109 Ala. 630 | Ala. | 1895
The appellant, Newman,, sued appellee for damages for raising 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 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, p. 114, § 36, p. 149), and, on request, gave the affirmative charge in favor of the defendant; whereupon the plaintiff took a non-suit 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 19th street, and bounded on the south by Sixth Alley, upon which stood a ten-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,
We are clearly of opinion the case' should have been submitted to the jury.
Reversed, non-suit set aside, and cause remanded.-