Opinion
8 Div. 536.
June 7, 1934. Rehearing Denied June 28, 1934.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Street Bradford, of Guntersville, for appellant.
Common-law certiorari is an appropriate, and often the exclusive, remedy for testing the validity of assessment proceedings, and the statutory appeal has not taken from the landowner the right to resort to the remedy by certiorari when the proceedings are void. Certiorari is a direct attack. N.C. St. L. Ry. v. Town of Boaz, 213 Ala. 667, 106 So. 192. Any interpolations or unauthorized additions by the town clerk to the record proper of the proceedings of the town council are void and will be ignored. N.C. St. L. R. Co. v. Town of Boaz, 226 Ala. 443, 147 So. 195; Cook v. Court Commissioners, 178 Ala. 394, 59 So. 483. Failure of the appellant to file with the town council an objection to the final assessment or failure to appeal does not prevent resort to common-law certiorari, which proceeds upon the theory that the assessment is void. N.C. St. L. Ry. v. Boaz, 213 Ala. 667, 106 So. 192; Grant v. Birmingham, 210 Ala. 239, 97 So. 731; Decatur v. Brock, 170 Ala. 149, 54 So. 209; Albany v. Spragins, 214 Ala. 449, 108 So. 32. A municipal assessment is void unless the record of the proceedings shows compliance with the important requirements of the statutes. 44 C. J. 621; Wilson v. City of Russellville, 209 Ala. 617, 96 So. 870; Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; Lott v. Ross, 38 Ala. 156; City Council v. Foster, 133 Ala. 587, 32 So. 610; Garner v. Anniston, 178 Ala. 430, 59 So. 654.
H. G. Bailey, of Boaz, for appellees.
This is a common-law certiorari. On this appeal, mere irregularities not affecting the town board's jurisdiction, and correctable by objections and appeal from adverse rulings by the board, will not be noticed. The court will inquire only whether the board had jurisdiction. N.C. St. L. R. Co. v. Boaz, 226 Ala. 441, 147 So. 195. Supplemental proceedings by the town board met the defects pointed out on former appeal. N.C. St. L. R. Co. v. Boaz, supra; Pierce v. Huntsville, 185 Ala. 490, 64 So. 301.
On a former appeal, Nashville, C. St. L. Ry. Co. v. Town of Boaz et al., 226 Ala. 441, 147 So. 195, 197, "The external regularity of the proceedings, relating to the adoption of the ordinance fixing the grade of Mill street, and the ordinance providing for the improvement," was affirmed, but the judgment of the circuit court affirming the proceedings in their entirety was reversed because the minutes of the board in respect to the meetings held on October 8, 1929, and October 31, 1929, were lacking in necessary recitals as to the making and filing of the roll of assessments and the notice thereof.
After remandment of the cause, the municipal board proceeded to retrace their steps and corrected the error in the proceedings pointed out on the former appeal and filed a supplemental return of the corrected proceedings in the circuit court. This return was recognized by the circuit court, and the court over the objection of the appellant affirmed the entire proceedings.
In Pierce v. City of Huntsville, 185 Ala. 490, 496, 64 So. 301, 303, it was observed: "We do not appreciate the necessity for a formal rescission of so much of a record as appears on its face to be infected with fatal fundamental error, nor do we see the necessity or occasion in such case of carrying the process of rehabilitation back further than the specific error appearing. There is no reason why steps properly taken previous to the error should be retraced. The integrity of the proceeding, the completeness of the record, due process according to the provision of the statute, and all the rights of property owners, may be preserved in the manner of procedure adopted in this case."
In response to the notice given in the supplementary proceedings, the appellant appeared, filed numerous objections, pointing out therein numerous alleged irregularities, not amounting to "fundamental errors" — failure of the proceedings to show jurisdiction of the res — and now insists that by so appearing and objecting it avoided statutory estoppel and is in a more favorable position than it was on the former appeal. The answer to this contention is that such objections are without avail in a proceeding by common-law certiorari to quash the proceedings. As to such irregularities the property owner must seek relief by appeal from the judgment of the board to the circuit court. Nashville, C. St. L. Ry. Co. v. Town of Boaz et al., supra; Pierce v. City of Huntsville, supra; Garner v. City of Anniston, 178 Ala, 430, 59 So. 654.
We find no reversible error in the record and proceedings of the circuit court.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.