City of Anniston v. Hurt

• Decision Date: 31 May 1904
• Citation: 37 So. 220,140 Ala. 394
• Parties: MAYOR, ETC., OF CITY OF ANNISTON v. HURT.
• Court: Alabama Supreme Court

37 So. 220

140 Ala. 394

MAYOR, ETC., OF CITY OF ANNISTON v. HURT.

Supreme Court of Alabama

May 31, 1904

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Mandamus by J. W. Hurt; administrator of Sarah J. Hurt, against the mayor and city council of the city of Anniston. Judgment for plaintiff. Defendants appeal. Affirmed.

The prayer of the petition was that a writ of mandamus be issued directed to the mayor and city council of the city of Anniston, commanding them forthwith to set aside a sufficient amount of the surplus revenue of the city of Anniston to pay and satisfy the judgment recovered against said city by the petitioner's intestate, together with interest and costs and order the same to be paid as of the time of the collection of said revenue, and that the mayor and city council of Anniston be prohibited from paying out any of the revenue of said city, for interest on bonds and accounts until the judgment recovered by the petitioner's intestate, with interest and costs, were fully paid.

The respondents moved to quash the petition, and also demurred thereto upon several grounds, which may be summarized as follows: (1) For that the petition shows on its face that the petitioner has no legal right to enforce the payment of or collect judgment described in the petition. (2) For that said petition describes a judgment for personal injuries to the person of Sarah J. Hurt, recovered by her in her lifetime and there is no averment that said injuries resulted in her death or caused the same. (3) For that under the allegations of the petition it appears that the judgment was recovered on a cause of action which does not survive, but abates on the death of the plaintiff. (4) It does not appear that petitioner has any interest in, or legal right to, the judgment described in the petition, or right as administrator to collect the same. (5) The petition does not show a clear legal right to have any duty performed by the respondents, to or for the petitioner, or that any legal demand has been made, or that petitioner has no other adequate remedy for the enforcement of his supposed rights. (6) The petition shows on its face that the judgment described, abated before this petition was filed, and there was no judgment which could be enforced at the time said petition was filed, and, therefore, nothing on which to base this proceeding. (7) The averments of the petition show that the basis of this proceeding is a judgment which abated on the 4th day of October, 1902. (8) The petition shows that this is a proceeding to enforce a right, or supposed right, which does not exist. (9) The petition affirmatively shows that the petitioner has no clear legal right to demand the performance of any duty by these respondents. The motion to quash and the demurrer were each separately overruled.

After the respondents had filed their answer, the cause was submitted upon an agreed statement of facts, which was as follows: "It is agreed in this cause that if the item of $7,600 in the budget of said city for the fiscal year ending June 30, 1903, appropriated to pay interest on bonds and accounts, is held not to be a necessary current expense of the city of Anniston for said fiscal year, then there will be a surplus of said revenues for said fiscal year sufficient to pay and satisfy the judgment, interest and costs described in this cause, when said revenues are collected. It is also agreed that if said appropriation to pay said interest had not been made that the $7,600 was needed to pay necessary expenses on streets and other necessary expenses of the corporation."

Upon the hearing of the cause upon the agreed statement of facts, the court rendered judgment granting the relief to the petitioner, and ordered that a writ of mandamus issue as prayed for in the petition.

E. H. Hanna, for appellants.

Matthews & Whiteside, for appellee.

HARALSON J.

The petition in this case recites that Sarah J. Hurt in her lifetime, on the 9th of May, 1901, recovered a judgment against the city of Anniston, for the sum of $600 as damages for personal injuries received by her by reason of the negligence of the agents of the city, besides for $150.25 costs of suit. No appeal was taken from said judgment, and it stands unreversed and of force. Executions in her favor duly issued on said judgment and were returned unsatisfied.

It is shown, that on the 12th of July, 1902, the said Sarah J. Hurt filed in the circuit court of Calhoun county a petition for a mandamus against said city, for the purpose of enforcing the payment of said judgment with interest and costs; that on the 15th of July, 1902, a rule nisi was issued by the judge of said court, to the mayor and city council of said city returnable to the next term thereof; that on the 4th of October, 1902, the said Sarah J. Hurt died intestate, and on the 25th of that month, the petitioner, J. W. Hurt, was duly appointed as her administrator, and at a subsequent term of said court, he moved that said proceeding for mandamus be revived in his name as administrator, which order was on the 9th of May, 1903, refused, "on the ground, that the right of action abated with the...