of the probate court made under section 1717 of the Code granting the application of the Birmingham, Selma &' New Orleans Railway Company to condemn a right of way for the tracks of the latter company across the tracks and right of way of the former company, having been taken under said section within thirty days and before an order of
Not lias the complainant any remedy at law in the premises for its protection from the acts of t-lie respondent complained of to which it should resort instead of proceeding as it has here proceeded by bill in chancery for injunctive relief. The probate court is not proceeding to the assessment of compensation, and hence there is no remedy by prohibition. It has already proceeded to such assessment and condemnation thereon, and there being nothing further for it to do or order in the matter, the writ of prohibition would be vain and nugatory; there is no threatened or contemplated or even possible action to be prohibited. This case is, therefore, wholly unlike that of Birmingham Railway & Electric Co. v. Birmingham Traction Co., 121 Ala. 475, and the latter is not an authority for the denial of a remedy by injunction in the present case on the ground that complainant had an adequate remedy at law. There the probate court was about to proceed to a final condemnation after appeal from the preliminary order, and all of the complaining parties’ rights could have been fully conserved by prohibiting that proceeding pending the appeal. Here, as we have said, there is no proceeding being taken or threatened in the probate court to be prohibited. There it was for the probate court to determine its own jurisdiction to proceed, and non constat but that it would determine that question correctly and decline to pr oceed further; and, of consequence, the chancery court had no power or jurisdiction to determine the question of jurisdiction for the probate court in anticipation of an erroneous solution of it by the probate court. Here the probate court has finally determined that it had jurisdiction to go on to final condemnation on the assessment of the commissioners, the pendency of the appeal to the contrary notwithstanding, and accordingly has appointed the assessors, received their report and thereon entered up the final order of condemnation; and this though such determination was erron
It is upon the foregoing considerations and authorities that, we rest our conclusion that the bill contains equity and that the injunction was properly issued in the first instance in accordance with its prayer. The order of the chancellor modifying the injunction was erroneous.
Therefore, on the appeaí of the Southern Railway Oo. the decree will be reversed and a decree will be here rendered, and on the appeal of the Birmingham, Selma & New Orleans Railway Oo. there will be an affirmance.