City of Birmingham v. Darden

1 Ala. App. 479 | Ala. Ct. App. | 1911

PER CURIAM.

This is an action by the appellee for damages resulting from the maintenance of a nuisance. The action was originally against the town of East Lake, a municipal corporation, but, during the progress of the case, the act known as the “Greater Birmingham Act” (Acts 1909, p. 392) was passed, by which the corporate limits of the city of Birmingham were extended so as to include the town of East Lake, and thereupon a motion was made to strike from the complaint the name of the town of East Lake, and insert in lieu thereof the name of the city of Birmingham, which motion was granted; and the first assignment of error is to the action of the court in overruling a demurrer to said motion. It is insisted by the appellant that there is no authority of law for the making of the substitution.

It has been held by the courts of other states that, where one municipality is merged into another by an act providing that the latter shall be liable for the debts of'the former, the latter is liable, in an action for damages which accrued against the former before the merger.—City of Dallas v. Beenman, 23 Tex. Civ. App. 315, 55 S. W. 762; Huffmire v. Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421. Also that, Avhere such change was made during the pendency of the suit, it Avas proper to strike the name of the original defendant, and substitute that of the city Avhich had become liable by virtue of said act. — C. C. Barber v. City of East Dallas, 83 Tex. 147, 18 S. W. 438; Tyler v. Tillage of Lansinburgh, 76 App. Div. 165, 78 N. Y. Supp. 433.

It is true that, under our decisions, there-is'a limit to the right of amendment of a complaint, to the effect that a sole plaintiff or defendant cannot be stricken and another substituted in liis place.—Vinegar Bend Lumber Co. v. Chicago T. & T. Co., 131 Ala. 411, 30 South. 776; Sprinfielel Fire Ins. Co. v. De Jarnette, 111 Ala. 248, 257, 19 South. 995; Western Ry. of Alabama v. McCall, 89 Ala. 375, 7 South. 650; Demis Ave. R. Co. v. Patrick Mollon, 57 Ala. 168; Ex parte Collins, 49 Ala. 69.

' However, section 1156 of the Code of 1907 provides that, “when any municipal corporation has been absorbed, or its government extinguished by the alteration or re-arrangement of the boundary lines of another city or town, the city or town so altering or rearranging its boundary lines shall assume and pay any and all debts, liabilities, bonded indebtedness, and interest thereon, of every kind and character, when the same shall become due, that may have been lawfully contracted by the city or town so absorbed or whose government has been extinguished,” etc.; and section 1159 provides that “all suits pending in any court on behalf of said city or town so absorbed or whose government is extinguished, may be prosecuted or defended in the name of the city or town whose boundary lines shall be altered or rearranged,” etc. The evident purpose of this section .is to authorize the substitution of the name of the city so made liable for that of the original defendant, as otherwise the suit would not be prosecuted or defended in the name of the city or town whose boundary lines” have been altered. It results that there was no error in overruling the demurrer to the motion.

As to the demurrer to the complaint, on the ground that it does not allege that the claim was presented within six months, this is a matter that should be presented by plea, and the record shows that it was presented by plea, and some of the charges asked by the defendant show that there was a presentation, which was held by the court to be legal, and there is no bill of exceptions. This is analogous to the defense of the failure to present a claim to an administrator, which, in a court of law, must be specially pleaded.—Adm'r of Mardis v. Smith, 2 Ala. 382; Smith & Crawford, Ex’rs, v. Huie, Adm'r, 14 Ala. 201, 206. There was no error in overruling this demurrer.

The judgment of the court is affirmed.

Affirmed.

Note. — The above opinion was prepared by Mr. Justice Simpson of the Supreme Court, before the transfer of the case to this court, and is adopted by this court.