City of Jasper v. Lacy

• Decision Date: 07 April 1927
• Docket Number: 6 Div. 705
• Citation: 216 Ala. 26,112 So. 307
• Parties: CITY OF JASPER v. LACY.
• Court: Alabama Supreme Court

112 So. 307

216 Ala. 26

CITY OF JASPER v. LACY.

6 Div. 705

Supreme Court of Alabama

April 7, 1927

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for damages by Mollie L. Lacy against the City of Jasper. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles R. Wiggins, of Jasper, for appellant.

Sowell & Gunn, of Jasper, for appellee.

SAYRE J.

Action by appellee against appellant, claiming damages for that defendant maintained a defective sewer in close proximity to the residence of plaintiff, so that "quantities of excrement and filth oozed, leaked, or flowed from out of said sewer and thereby noisome, noxious, offensive, and unwholesome smells, vapors, and stenches *** ascended and came unto and into the said premises of plaintiff, and *** greatly damaged, annoyed, and incommoded plaintiff and her family in their habitation of the premises."

The main objection taken by defendant's demurrer was that the complaint failed to show a compliance with section 44 of the Act approved December 13, 1900 (Acts 1900-01, p. 410 et seq.), entitled an act "to establish a new charter for the city of Jasper, Walker County, Alabama," providing in short, that no suit could be maintained against the city until application had been made to the board of mayor and aldermen for payment. The claim, it must be conceded, was for personal injury in part at least (Birmingham v Ingram, 212 Ala. 552, 103 So. 599), but the suit was not governed by the act referred to, for the reason that it was superseded by section 95 of the General Act approved August 13, 1907 (Acts, p. 790 et seq.), now sections 2029, 2030, 2031, of the Code, providing for the organization, incorporation, government and regulation of cities and towns, etc., and regulating the same subject in a manner different from that prescribed by section 44 of the special or local act of December 13, 1900. Section 200 of the general municipal corporation law, supra, provided:

"That all laws and parts of laws, both general and special, in conflict herewith be and the same are hereby repealed."

This had effect to repeal the section of the Jasper incorporation act. The complaint alleged a compliance with this section of the Code. It follows that defendant's demurrer, and, of course, its motion to strike on the same ground, were properly overruled.

The same reason leads to the conclusion that the trial court committed no error in sustaining demurrers to several special pleas filed by defendant, nor in refusing the general charge requested by defendant on the ground that section 44 of the special charter of Jasper had not been complied with; the proof showing a compliance with the general municipal incorporation law.

We find no fault in those parts of the court's oral instruction to which exceptions were reserved. Those parts of the charge assume nothing...