Opinion
4 Div. 239.
June 11, 1942.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Bill to abate a nuisance by the State, on the relation of Thomas S. Lawson, Attorney General, against Mrs. Earl Gullatt, Sr., alias Bernice Gullatt. From a decree overruling a demurrer to the bill, respondent appeals.
Affirmed.
The bill, filed November 10, 1941, alleges, inter alia, that respondent is the proprietor and owner of a certain "beer parlor, beer garden, dance hall, honky tonk or juke joint", located about one and one-half miles from Phenix City, on which property, more specifically described, are located also tourist cabins and other buildings; that respondent maintains a liquor nuisance on said premises, — having no license from the Alabama Beverage Control Board to sell spirituous, vinous or malt liquor — under the conditions and circumstances specifically alleged. It is prayed that temporary restraining order issue to respondent and on final hearing on proper proof that she be permanently enjoined from operating said place of business.
Respondent — December 9, 1941 — filed a demurrer to the bill, and the cause was submitted on said date for decree on the bill and the demurrer. On December 12, 1941, the trial court rendered a decree overruling the demurrer and setting the cause down for hearing on testimony to be taken in open court on December 15, 1941.
From this decree, respondent appeals.
J. W. Brassell, of Phenix City, for appellant.
The Attorney General did not sign the bill. The demurrer should have been sustained. Howard v. State ex rel. Andrews, 238 Ala. 185, 190 So. 278.
Thos. S. Lawson, Atty. Gen., for appellee.
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 FOSTER, JJ., concur.