Newman v. City of Birmingham

CourtSupreme Court of Alabama
Writing for the CourtHEAD, J.
Citation19 So. 902,109 Ala. 630
PartiesNEWMAN v. MAYOR, ETC., OF BIRMINGHAM.
Decision Date14 April 1896

19 So. 902

109 Ala. 630

NEWMAN
v.
MAYOR, ETC., OF BIRMINGHAM.

Supreme Court of Alabama

April 14, 1896


Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Y. P. Newman against the mayor and aldermen of Birmingham for damages for change of grade. Judgment for defendants, and plaintiff appeals. Reversed.

Ben Carter, for appellant.

Gregg & Thornton, for appellees.

HEAD, J.

The appellant, Newman, sued appellees for damages for the elevation of the grade of the street and sidewalk in front of his residence, and constructing them accordingly. Under the evidence, on the merits of his claim, he was entitled to recover; but the court ruled that there was no evidence tending [19 So. 903.] to show that he had legally presented his demand to the mayor and aldermen, and procured action or refusal to act upon its allowance, before the institution of the suit, as required by the city charter (Acts 1890-91, pp. 114, 149, § 36), and, on request, gave the affirmative charge in favor of the defendant, whereupon the plaintiff took a nonsuit with bill of exceptions. The charter does not require application for the allowance of claims to be made in writing. The proper description of plaintiff's property is, "Lot 1 and part of lot 2 in block 35," fronting on Nineteenth street, and bounded on the south by Sixth alley, upon which stood a 10-room brick dwelling house, occupied as his residence, where he had resided for a number of years. He owned no other property in the city of Birmingham. After the damage accrued, plaintiff made out in writing and presented to the chairman of the street committee a claim in the following words: "Mayor and Aldermen of Birmingham, to Y. P. Newman, Dr. Said Y. P. Newman is the owner of lot 3 and part of lot 4 in block 35, according to the plan and survey of said city, on which lots is his residence, erected after the grade of said street had been fixed by the city," etc., going on to describe the acts of the defendant in afterwards raising the grade and injuring the property, and claiming $1,500 damages. It is thus seen that a mistake was made in the numbers of the lots. The evidence tends to show that this claim was put before the board of mayor and aldermen by the chairman of the street committee, and went into the custody of the clerk of that body, who was the proper custodian of such papers, and who produced it on the trial of this cause. The minutes of the regular board meeting, on September...

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10 practice notes
  • Maise v. City of Gadsden, 7 Div. 353
    • United States
    • Supreme Court of Alabama
    • March 26, 1936
    ...219 Ala. 686, 123 So. 83, 63 A.L.R. 1076; McKinnon v. City of Birmingham, 196 Ala. 56, 71 So. 463. In Newman v. City of Birmingham, 109 Ala. 630, 19 So. 902, 903, plaintiff sued for damages for raising the elevation of the street in front of his residence. The claim did not correctly descri......
  • City of New Decatur v. Chappell
    • United States
    • Alabama Court of Appeals
    • November 21, 1911
    ...adjust differences and settle claims without suit. Barrett v. Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Newman v. Birmingham, 109 Ala. 630, 19 So. 902; Bland v. Mobile, 142 Ala. 142, 37 So. 843. The statute (section 1275) makes filing the claim a prerequisite to recovery in any s......
  • Cole v. City of Birmingham, 6 Div. 89.
    • United States
    • Alabama Supreme Court
    • December 22, 1942
    ...to investigate and adjust claims preferred against the city without the expense of litigation. Newman v. Mayor and Aldermen of Birmingham, 109 Ala. 630, 19 So. 902; Maise v. City of Gadsden, 232 Ala. 82, 166 So. 795; City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; McKinnon v. City......
  • City of Jasper v. Barton
    • United States
    • Alabama Court of Appeals
    • June 1, 1911
    ...it can act intelligently in the investigation and allowance or rejection of the same." Newman v. Mayor and Aldermen of Birmingham, 109 Ala. 630, 19 So. 902. The written statement presented to the defendant plainly informed it that the plaintiff claimed the stated amount as damages for ......
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10 cases
  • Maise v. City of Gadsden, 7 Div. 353
    • United States
    • Supreme Court of Alabama
    • March 26, 1936
    ...219 Ala. 686, 123 So. 83, 63 A.L.R. 1076; McKinnon v. City of Birmingham, 196 Ala. 56, 71 So. 463. In Newman v. City of Birmingham, 109 Ala. 630, 19 So. 902, 903, plaintiff sued for damages for raising the elevation of the street in front of his residence. The claim did not correctly descri......
  • City of New Decatur v. Chappell
    • United States
    • Alabama Court of Appeals
    • November 21, 1911
    ...adjust differences and settle claims without suit. Barrett v. Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Newman v. Birmingham, 109 Ala. 630, 19 So. 902; Bland v. Mobile, 142 Ala. 142, 37 So. 843. The statute (section 1275) makes filing the claim a prerequisite to recovery in any s......
  • Cole v. City of Birmingham, 6 Div. 89.
    • United States
    • Alabama Supreme Court
    • December 22, 1942
    ...to investigate and adjust claims preferred against the city without the expense of litigation. Newman v. Mayor and Aldermen of Birmingham, 109 Ala. 630, 19 So. 902; Maise v. City of Gadsden, 232 Ala. 82, 166 So. 795; City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; McKinnon v. City......
  • Perrine v. Southern Bitulithic Co., 721
    • United States
    • Supreme Court of Alabama
    • November 7, 1914
    ...which the action was brought, as required by Municipal Code, §§ 1191, 1275. The authorities relied on by appellee (Newman v. Birmingham, 109 Ala. 630, 19 So. 902, and Bland v. Mobile, 142 Ala. 144, 37 So. 843) to support the ruling of the trial court construe statutes different from the sta......
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