Anderson v. City of Birmingham

Citation177 Ala. 302,58 So. 256
PartiesANDERSON v. CITY OF BIRMINGHAM ET AL.
Decision Date08 February 1912
CourtSupreme Court of Alabama

Rehearing Denied April 25, 1912.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Hattie I. Anderson against the City of Birmingham and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The gravamen of the charge is that, in grading and erecting an embankment along Twenty-Sixth street, defendants stopped and prevented the natural flow of the surface water, which gathered and ran over and upon and through and from plaintiff's said property abutting on said street, and caused the said surface water to pond, settle, and stagnate upon the premises, to her great damage and injury. The fourth plea was that plaintiff failed to present her claims for damages described in the complaint to the clerk of the city court of Birmingham before filing the suit in this cause.

Allen &amp Bell, of Birmingham, for appellant.

Romaine Boyd, of Birmingham, for appellees.

DOWDELL C.J.

Section 1191 of the Code of 1907, which provides that "all claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred"--is a statute of nonclaims and is unlike the provisions contained in section 36 of the old charter of the city of Birmingham (Acts 1890-91, p. 149), construed in Newman v. Mayor & Aldermen, 109 Ala. 630, 19 So. 902, which made the presentation of the claim a prerequisite to the commencement of a suit.

The statute under consideration is analogous to the statute requiring the presentation of claims to an administrator within a prescribed period, or the same be barred. In such cases, presentation is not a prerequisite to the bringing of a suit; and, if a suit be commenced within the prescribed period, it is a sufficient presentation. Floyd v Clayton, Ex'r, 67 Ala. 265. In the present case, the suit was begun within six months (the prescribed period) of the accrual of the claim sued on.

The fourth plea furnished no ground of defense to the action; and the trial court consequently erred in overruling the plaintiff's demurrer to this plea.

There are two other assignments of error; but they each...

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17 cases
  • City of Huntsville v. Goodenrath
    • United States
    • Alabama Court of Appeals
    • February 9, 1915
    ...applicable to administrators, and that a failure to file the claim is defensive matter properly available only by plea. Anderson v. Birmingham, 177 Ala. 303, 58 So. 256; Birmingham v. Darden, 1 Ala.App. 479, 55 So. Hence it was not necessary for the complaint in this case to allege a filing......
  • Rice v. Tuscaloosa County, 6 Div. 800.
    • United States
    • Supreme Court of Alabama
    • October 30, 1941
    ...... well supported by the authorities. . . The. case of Montgomery County v. City of Montgomery, 195. Ala. 197, 70 So. 642, is conclusive on this point. That case. was an action ... statute of limitations, but is one of nonclaims (Anderson. v. City of Birmingham, 177 Ala. 302, 58 So. 256), and is. analogous to the statute requiring ......
  • Orenberg v. Thecker, 8594.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 26, 1944
    ...v. Union Sav. Bank, 65 Neb. 97, 100, 90 N.W. 994, 995; Escher v. Carroll County, 146 Iowa 738, 742, 125 N.W. 810, 812; Anderson v. Birmingham, 177 Ala. 302, 58 So. 256; Keys v. Keys' Estate, 217 Mo. 48, 65, 116 S.W. 537, 8 In re Adoption of a Minor, 78 U.S. App.D.C. 48, 136 F.2d 790. 9 Norr......
  • Downs v. City of Birmingham, 6 Div. 710
    • United States
    • Supreme Court of Alabama
    • October 17, 1940
    ......And its interpretation of that. power is sharply criticised in Jameson on Constitutional. Conventions. Section 554, pages 584 et seq. This is. considered by this Court high authority on the subject. See,. Ex parte Birmingham & Atlantic Ry. Co., supra, in which. Justice Anderson reviews the value of this work. We are clear. that it does not put a limitation on the power of amendment. of the Constitution, but on the power of legislation. . . We find. no other feature of the Constitution which is supposed to. limit the nature of amendments to it affecting ......
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