Barret v. City of Mobile

CourtSupreme Court of Alabama
Writing for the CourtSHARPE, J.
Citation129 Ala. 179,30 So. 36
Decision Date18 April 1901
PartiesBARRET v. CITY OF MOBILE ET AL.

30 So. 36

129 Ala. 179

BARRET
v.
CITY OF MOBILE ET AL.

Supreme Court of Alabama

April 18, 1901


Appeal from circuit court, Mobile county; William S. Anderson, Judge.

Action by Kate W. Barret against the city of Mobile and others. Judgment for defendant, and plaintiff appeals. Reversed.

The complaint, as originally filed, contained three counts. The first count was for trespass, in the Code form, for wrongfully taking one mule, the property of the defendant. The second count was in trover, and was in Code form for the wrongful conversion by the defendants of one mule. The third count of the complaint was a special count, and was in words and figures as follows: "(3) Plaintiff claims of the defendants one hundred and twenty-five dollars damages for that on, to wit, the 8th day of August, 1898, she was the owner of a mule, of the value of one hundred and twenty-five dollars. Plaintiff avers that the municipal Code of the city of Mobile provides that 'upon the complaint of the health officer that a horse has glanders and is dangerous to the health of man or beast, or that any animal is diseased and thus dangerous, or any object is a nuisance and dangerous to health and safety of man or beast in the city, the recorder shall take the evidence of two disinterested and reputable citizens, and may thereupon, if satisfied such complaint is well founded, in his discretion issue a warrant, directed to any police officer, requiring him to enter upon the premises where such animal or object is, and under the direction of the health officer remove it, alive or dead, to a place of safety. Such warrant shall also authorize the officer, if so directed by the health officer for prudential reasons, to kill an infected animal before removal.' Plaintiff further avers that the defendant Rhett Goode was on the day aforesaid health officer of the said city of Mobile. Plaintiff further avers that on the day aforesaid the said defendant Rhett Goode, acting as such health officer for and on behalf of the said city of Mobile, ordered the said mule of plaintiff to be killed, and said mule was killed by a police officer in obedience to such order. Plaintiff further avers that there was no complaint made by said health officer to the recorder, as provided by said municipal law; nor was there any evidence taken before the recorder of disinterested and reputable citizens that said mule had glanders and was dangerous to the health of man or beast, or was diseased and was thus dangerous, as is also provided by such ordinance; nor was there any warrant directed by the recorder, after an investigation by him, to any police officer, requiring him to kill said animal, as is also required by law." To the entire complaint the city of Mobile demurred, upon the ground that the complaint fails to allege that said claim was presented to the general council of the city of Mobile as required under the charter of said city. This demurrer of the city of Mobile was sustained. Thereafter, upon motion of the city of Mobile, it was ordered that the cause be dismissed as to the city of Mobile. The defendant Rhett Goode then filed two pleas, which were as follows: "(1) The defendant Rhett Goode, for answer to the complaint, saith he is not guilty of the matters alleged therein. (2) And now comes the defendant in this cause, and for further plea in this behalf says actio non, because he says that said horse was afflicted with glanders, an infectious and contagious disease, and that he ordered the same killed, as the executive officer of the board of health of Mobile county, as he was required to do under the laws of Alabama." Issue was joined upon these two pleas. The plaintiff introduced witnesses who testified that the mule belonging to the plaintiff, valued at from $150 to $200, was killed by one Gilroy, an officer of the city of Mobile; that when said Gilroy came to kill the mule he stated that he was acting under the orders of Dr. Rhett Goode, health officer of the city of Mobile. After the introduction of this testimony, the plaintiff moved the court to strike out the third count of the complaint, which was granted without objection on the part of the defendant. Thereupon the defendant moved the court for leave to withdraw his special plea, numbered 2, which motion was granted, without objection on the part of the plaintiff. The evidence for the defendant tended to show that the mule which was...

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51 practice notes
  • Williams v. Kitchens, 7 Div. 204
    • United States
    • Supreme Court of Alabama
    • August 30, 1954
    ...v. Pierce, 118 Ala. 273, 302-306, 24 So. 984, 45 L.R.A. 66, 72 Am.St.Rep. 160. As thus stated in Haney v. Legg, supra [129 Ala. 619, 30 So. 36]: 'The principle applicable to this phase of the case is clearly stated in a note in 2 Perry, Trusts (5th Ed.) to section 865 in this language: 'Whe......
  • Brown v. Salt Lake City, 1878
    • United States
    • Supreme Court of Utah
    • January 9, 1908
    ...Falls, 66 Hun 136; Susengeth v. Randout, 48 Wis. 334; Wentworth v. Simons, 60 Wis. 381; Dorsey v. Racine, 60 Wis. 292; Barrett v. Mobile, 129 Ala. 179; Columbus v. Daniel, 117 Ga. 823; Jewell v. Ithaca, 72 A.D. 220; Smith v. N.Y., 88 A.D. 606; Silger v. N.Y., 88 N.Y.S. 1003; Reining v. Buff......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...81 So. 71; L. & N. R. R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Finch's Executors v. Alston, 2 Stew. & P. 83, 86, 23 Am. Dec. 299......
  • Williams v. City of Jacksonville
    • United States
    • United States State Supreme Court of Florida
    • March 7, 1935
    ...defective streets; in others, it includes personal injuries of all kinds; and in still others, all actions of tort. Barrett v. Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Kenyon v. Cedar Rapids, 124 Iowa, 195, 99 N.W. 692; Bancroft v. San Diego, 120 Cal. 432, 52 P. 712; Springer v.......
  • Request a trial to view additional results
51 cases
  • Williams v. Kitchens, 7 Div. 204
    • United States
    • Supreme Court of Alabama
    • August 30, 1954
    ...v. Pierce, 118 Ala. 273, 302-306, 24 So. 984, 45 L.R.A. 66, 72 Am.St.Rep. 160. As thus stated in Haney v. Legg, supra [129 Ala. 619, 30 So. 36]: 'The principle applicable to this phase of the case is clearly stated in a note in 2 Perry, Trusts (5th Ed.) to section 865 in this language: 'Whe......
  • Brown v. Salt Lake City, 1878
    • United States
    • Supreme Court of Utah
    • January 9, 1908
    ...Falls, 66 Hun 136; Susengeth v. Randout, 48 Wis. 334; Wentworth v. Simons, 60 Wis. 381; Dorsey v. Racine, 60 Wis. 292; Barrett v. Mobile, 129 Ala. 179; Columbus v. Daniel, 117 Ga. 823; Jewell v. Ithaca, 72 A.D. 220; Smith v. N.Y., 88 A.D. 606; Silger v. N.Y., 88 N.Y.S. 1003; Reining v. Buff......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...81 So. 71; L. & N. R. R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Finch's Executors v. Alston, 2 Stew. & P. 83, 86, 23 Am. Dec. 299......
  • Williams v. City of Jacksonville
    • United States
    • United States State Supreme Court of Florida
    • March 7, 1935
    ...defective streets; in others, it includes personal injuries of all kinds; and in still others, all actions of tort. Barrett v. Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Kenyon v. Cedar Rapids, 124 Iowa, 195, 99 N.W. 692; Bancroft v. San Diego, 120 Cal. 432, 52 P. 712; Springer v.......
  • Request a trial to view additional results

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