City of Huntsville v. Goodenrath

• Decision Date: 09 February 1915
• Docket Number: 263
• Parties: CITY OF HUNTSVILLE v. GOODENRATH.
• Court: Alabama Court of Appeals

68 So. 676

13 Ala.App. 579

CITY OF HUNTSVILLE v. GOODENRATH.

No. 263

Court of Appeals of Alabama

February 9, 1915

Rehearing Denied April 16, 1915

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by Otto Goodenrath against the City of Huntsville. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brown J., dissenting.

The following is the complaint:

(1) Plaintiff claims of defendant *** damages that during and prior to May, 1912, and now, plaintiff was and is the owner of the following described real estate in the city of Huntsville, *** on which is situated, and has been at all of the time aforesaid, one brick storehouse used for business purpose, and on or about the month of May, 1912, defendant, a municipal corporation under the laws of Alabama invested by law with the privilege of taking property for public use, and with full authority to improve, grade, construct, and repair the streets of the city of Huntsville, did raise and cause to be raised the grade of the sidewalk on the east side of Washington street in front of and on which said storehouse abuts or fronts, about 11 inches above and higher than the former grade, and constructed or caused to be constructed a new sidewalk on said raised grade, th us placing the ground floor of plaintiff's building about 11 inches below the sidewalk, rendering said store more difficult of access and entrance, and greatly diminishing the value of plaintiff's said property before making just compensation to plaintiff therefor, to plaintiff's damages.

(2) Same as 1 down to and including description of the property, with the added allegation that defendant at or about the time aforesaid raised or elevated, or caused to be raised or elevated, the sidwalk in front of said property about 11 inches above the ground floor of said storehouse thereby greatly injuring and reducing the value of said store and property, to plaintiff's damages.

David A. Grayson, of Huntsville, for appellant.

S.S Pleasants, of Huntsville, for appellee.

THOMAS J.

After the record was filed here and before the submission of the case, a writ of certiorari was issued by order of this court at the instance of appellee, directing the clerk of the lower court to certify and forward to this court, as a part of the record and proceedings in this case, a judgment of the lower court amending and correcting nunc pro tunc the judgment appealed from, so as to make the latter truthfully speak the judgment of the lower court. The particulars of the amendment and correction had reference solely to the matter as to what were the pleas upon which issue was joined and as to what were the pleas to which a demurrer was sustained.

It appears from the record that the appellant filed in answer to the action 13 pleas--one numbered A, and the others numbered, respectively, from 1 to 12 consecutively. It further appears conclusively from the face of the only demurrer filed to defendant's pleas that it was filed only to pleas A and 1, 2, 3, 4, 6, 7, 9, 10, 11, and 12 and was not filed to pleas 5 and 8--the former (5) setting up the statute of nonclaim (Code, § 1191), and the latter (8) the general issue. The original judgment, however, incorrectly recites in this particular that:

"Plaintiff demurs to pleas numbered 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 12, and A, which said demurrer being submitted to and duly considered by the court, it is ordered and adjudged that said demurrer be and the same is hereby sustained, whereupon issue being joined on pleas 5 and 9, thereupon came a jury," etc.

The judgment, as amended nunc pro tunc, recites in correction of the former that:

"Plaintiff demurs to pleas 1, 2, 3, 4, 6, 7, 9, 10, 11, and 12, and A, which said demurrer being submitted to and considered by the court, it is ordered and adjudged that said demurrer be and the same is hereby sustained, whereupon issue being joined on pleas 5 and 8, thereupon came a jury," etc.

