Anderson v. City of Birmingham

58 So. 256, 177 Ala. 302, 1912 Ala. LEXIS 213

• Court: Supreme Court of Alabama
• Decided: February 8, 1912
• Status: Published

Opinion

DOWDELL, C. J.

Section 1191 of the Code of 1907, which provides that “all claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages -growing out of torts shall be presented within six months from the accrual thereof or shall be barred” — is a statute of nonclaims, and is unlike the provisions contained in section 36 of the old charter of the city of Birmingham (Acts 1890-91, p. 149), construed in Newman v. Mayor & Aldermen, 109 Ala. 630, 19 South. 902, which made the presentation of the claim a prerequisite to the commencement of a suit.

The statute under consideration is analogous to the statute requiring the presentation of claims to an administrator within a prescribed period, or the same be barred. In such cases, presentation is not a prerequisite to the bringing of a suit; and, if a suit be commenced within the prescribed period, it is a sufficient presentation.—Floyd v. Clayton, Ex’r, 67 Ala. 265. In the present case, the suit was begun within six months (the prescribed period) of the accrual of the claim sued on.

The fourth plea furnished no ground of defense to the action; and the trial court consequently erred in overruling the plaintiff’s demurrer to this plea.

There are two other assignments of error; but they each present the same question above decided, and hence call for no further discussion.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

All the Justices concur.