Cassimus v. Levystein

Supreme Court of Alabama

Cassimus v. Levystein

58 So. 280, 176 Ala. 365, 1912 Ala. LEXIS 75

DecidedApril 4, 1912

StatusPublished

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Bluebook

Cassimus v. Levystein, 58 So. 280, 176 Ala. 365, 1912 Ala. LEXIS 75 (Ala. 1912).

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Opinion

DOWDELL, C. J.

This is a bill to abate a nuisance. The alleged nuisance is particularly described in the bill; the same being a fruit stand erected and maintained by the respondent on the sidewalk of a public street in the city of Montgomery, and obstructing said street. That such is a public nuisance there can be no doubt. — Costello v. State, 108 Ala. 45, 18 South. 820, 35 L. R. A. 303.

The bill further shows the dimensions of the fruit stand and the purposes for which it is maintained and used, and further charges that the same is on the street adjacent to complainant’s property, and along the side[367]*367walk and against the wall oí the complainant’s storehouse, in which he carries on a “gent’s furnishing business.” The bill avers that the alleged nuisance is an obstruction to the free ingress and egress of complainant’s store by complainant, his employees, and his customers. That this is an injury special and peculiar to the complainant, different from that suffered by the general public, by reason of the alleged nuisance, we think there can be no question. The bill alleges other matters as special injury to the complainant, but we need not comment on them. That the bill contains equity we have no doubt. — First National Bank v. Tyson, 144 Ala. 457, 39 South. 460, s. c., 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; Birmingham Railway, Light & Power Co. v. Moran, 151 Ala. 187, 44 South. 152, 125 Am. St. Rep. 21.

The cause was submitted for final decree on the bill and decree pro confesso rendered against the respondent, and a final decree was rendered awarding the relief prayed; and it is from this decree that the present appeal is prosecuted. The rendition of this decree is the only error assigned. We fail to see that any error was committed, and the decree will be affirmed.

Affirmed.

Simpson, Anderson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield,'MJ., not sitting.

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DOWDELL, C. J.

This is a bill to abate a nuisance. The alleged nuisance is particularly described in the bill; the same being a fruit stand erected and maintained by the respondent on the sidewalk of a public street in the city of Montgomery, and obstructing said street. That such is a public nuisance there can be no doubt. — Costello v. State, 108 Ala. 45, 18 South. 820, 35 L. R. A. 303.

The bill further shows the dimensions of the fruit stand and the purposes for which it is maintained and used, and further charges that the same is on the street adjacent to complainant’s property, and along the side[367]*367walk and against the wall oí the complainant’s storehouse, in which he carries on a “gent’s furnishing business.” The bill avers that the alleged nuisance is an obstruction to the free ingress and egress of complainant’s store by complainant, his employees, and his customers. That this is an injury special and peculiar to the complainant, different from that suffered by the general public, by reason of the alleged nuisance, we think there can be no question. The bill alleges other matters as special injury to the complainant, but we need not comment on them. That the bill contains equity we have no doubt. — First National Bank v. Tyson, 144 Ala. 457, 39 South. 460, s. c., 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; Birmingham Railway, Light & Power Co. v. Moran, 151 Ala. 187, 44 South. 152, 125 Am. St. Rep. 21.

The cause was submitted for final decree on the bill and decree pro confesso rendered against the respondent, and a final decree was rendered awarding the relief prayed; and it is from this decree that the present appeal is prosecuted. The rendition of this decree is the only error assigned. We fail to see that any error was committed, and the decree will be affirmed.

Affirmed.

Simpson, Anderson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield,'MJ., not sitting.

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Bluebook (online)

58 So. 280, 176 Ala. 365, 1912 Ala. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cassimus-v-levystein-ala-1912.

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