Gullatt v. State Ex Rel. Lawson

8 So. 2d 577, 243 Ala. 61, 1942 Ala. LEXIS 183

• Court: Supreme Court of Alabama
• Decided: June 11, 1942
• Docket: 4 Div. 239.
• Status: Published

Opinion

THOMAS, Justice.

The appeal is from the overruling of demurrer to the bill by the state filed to abate a nuisance.

The statutes that obtain are found in Code 1940, T. 7, §§ 1091-1108; Code 1923, Chap. 325, Art. 1, §§ 9271-9298.

We consider the grounds of demurrer on which appellant relies and argues pursuant to the rule set forth in Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

Appellant relies upon Howard v. State, 238 Ala. 185, 190 So. 278, urging that the state is not here made a proper party because the bill was not signed by the attorney general but by the state’s solicitor of the instant circuit. This pleading is different from that considered in the Howard case, supra.

It is here averred that:

“The State of Alabama, by its Attorney General, Thomas S. Lawson, humbly complaining, seeking equity and offering to do equity, would most respectfully represent and allege unto your Honor the following statement of facts:

“1. That the State of Alabama makes itself party complainant and exhibits this its bill of complaint under authority of the laws of the State of Alabama. * *

In the Howard case, supra, the pleading was:

“The State of Alabama, upon the relation of George W. Andrews, Jr., Solicitor of the Third Judicial Circuit of Alabama, humbly complaining, respectfully represents and shows unto your Honor as follows:

“1. The State of Alabama, by and through George W. Andrews, Jr., Solicitor of the Third Judicial Circuit of Alabama, exhibits this, its bill of complaint, under the authority of the laws of the State of Alabama, and the statutes thereof as found under Chapter 325, Articles 1 and 2, providing for the abatement of nuisances, Code of Alabama of 1923 [Code 1940, Tit. 7, §§ 1081-1108], * *

We find no error in the ruling on demurrer assigned generally by counsel in brief .as follows:

“We respectfully submit to this Honorable Court that the Bill is demurrable and that each assignment of error by appellant in the record as well as each ground of demurrer shows the fatal defects as pointed out in the demurrers.

“We respectfully submit that the lower Court erred in overruling the demurrers and in not allowing the Respondent any time in which to prepare and file an answer to the Bill of Complaint.”

See the rule in Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158, and Brown v. State ex rel., etc., 222 Ala. 623, 133 So. 913.

The judgment of the circuit court is affirmed.

Affirmed.

GARDNER, C. J., and BROWN and POSTER, JJ., concur.