Barnett v. Tedescki , 154 Ala. 474 ( 1908 )

DOWDELL, J.

A bawdy house, or house of prostitution, is a nuisance per se. — Hundley v. Harrison, 123 Ala. 292, 26 South. 294; 16 Am. & Eng. Ency. Law (1st Ed.) p. 937; 1 Wood on Nuisances, §§ 24-27.

The jurisdiction of a court of equity to entertain a bill to abate a nuisance is too well settled in our jurisprudence to admit of question. — 3 Mayfield’s Dig. p. 181, § 160. The bill in the present case avers special damages to the complainant and to complainant’s properly, distinct from that suffered by the public; and it is therefore immaterial whether the alleged nuisance under the facts stated in the bill be considered a public or private nuisance. The bill is maintainable.

The court, acquiring jurisdiction for the purpose of abating a nuisance, will also, upon proper averments, extend such jurisdiction to the ascertainment and determination of the damages suffered by reason of the nuisance. — Whaley v. Wilson, 112 Ala. 627, 20 South. 922.

The ground of demurrer seeking to raise the question of the complainant’s right to claim attorney fees as special damages is addressed to the third paragraph of the bill. No such claim is set up in the third paragraph; The demurrer, therefore, to this part of the bill, was not improperly overruled. In the special prayer of the bill it is asked that such damages be allowed on the holding of a reference. We take occasion in this connection to say that we know of no law in this state authorizing the allowance of attorney’s fees in a proceeding of the nature of the present bill.

The footnote as amended after the amendment of the bill, which required answer “to each and every allegation of the bill,” was a sufficient compliance with the rule of chancery practice, and the demurrer to the bill for want of proper footnote was properly overruled.

The decree appealed from will be affirmed.

Affirmed.

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