City of Birmingham v. Darden

• Decision Date: 18 May 1911
• Citation: 55 So. 1014,1 Ala.App. 479
• Parties: CITY OF BIRMINGHAM v. DARDEN.
• Court: Alabama Court of Appeals

55 So. 1014

1 Ala.App. 479

CITY OF BIRMINGHAM v. DARDEN.

Court of Appeals of Alabama

May 18, 1911

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

Action by Thea Darden, originally brought against the Town of East Lake, in which, after an extension of the city limits so as to include the town, the City of Birmingham was made sole defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

R. H. Thach, for appellant.

Bowman Harsh & Beddow, for appellee.

PER CURIAM.

This is an action by the appellee for damages resulting from the maintenance of a nuisance. The action was originally against the town of East Lake, a municipal corporation, but, during the progress of the case, the act known as the "Greater Birmingham Act" (Acts 1909, p. 392) was passed, by which the corporate limits of the city of Birmingham were extended so as to include the town of East Lake, and thereupon a motion was made to strike from the complaint the name of the town of East Lake, and insert in lieu thereof the name of the city of Birmingham, which motion was granted; and the first assignment of error is to the action of the court in overruling a demurrer to said motion. It is insisted by the appellant that there is no authority of law for the making of the substitution.

It has been held by the courts of other states that, where one municipality is merged into another by an act providing that the latter shall be liable for the debts of the former, the latter is liable, in an action for damages which accrued against the former before the merger. City of Dallas v Beeman, 23 Tex.Civ.App. 315, 55 S.W. 762; Huffmire v. Brooklyn, 162 N.Y. 584, 57 N.E. 176, 48 L. R. A. 421. Also that, where such change was made during the pendency of the suit, it was proper to strike the name of the original defendant, and substitute that of the city which had become liable by virtue of said act. C. C. Barber v. City of East Dallas, 83 Tex. 147, 18 S.W. 438; Tyler v Village of Lansingburgh, 76 A.D. 165, 78 N.Y.S. 433.

It is true that, under our decisions, there is a limit to the right of amendment of a complaint, to the effect that a sole plaintiff or defendant cannot be stricken, and another substituted in his place. Vinegar Bend Lumber Co. v Chicago T. & T. Co., 131 Ala. 411, 30 So. 776; Springfield Fire Ins. Co. v. De Jarnette, 111 Ala 248, 257, 19 So. 995; Western Ry. of Alabama v. McCall, 89 Ala. 375, 7 So. 650; Davis Ave. R. Co. v. Patrick Mallon, 57 Ala. 168; Ex parte Collins, 49 Ala. 69.

However, section 1156 of the Code of 1907 provides that, "when any municipal corporation has been absorbed, or its government extinguished by the alteration or rearrangement of the boundary lines of another city or town the city or town so altering or rearranging its boundary lines shall assume and pay any and all debts, liabilities, bonded indebtedness, and interest thereon, of every kind and character, when the same shall become due, that may have been lawfully contracted by the city or town so absorbed or whose government...