66 So. 145 | Ala. | 1914
Undoubtedly the complainant in this case makes out a cause of action against the city of Bessemer. — Oity of Bessemer v. 8. B. Whaley, 10 Ala. App. 569, 65 South.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 Codej 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
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 South. 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 malting only the city a defendant to the suit. Section 1274 of the Code of 1907, which provides for the nonsuit, also provides that: “If the injured party shall, before bi’inging suit, demand of the
It may be that, if the proceedings looking to a non-suit had been taken, the plaintiff would have shown that she had complied with the last above quoted provision of the Code, and that, therefore, there was not only no reason for a nonsuit, but no reason for a stay of the proceedings until the other persons could be made defendants.
At any rate, the defendant did not. see proper to apply for a nonsuit, but pleaded to the complaint, and in doing so waived any legal right secured to it by the above statute in so far as a nonjoinder of parties defendant is concerned.
The ordinances to which the Court of Appeals refer in their opinion were a part of the laws of the city of Bessemer, and related to the duties of certain officers of said city relative to the sidewalks of the city. As the gravamen of the complaint challenged the perform-anee by the officers of the city of their duties relative to said sidewalks, the ordinances were admissible and relevant. Certainly the plaintiff had a right to- show that, under the ordinances of the city, there were officers who were charged with the duty of keeping the sidewalks in proper condition, and then, by other evidence, show that they had failed to perform that duty.
The last opinion of the Court of Appeals is not in accordance with the above views. The judgment of the
Reversed and remanded.