Merrill v. Blount County, 6 Div. 711
| Decision Date | 21 September 1961 |
| Docket Number | 6 Div. 711 |
| Parties | Ben E. MERRILL, Executor, v. BLOUNT COUNTY. |
| Court | Alabama Supreme Court |
Brobston & Brobston, Bessemer, and Johnson & Randall, Oneonta, for appellant.
Nash & NeSmith, Oneonta, for appellee.
This appeal is from a judgment of nonsuit induced by the sustaining of demurrers to Counts A and C of the amended complaint, and the sustaining of objections to the introduction in evidence of the claim against Blount County filed by appellant with the governing body of the county.
The action was based upon alleged trespasses of employees of the county in widening a county road and damaging the property of the owner. Each count contained an averment that at all times the defendant was empowered to exercise the powers of eminent domain. The demurrer was overruled as to Count B and some evidence was presented under that count prior to the taking of the nonsuit.
Count A alleges in part that 'the plaintiff did on, to-wit, March 27, 1959, file in writing with the Board of Finance and Control of Blount County, then and there the governing body of said County, an itemized claim in writing detailing the damage claimed by the said Myra Freiley Merrill, which said claim, in writing, was denied by said Board of Finance and Control of Blount County, Alabama, in that no sum was authorized to be paid and no sum was paid to plaintiff's testate on account of the damage claimed by the trespass aforesaid.'
The pertinent part of Tit. 12, § 115, Code 1940, reads:
'No claim against the county shall be passed upon or allowed by the court of county commissioners unless it is itemized and sworn to by the claimant, or some person in his behalf having personal knowledge of the facts; * * *.'
It has long been the law that a complaint seeking to recover on a claim against a county must allege that the statement of the claim was itemized and verified as required by § 115. Schroeder v. Colbert County, 66 Ala. 137; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174. The demurrer to Count A raised the point that the complaint did not show that the claim filed by the owner was verified. The demurrer was properly sustained on this ground.
Count C contained the following additional paragraph:
The copy of the claim attached reads:
'Jefferson County
'Personally appeared before me, the undersigned authority in and for said County in said State, Ben E. Merrill, who being by me first duly sworn makes this affidavit pursuant to the provisions of Title 7 Section 96, Code of Alabama 1940, as amended, and affiant says:
'That he is the son of Mrs. Roy A. Merrill of Route 1 Box 89, Warrior, Alabama, and that the said Mrs. Roy A. Merrill owns the following described property:
'Fifteen (15) acres in the Southwest corner of the SW 1/4 of the NE 1/4; thirty-four (34) acres in the NW 1/4 of the SE 1/4; three (3) acres in the Southwest corner of the NE 1/4; all in Section 30, Township 13, Range 2 West,
and that during, to-wit: the months of November and December, 1958, road grading equipment, trucks and other road building equipment trespassed upon the property hereinabove described without the permission of Mrs. Roy A. Merrill, and in widening the County road which runs through the hereinabove described property caused damage to the property and to timber growing upon said property. And affiant believes that the damage caused to the said property is in the amount of $2500.00 and that the County of Blount is justly indebted to the said Mrs. Roy A. Merrill in the amount of $2500.00.
'That he makes this claim on behalf of and at the request of the said Mrs. Roy A. Merrill.
's/ Ben E. Merrill
'Sworn to and subscribed before me this the 27th day of March, 1959.
's/ Richard L. Jones
'Notary Public'
Count C shows that Ben E. Merrill sues as the executor of the estate of Myra Freiley Merrill, but the claim attached and made an exhibit claims damages were sustained by reason of trespass to lands of Mrs. Roy A. Merrill. At the time the ruling sustaining the demurrer was made, there was nothing before the court to show that Myra Freiley Merrill and Mrs. Roy A. Merrill were one and the same person. On its face, Count C shows that the party plaintiff and the person filing the claim are different. This point was raised by the demurrer and the court correctly sustained the demurrer under Tit. 12, § 115, because there was no allegation that the plaintiff and the claimant were the same parties.
We come now to consider the claim as filed with the governing body of Blount County. Here, the claim must stand or fall of itself, unaided by allegations in the complaint. The governing body of Blount County was charged by law with the duty of auditing the claim and not allowing it unless it was...
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And v. Miller
...resulting from the event or transaction, the nature of the damages, and the compensation demanded." Id. (citing Merrill v. Blount County, 272 Ala. 585, 133 So.2d 212 (1961)).Although the notice statutes governing claims against municipalities are not identical to those governing claims agai......
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