Donaghey v. Owen

4 Citing cases

  1. Riley v. Smyer

    91 So. 2d 820 (Ala. 1957)   Cited 6 times

    Venable v. Turner, 236 Ala. 483, 183 So. 644; Cassady v. Davis, 245 Ala. 93, 15 So.2d 909. Jurisdiction of the probate court in this case was properly invoked by filing of petition for inquisition of lunacy and appointment by the court of a guardian ad litem to represent and protect the interests of the non compos mentis, and jurisdiction having attached failure of the decree to ascertain that jurisdictional facts had been proved would not affect the validity of the decree. Code 1940, Tit. 21, §§ 9, 11, 15; Craft v. Simon, 118 Ala. 625, 24 So. 380; Pollard v. American Freehold Land Mortg. Co., 103 Ala. 289, 16 So. 801; Powell v. Union Bank Trust Co., 173 Ala. 332, 56 So. 123; Montgomery v. Montgomery, 236 Ala. 33, 180 So. 709. Where question of constitutionality of statute was not presented by record in lower court and is not necessary for determination of case on appeal it will not be considered. Klein v. Jefferson County Building Loan Ass'n, 239 Ala. 460, 195 So. 593; Donaghey v. Owen, 259 Ala. 376, 66 So.2d 895; Moses v. Tarwater, 257 Ala. 361, 58 So.2d 757; Doughty v. Tarwater, 261 Ala. 263, 73 So.2d 540. The probate court is one of general jurisdiction in appointment of guardian and in settlement of guardian's accounts, and its decrees after judicial determination cannot be collaterally attacked. Code 1940, Tit. 13, § 278; Merchants Nat. Bank v. Morris, 252 Ala. 556, 42 So.2d 240; Albright v. Creel, 236 Ala. 286, 182 So. 10; Taylor v. Dew, 236 Ala. 624, 184 So. 184.

  2. O'Bar v. Town of Rainbow City

    112 So. 2d 790 (Ala. 1959)   Cited 8 times
    Holding that the appellant, who operated a night club and cafe, did not have vested right in her operating license; although the state could not revoke the license arbitrarily, it could revoke the license when substantial evidence supported the action

    Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160., We, therefore, pretermit any review of the question of the constitutionality vel non of said statute for that such question will be considered on appeal only when it is properly presented. See Coleman v. Mange, 238 Ala. 141, 189 So. 749; Lane v. Bruner, 236 Ala. 269, 182 So. 5; City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551; Cooper v. State ex rel. Hawkins, 226 Ala. 288, 147 So. 432; Donaghey v. Owen, 259 Ala. 376, 66 So.2d 895. Appellant also urges error on the part of the trial court in excluding certain evidence.

  3. State v. Plantation Pipe Line Company

    265 Ala. 69 (Ala. 1956)   Cited 18 times

    We have a long line of cases which hold that the constitutionality of a statute will not be determined unless absolutely necessary to determine the merits of the suit in which the constitutionality of such statute has been drawn in question. Smith v. Speed, 50 Ala. 276; Shehane v. Bailey, 110 Ala. 308, 20 So. 359; Smith v. McQueen, 232 Ala. 90, 166 So. 788; State ex rel. Bland v. St. John, 244 Ala. 269, 13 So.2d 161; Moses v. Tarwater, 257 Ala. 361, 58 So.2d 757; Donaghey v. Owen, 259 Ala. 376, 66 So.2d 895. See Alabama State Federation of Labor, Local Union No. 103, etc., v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725.

  4. City of Talladega v. Ellison

    262 Ala. 449 (Ala. 1955)   Cited 12 times
    Stating that a court may decline to interfere in cases in which only nominal damages are involved based on the de minimis non curat lex doctrine

    We have carefully examined the record and do not find that the constitutionality of any section of Art. 4, Chapter 15, Tit. 37, supra, was presented in the lower court; nor do we find it necessary to determine the constitutionality of any of those sections in order to determine this appeal. Therefore, consideration of the constitutional questions must be pretermitted. Donaghey v. Owens, 259 Ala. 376, 378, 66 So.2d 895, and cases there cited. We have said that a constitutional question "cannot be raised for the first time in a brief only."