Tallassee Falls Mfg. Co. v. Jones

128 Ala. 424 | Ala. | 1900

DOWDELL, J.

The appellant, the Tallassee Falls Manufacturing Company, filed its petition in vacation to the judge of the fifth judicial circuit, praying for a common law writ of certiorari to the probate court of Elmore county for the. purpose of reviewing certain atl quocl damnum proceedings luid before said probate court. The judge made an order granting the preliminary writ, making the .same returnable to the fall term, 1899, of (the circuit court of Elihore county. In obedience to said writ, the probate judge returned to the circuit court a complete transcript of all the proceedings had in said probate court. At the 'spring term, 1900, of said court, a judgment Avas rendered by said court quashing the said writ of certiorari, and from this judgment of the said circuit court the present appeal is prosecuted. The appellant, the Tallassee Falls Manufacturing Company, Avas not a party to the application for the ad quod damnmn, nor was it brought into the probate court by the return made by the jury of inquest, but after the report of the jury of inquest, and before the final ¡order was made thereon by the ¡probate court, it, (the said company), filed an affidavit of interest, with security for costs, under section 1744 of the Code, and at the same time it filed demurrers to the application for ad quod damnum.

The first question presented by this record for our consideration is as to whether the Tallassee Falls Manufacturing Company ever became a party to the proceedings in the probate court, the contention by the. ¡appellant being that 'it never became a party. This contention, we think, is without merit. While the record does not show any formal order was made by the probate court making the Tallassee Falls Company a party, yet avc think it clearly appears from the proceedings had in ¡said court, as shown by the present-record, as Avell as -from the conduct of the parties, that the Tallassee Falls Company was treated as a party. Where one voluntarily becomes a party to a proceeding, and is so treated by his adversary and the court hearing the cause, a formal order declaring him a party to the suit will not be deemed indispensable. As above stated, the appellant, at the time of making and filing the affidavit and ¡security for costs, under section 1744 filed its demurrers ito the application of the appellee, H. C. Jones. Thereupon the court made an order setting a day for the hearing of the contest, giving notice of the same to both the Tallassee Falls Company and the applicant for ad, quod damnum, IT. '0. Jones. On the day for the hearing the cause was continued to another day by agreement of parties. The subsequent proceedings were had upon the demurrers to the affidavit and amended affidavits filed by the Tallassee Falls Company, until the stage was reached where, as recited in the judgment entry, “the Tallassee Falls Manufacturing Company, declining to plead further it is ordered that the several grounds be and the same are hereby disalloived, and that it is not permitted-to 'contest said application on the grounds set forth in ■said affidavits and contest on file.” We think it quite evident that in the affidavit filed and as subsequently amended, from the course of the proceedings taken in the cause, that the parties, as well as the court; regarded such proceedings as a form of pleading in making up the issues of the contest. Although section 1744 provides that “In all applications under this article, any person making affidavit that he is interested against the same, and giving security for the costs if he fail to defeat such application, must, at any time before such application is granted, be permitted to make himself a party, and to contest the same;” still it is hardly to be questioned that after the making of such formal affidavit, whenever it is made known to the court that, notwithstanding such affidavit,, the party making the same is not. in fact, within the meaning of the statute, an interested party, it would become the duty of the court, by a proper order, to terminate such contest. If it were otherwise, by making the affidavit of interest, under the broad and latitudinous terms of the statute, which does not require any specific allegation as to interest, having once made such affidavit, would be let in to contest the application to the end, without having the slightest interest in the proceedings as contemplated by law. The Tallassee Falls Company, after being treated by the appellee, as well as the court, as a party, made known to the court the extent of its interests in the amended affidavits. By these affidavits it was shown that affiant had a cotton factory located three miles below the proposed site of the prospective dam in question in the ad quod damnum proceedings, t[ie danger from possible overflow being, not the result of backwater caused by said dam, but such only as might happen in the event of a sudden destruction of the dam precipitating in volume the water accumulated in storage by said dam. This is clearly not such an overflow resulting from the erection of the dam as contemplated in the statute. It is also averred in the affidavit that the dam may at intervals stop the water from flowing in its usual volume, but that is not such an injury to affiant as would make it an interested party within the meaning of any of the provisions of article 2, chap. 42 of the Code, relating to ad quod damnum proceedings. Frost v. Barnes, 47 Ala. 279; Creswell v. Commissioners’ Court, 24 Ala. 282; Parnell v. Commissioners’ Court, 34 Ala. 278.

There are other questions argued by counsel for the appellant, which we deem it unnecessary to consider, since they are such questions as only could be raised by a party interested within the meaning of the statute. We are of the opinion that the circuit court committed no error in the judgment quashing the writ of certiorari, and the. judgment will, therefore, be affirmed at the cost of the appellant.

Affirmed.