The several sporadic cases cited by appellant, dealing with the question of necessary parties in the nisi prius court in a proceeding for the common law writ of *Page 87 certiorari, are beside the point on which the appeal was dismissed.
Appeals, under the statute, are not ex parte and citation of appeal to the person adversely interested is essential to complete jurisdiction. Williams v. Harper, 95 Ala. 610,10 So. 327; Ex parte Williams Riddlesperger v. Williams, 226 Ala. 619,148 So. 323; Code 1923, §§ 6078, 6101; Lecat v. Salle, 1 Port., Ala., 287.
The City of Bessemer was the sole party defendant in the circuit court, so treated by the court and the parties, and answered and made motion to dismiss the petition on the ground that the appellant was estopped to assert that the probate court was without jurisdiction involving a question of fact. The court after hearing the evidence ruled, that inasmuch as an appeal had been taken to that court from the decree of the probate court in ad quod damnum proceedings, and the case was triable de novo on said appeal, the question of jurisdiction and alleged waiver could be presented on the hearing of that case, and in the exercise of the discretion inherent in the court, granted the motion and dismissed the petition.
The probable effect of the appeal was to annul the decree of the probate court and transfer the whole controversy to the circuit court. Cofer v. Reinschmidt, 121 Ala. 252, 25 So. 769. But that question is not presented here because the sole party adversely interested has not been served with process — citation of appeal — as required by the statute, hence the appeal was properly dismissed.
Opinion extended. Application overruled.
All Justices concur.