Ex parte Whaley
| Decision Date | 25 July 1914 |
| Docket Number | 895 |
| Citation | 188 Ala. 381,66 So. 145 |
| Parties | Ex parte WHALEY. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Action by Mrs. S.B. Whaley against the City of Bessemer. From a judgment of the Court of Appeals (65 So. 691) reversing a judgment for plaintiff, she brings certiorari. Reversed and remanded.
Estes Jones & Welch, of Bessemer, for appellant.
L Herbert Etheridge, of Bessemer, for appellee.
DE GRAFFENRIED, J.
Undoubtedly the complainant in this case makes out a cause of action against the city of Bessemer. City of Bessemer v. S.B Whaley, 65 So. 542.
It is claimed that some of the counts of the complaint show that other persons besides the city of Bessemer participated in the creation of the nuisance which proximately caused the plaintiff's injuries. If so, upon an appropriate motion under the terms of section 1274 of the Code, the plaintiff might, after having been given an opportunity to make such other persons defendants, and having failed to do so, have been nonsuited. This section declares that:
"The injured party, if he sues the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as the defendant or defendants of the suit, *** and if an action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provisions in the preceding section, the plaintiff shall be nonsuited, unless he amends by making such party or corporation a defendant," etc.
In this case there was no motion for a nonsuit, and, as the above statute, by its terms, provides its own penalty for a violation of its terms, the demurrer to the complaint on the ground indicated in the last opinion of the Court of Appeals should have been overruled.
The complaint, as we have already said, makes out a good cause of action against the city. The plaintiff's right of action came to her not merely from the statutes which define her rights. Her right of action came to her from the principles of the common law. If, for the protection of the city, the plaintiff should have made some other person a defendant then the statute itself plainly indicates the methods--the only methods, because they are of statutory creation--which should have been adopted to bring in such other person as a party defendant. As this right of the city is one purely of statutory creation, the remedy provided by the statute for the enforcement of the right must be strictly followed, as it is exclusive. Logan v. Barclay, 3 Ala. 361; Murphy's Adm'r v. Br. Bank at Mobile, 5 Ala. 421, 465; Taliaferro v. Lane, 23 Ala. 369; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785; Nicrosi v. Roswald, 113 Ala. 592, 21 So. 338.
It may be that, if the city had made the motion for the nonsuit, the plaintiff would have shown, as a reason why such motion should not have been granted, some statutory excuse for making only the city a...
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Chamberlain v. Board of Com'rs of City of Mobile
... ... used only for street purposes. The city has a duty to ... maintain its streets fixed by law. Ex parte Whaley, 188 Ala ... 381, 66 So. 145; City of Bessemer v. Whaley, 187 ... Ala. 525, 65 So. 542; Grambs v. City of Birmingham, ... 202 Ala ... ...
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...So. 723; City of Montgomery v. Wyche, 169 Ala. 189, 53 So. 786; City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664; Ex parte Whaley, 188 Ala. 381, 66 So. 145. in plea 2, demurrer to which was sustained, alleged that the Birmingham Coca-Cola Company was jointly liable, but was not made......
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...rock, which had been piled in the street at the point named, to be left there at night, without appropriate signals of danger. City of Bessemer v. Whaley, supra; Mayor & Ald., Birmingham, v. Tayloe, 105 Ala. 16 So. 576. 6. There was filed in the cause a plea in the following language: "The ......
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