Fetters v. City of Hoover

518 So. 2d 55, 1987 Ala. LEXIS 4640, 1987 WL 1404
CourtSupreme Court of Alabama
DecidedOctober 2, 1987
Docket85-419, 85-679
StatusPublished
Cited by1 cases

This text of 518 So. 2d 55 (Fetters v. City of Hoover) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fetters v. City of Hoover, 518 So. 2d 55, 1987 Ala. LEXIS 4640, 1987 WL 1404 (Ala. 1987).

Opinions

ADAMS, Justice.

These consolidated appeals are from an order of the Probate Court of Jefferson County, certifying the results of an October 8, 1985, election called by the City of Hoover regarding an attempted annexation of certain land and from a circuit court order denying a writ of prohibition and quo warranto relief. The plaintiffs, A.M. Fetters and Malcolm Cook (hereinafter both shall be referred to simply as “Fetters”), argue that the probate court was without jurisdiction to call the election and certify its results. Fetters argues that, because the probate court lacked jurisdiction, the circuit court erred in not granting a writ of [56]*56prohibition prior to the election and in not granting the complaint and information in the nature of quo warranto after the election. We disagree. We affirm the judgments of the probate court and the circuit court.

The facts in this case are as follows:

On August 23, 1985, the City of Hoover filed a petition requesting that the Probate Court of Jefferson County call an annexation election pursuant to § 11-42-1 et seq., Code of Alabama (1975). Attached to the petition were the map of the proposed area, a copy of the resolution of the Hoover City Council certified by the city clerk, and a legal description of property proposed to be annexed. Hoover also filed a copy of its amended resolution, which was certified by the city clerk. On August 26,1985, Hoover filed petitions with the probate court purporting to comply with the annexation statute.

On September 4, 1985, the City of Home-wood filed a motion to strike the resolution. As the basis for its motion, Homewood claimed that a portion of the property that was the subject of the petition was within Homewood. On September 5, 1985, Hoover filed a second amended resolution and a new map, which was certified by the city clerk. The City Council of Hoover authorized its attorney to file a certified copy of the resolution with the Judge of Probate.

On September 16, 1985, Fetters filed with the probate court a motion to deny the order of election. As a basis for his motion, Fetters alleged the following:

1. That the Mayor of the City of Hoover had not certified the resolution filed by Hoover with the Judge of Probate;

2. That Hoover had failed to comply with the requirement that 60 percent of the property owners, or two qualified electors of each quarter-quarter section, by petition, assent to the inclusion of their property in the territory proposed to be annexed;

3. That none of the persons who had signed the petitions filed with the court assented to the territory set out in the new map; and

4.That the legal description did not meet the requirements of metes and bounds.

The motion was amended to allege that the map of the territory contained property that had already been legally annexed by the City of Vestavia.

The probate court found the following:

1. That a certified copy of the resolutions had been filed;

2. That the property was described by an accurate description of metes and bounds;

3. That the map did not embrace any territory within the corporate limits of any other municipality;

4. That the statutory requirement of two qualified electors or 60 percent of the owners of the acreage had been met.

On October 1, 1985, Homewood filed a motion to strike the resolution requesting an order calling the election. Homewood asserted in its motion essentially the same grounds that Fetters had raised. On October 2,1985, Fetters filed in the circuit court a petition for a writ of prohibition against the probate judge and the City of Hoover. In his petition, Fetters alleged a lack of jurisdiction and asserted the aforementioned grounds.

On October 4, 1985, the Circuit Court of Jefferson County entered a preliminary injunction restraining and enjoining the probate court from certifying the results of the annexation election. The election was held on October 8, 1985. After the election, Fetters amended his petition to add a complaint in the nature of quo warranto and asserted essentially the same grounds.

On November 25, 1985, the injunction was dissolved and the petition for writ of prohibition was dismissed. On the same day, Hoover amended its map to delete the parcels that had previously been annexed into other municipalities. On November 26, 1985, Fetters filed another complaint and information in the nature of quo war-ranto, and asserted essentially the same grounds.

On December 2, 1985, after the preliminary injunction was dissolved, the probate [57]*57court entered an order certifying the election results. On January 15, 1986, Hoover filed with the probate court a resolution, certified by the city clerk amending the maps and records previously filed with the office of the Judge of Probate to delete territory previously annexed into the cities of Homewood, Vestavia, and Birmingham.

On appeal, Fetters raises several issues concerning alleged noncompliance by Hoover with statutory annexation procedures. Because of this noncompliance, Fetters argues that the probate court lacked jurisdiction to call the election. He further argues that the geographical description failed to meet the statutory mandates of a metes and bounds description and that the statute prohibited annexation of separate nonconti-guous areas. Because of these alleged faults with Hoover’s annexation, Fetters argues, the circuit court should have granted his writ of prohibition. He further argues that because the injunction was dismissed, the circuit court should have granted his complaint and information in the nature of quo warranto.

I.

Fetters first argues that the probate court lacked jurisdiction to order an annexation election. As a basis of his argument, he claims that Hoover failed to comply with § 11-42-2, Code of Alabama (1975), in'that the mayor of Hoover failed to certify the resolutions of the city council, and that Hoover failed to comply with § 11-42-2(10), Code of Alabama (1975), by failing to file petitions assenting to the amended maps filed by Hoover.

Section 11-42-2, provides, in part:
Whenever the council shall pass a resolution to the effect that the public health or public good requires that certain territory (described in the resolution) shall be brought within the limits of the city or town:
(1) It shall be the duty of the mayor to certify a copy of such resolution to the judge of probate of the county in which the land proposed to be annexed is situated, and said certified resolution shall have attached thereto a plat or map of said territory, which certified resolution and plat or map shall be filed by the judge of probate.

On August 23, 1985, Hoover filed a petition with the probate court calling for an annexation election. This petition, which was signed by the mayor of Hoover, made specific reference to the resolutions. Although the resolutions were signed and certified by the city clerk rather than the mayor, because of the reference contained within the petition, Hoover substantially complied with the statute.

Fetters argues that Hoover was required to file with the probate court new petitions that assented to the amended maps, which were filed after the original petition.

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Related

City of Birmingham v. City of Vestavia Hills
654 So. 2d 532 (Supreme Court of Alabama, 1995)

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Bluebook (online)
518 So. 2d 55, 1987 Ala. LEXIS 4640, 1987 WL 1404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fetters-v-city-of-hoover-ala-1987.