It is contended by appellant, who objected and excepted to this action of the court in so correcting or amending at a subsequent term the former judgment entry, that there was no record evidence justifying or authorizing such amendment and correction. But we think it a sufficient answer to this contention to say that the pleadings themselves, which are certainly a part of the record, show conclusively the error in the recitals of the original judgment entry and the correctness of the recitals of the amended judgment entry. The court could not, as recited in the former, have sustained a demurrer to plea numbered 8 (the general issue), as the pleadings show that no demurrer was filed to such plea; nor could issue have been joined on plea 9, as recited, for a demurrer had been filed to this plea and had been sustained, as previously so recited in the said entry itself. The issue was therefore joined on plea 8 (the general issue), as recited in the amended entry, and not on plea 9 as recited in the original entry, and on plea 5 as recited in both entries. The record evidence was ample, we think, to justify the correction made, and we shall consequently treat the amended judgment as the real judgment of the court, which relieves the necessity for any consideration of the question presented under the judgment in its original form as to whether it was reversible error for the court to sustain a demurrer to a plea of the general issue. Montevallo Coal Co. v. Reynolds, 44 Ala. 252; Seymour v. Harrow Co., 81 Ala. 250, 1 So. 45; Cunningham v. Fontaine, 25 Ala. 644; Jones v. Woodstock Iron Co., 95 Ala. 555, 10 So. 635; Tobias v. Treist, 103 Ala. 644, 15 So. 914; Mill Co. v. Smith, 78 Ala. 108; Central of Ga. Ry. Co. v. Carleton, 163 Ala. 62, 51 So. 27; Merrill v. Sheffield, 169 Ala. 242, 53 So. 219; L. & N.R.R. Co. v. McCool, 167 Ala. 644, 52 So. 656.

We come, then, to a consideration of the main case, which is an appeal on the record proper, without a bill of exceptions, and requires a review only of the action of the court in overruling appellant's demurrers to the complaint and in sustaining appellee's demurrers to appellant's said pleas filed to the complaint.

The complaint, comprising two counts, will be set out in the report of the case. No ground of the demurrer to it seems to be insisted upon except ground 5; and, while we are of opinion that none of the grounds contain merit, we shall, for the reason stated, confine our discussion to said ground 5, which raises the point as to whether or not, when the demand against a muncipality is of the character here sued on, it is necessary for the complaint to allege the filing of a statement of such demand with the city authorities before bringing the suit.

Section 1275 of the Code is by its express terms confined to its operation to claims or demands against a city for personal injuries received; and, while it has been held that a compliance with its requirements as to filing a sworn statement of the claim or demand with the city authorities is a prerequisite to the right of bringing a suit thereon and must be averred (Brannon v. Birmingham, 177 Ala. 419, 59 So. 63; New Decatur v. Chappell, 2 Ala.App. 564, 56 So. 764), yet such section has no application to the case at bar for the reason that this action is not founded upon a claim or demand for personal injuries, but for injury to property. Such a claim or demand as the latter falls within the provisions of section 1191 of the Code, which likewise requires a filing of a statement of it with the city authorities; but in construing the section it has been held both by this court and the Supreme Court that the section is similar to the statute of nonclaim 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. 1014. Hence it was not necessary for the complaint in this case to allege a filing of a statement of the demand sued on with the city authorities before bringing suit.

To all the numerous pleas filed by appellant (defendant below) demurrers were sustained, except as to pleas 5 and 8, as before stated, to which no demurrer was filed; but none of the several assignments of error predicated upon the action of the court in sustaining such demurrers seems to be insisted upon by appellant's counsel in brief, except as to plea A, and they are consequently waived. Besides, we may add, they are, in our opinion, without merit. Fitts v. Phoenix Auction Co., 153 Ala. 635, 45 So. 150; Harper v. Raisin Fert. Co., 148 Ala. 360, 42 So. 550; Hodge v. Rambo, 155 Ala. 175, 45 So. 678; Western Ry. Co. v. Russell, 144 Ala. 142, 39 So. 311, 113 Am.St.Rep. 24; Williams v. Spragins, 102 Ala. 424, 15 So. 247.

Plea A sets up, in alleged former adjudication of the issue here involved, the proceedings of the board of commissioners of defendant city, had (before this suit was brought) under the authority of the provisions of the Municipal Code (Code, § 1359 et seq.), and from which it appears that such board after determining upon the improvement of the street (the raising of the grade of which, in executing the improvements, caused the injury to plaintiff's property here complained of), assessed against plaintiff's said property, which abutted thereon, the sum of $37.80 as the proportion of the cost of the improvements that it was adjudged by the board, after giving the notice required by the statute (Code, § 1377), said property was to bear. The issue before such board, as fixed by the law, was whether the value of such property had been increased or not as the result of the street improvements, considering, in so determining, special, but not general, benefits. If not increased, which was a...