Jones v. City of Birmingham

• Citation: 207 Ala. 48,92 So. 898
• Decision Date: 22 December 1921
• Docket Number: 6 Div. 592.
• Parties: JONES v. CITY OF BIRMINGHAM.
• Court: Supreme Court of Alabama

92 So. 898

207 Ala. 48

JONES v. CITY OF BIRMINGHAM.

6 Div. 592.

Supreme Court of Alabama

December 22, 1921

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action by W. K. Jones against the City of Birmingham for damages for maintaining a nuisance. From a judgment sustaining demurrers to the complaint, plaintiff suffers a nonsuit, and appeals. Affirmed.

Harsh, Harsh & Harsh, of Birmingham, for appellant.

W. J. Wynn, of Birmingham, for appellee.

THOMAS, J.

The appeal is upon the record, after nonsuit taken. The judgment entry and bill of exceptions shows that plaintiff deemed it had become necessary, and suffered a nonsuit for and on account of the "ruling of the court in sustaining defendant's *** demurrers to the plaintiff's complaint as amended," and by bill of exceptions reserved "for the decision of the Supreme Court of Alabama the said ruling or decision of said court." Paterson & Edey Lumber Co. v. Bank of Mobile, 203 Ala. 536, 84 So. 721, 10 A. L. R. 1037.

It is admitted that, if statutory compliance is applicable, presentation of claim for personal injury, such as averred, against a municipality, is a condition precedent to recovery. Acts 1915, pp. 297, 298, §§ 10, 12. Appellant insists that such statute does not apply to an injury, the proximate result of that nuisance described in the complaint. After a re-examination of the question presented by demurrer in the instant case, we are of opinion that the decision in Birmingham v. Prickett (Ala. Sup.) 92 So. 7, has application and supports the ruling of the trial court. No good reason is found in the statute or decisions of this and other courts causing us to depart from the former ruling.

Affirmed.

All the Justices concur.