Walters v. Fredericks

Lowe C. J.

This was a proceeding by injunction to abate an alledged nuisance. Defendant appears, demurs to the equity of the bill, also answers; and after filing his answer, moved the court to dissolve the injunction, which the court not only properly sustained, as we think, but also upon the same motion dismissed the suit at the cost of plaintiff. This last order of the court is assigned for error, and is well taken. The motion did not ask for the dismissal of the suit, but simply that the injunction be dissolved. The record does not show that there was any hearing upon the demurrer, or upon the case itself as made by the bill and answer. The injunction being dissolved, the case should have been retained for hearing upon the issues made before the court, so as to afford the plaintiff a day in court upon his complaint.

The order dissmissing the suit is reversed and the cause remanded.