Deer v. State ex rel. Tuthill

46 So. 848, 155 Ala. 521, 1908 Ala. LEXIS 363

Opinion

DOWDELL, J.

This is a petition by tbe appellees in tbe nature of a bill of revivor for tbe effectuation of a decree of tbe chancery court abating a public nuisance and perpetually enjoining tbe same. Tbe decree‘sought to be enforced was rendered in a case of tbe intendant and council of tbe town of Claiborne against Hugh Davidson in tbe year 1874. To tbe present petition a demurrer was interposed, which was overruled by tbe chancellor, and from tbe decree overruling tbe demurrer this appeal is prosecuted.

Two questions are presented by tbe ruling on tbe demurrer for our consideration. Tbe first is that the petitioners are not tbe proper parties to file tbe petition, and the second is that tbe petition does not show that the defendant bad any notice of the decree sought to be enforced. On tbe facts stated in tbe petition, which are confessed on demurrer, tbe petitioners show that interest in tbe enforcement of tbe decree that will authorize tbe filing of tbe petition in tbe name of tbe state by them as relators. — State ex rel. Waring v. Mayor, etc., of Mobile, 24 Ala. 701; Griffin v. Spence, 69 Ala. 393.

As to tbe second question, it is sufficient to say that tbe decree of tbe chancery court sought to be enforced was notice to tbe world, and averment in tbe petition ■of notice to the defendant was not necessary.

Tbe decree appealed from will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.