Opinion

Fulmer v. Board of Zoning Adjustment of Hueytown

  • 286 Ala. 667
  • 244 So. 2d 797
  • 1971 Ala. LEXIS 852
Court
Supreme Court of Alabama
Filed
Feb 25, 1971
Status
Published
Author
Maddox
On the bench
Lawson, Merrill, Harwood, Heflin, Maddox
Cited by
4 cases

concurring opinion of Chief Justice Heflin

How later courts described this case

  • concurring opinion of Chief Justice Heflin

Written by the judges who cited it.

The opinion

MADDOX, Justice

(concurring specially)

I concur in the result reached that this cause should be reversed and remanded to the Circuit Court. As I read § 783 of Title 37, an aggrieved party may appeal from a decision by the Board of Adjustment by filing with the Board a written notice of appeal specifying the judgment or decision from which appeal is taken and once this notice is filed, as it was in this case, the cause is in the jurisdiction of the Circuit Court.

In my judgment, our statutes do not require that any petition or pleading be filed in the Circuit Court and I do not believe that the general rules of pleading set out in Article 3, Title 7, [§§ 212-217(1)] are applicable to appeals taken from judgments or decisions of Boards of Adjustment. A check of some of the original records of this Court involving appeals from decisions of Boards of Adjustment indicate that the general practice is that no additional pleadings are filed in the Circuit Court.

Since the trial is de novo, a settling of the issues could be required in the Circuit Court and I feel that the Legislature has granted authority to the Circuit Courts to make such requirements in Title 13, § 126, Code, which provides:

“The circuit court has authority:

* * * 6. To prescribe rules and regulations as to pleadings and practice, as to the time of filing and settling pleadings, and to make any orders, rules, and regulations, which must be spread on the minutes of the court, and to enforce the same, which may expedite the business of the court, when such orders, rules, or regulations are not contrary to the constitution and statutes of this state, or to the rules adopted by the supreme court. (1915, p. 608.)”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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