Alston v. Dunn

58 So. 300, 176 Ala. 421, 1912 Ala. LEXIS 79

• Court: Supreme Court of Alabama
• Decided: April 4, 1912
• Status: Published

Opinion

SIMPSON, J.-

The bill in this case is filed by the appellant against J. C. Dunn, individually and as treasurer of Marengo county, and E. E. Taylor, individually, seeking to enjoin the payment by the said treasurer of a certain Avarrant, claimed to have been issued by the commissioners’ court, and. also to require said warrant to be delivered up and canceled. .

Without noticing other defects in the bill, the court correctly held that the bill was subject to the demurrers to the effect that there is no allegation in the bill that the treasurer has any intention of paying the warrant.

The warrant being illegal, it is presumed, in the absence of allegations to the contrary, that the treasurer, whose duty it is to pay only legal warrants, will not pay it. “An injunction should not be issued upon the mere apprehension of the complainant that some illegal act will be done.” — Goodson v. Dean, 173 Ala. 301, 55 South. 1010, 1011.

• The pleadings, hoAvever, did not call for the dismissal of the bill, but only for a decree on the demurrers to the bill.

The decree of the court will be corrected, by eliminating that part dismissing the bill, and, as corrected, affirmed.

Corrected and affirmed.

Dowdell, C. J.,. and Anderson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield, JJ., not sitting.