Marsicano v. City of Birmingham

Decision Date03 February 1910
PartiesMARSICANO v. MAYOR, ETC., OF BIRMINGHAM.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Joseph Marsicano against the Mayor and Aldermen of Birmingham. From a judgment for defendant, plaintiff appeals. Affirmed.

W. T. Edwards, for appellant.

R. H. Thatch, for appellee.

SAYRE, J.

It appears from the agreed statement of facts, upon which this cause was tried in the court below, that the appellant, being engaged in the saloon business in the city of Birmingham in the year 1906, when that business was lawful, his place of business was in March of that year closed by the municipal authorities on account of appellant's violation of the excise law of the city. Thereupon, on appellant's request, he was allowed to reopen his place of business, upon his deposit with the treasurer of the city of the sum sued for, upon condition that said sum was to be returned to him if the excise laws of the city were not violated during the year 1906. It was further agreed that appellant had subsequently and during the year been convicted of a violation of the excise law of the city.

We need not look too deeply into the contract by which appellant deposited his money with the treasurer of the city. If it was a valid contract, its terms stand in the way of plaintiff's recovery. If, as is contended, it was void, as offensive to public policy, then the money was received by the treasurer as an individual, the parties were in pari delicto, and the law will not intervene for the relief of either, but will leave them to their own devices. In no event can the appellant recover of the city of Birmingham.

Affirmed.

ANDERSON, McCLELLAN, and MAYFIELD, JJ., concur.

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3 cases
  • Protective Life Ins. Co. v. Hale
    • United States
    • Alabama Supreme Court
    • 28 Marzo 1935
    ... ... Cabaniss ... & Johnston and L.D. Gardner, Jr., all of Birmingham, for ... appellant ... Taylor ... & Higgins, of Birmingham, for appellee ... Assur. Soc. v. Dorriety (Ala.Sup.) 157 So. 59; 13 C.J ... 635, § 705; Marsicano v. City of Birmingham, 165 ... Ala. 405, 51 So. 608 ... When ... the averments of ... ...
  • Ellis v. Batson
    • United States
    • Alabama Supreme Court
    • 9 Abril 1912
    ... ... Bluenthal v. Headland, 132 Ala. 249, 31 So. 87, 90 ... Am. St. Rep. 904; Marsicano v. Birmingham, 165 Ala ... 405, 51 So. 608; Treadwell v. Torbert, 119 Ala. 279, ... 24 So. 54, ... ...
  • Central Iron & Coal Co. v. Thompson
    • United States
    • Alabama Supreme Court
    • 10 Febrero 1910

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