Babcock v. McJury

Sherwood, C. J.

Appeal from St. Joseph circuit, in chancery. The bill in this case is filed to remove encroachments upon a highway, and for an injunction restraining the highway commissioner from discontinuing same.

The prayer of the bill for general relief is that McJury may be required to remove said encroachments from said highway, and for such other relief against him as shall be agreeable to equity, etc. This is followed by a prayer for an injunction against Smith to prevent him from discontinuing said highway.

The defendants demur, alleging as grounds therefor—

“ 1. That the complainant has not, in and by his said bill, set forth and alleged any such privity and connection by or between the defendants as would entitle him to any relief against them jointly.

“ 2. For the reason that the said complainant, in his bill of complaint, does not set forth such a state of facts as to give this court any jurisdiction to make a decree in the premises.

“ 3. For the reason that said bill of complaint shows upon its face that complainant has an adequate remedy at law against said defendants.

“ 4. For the reason that said bill of complaint presents no case for the interposition of a court of equity.

“ 5. That the complainant has not, in and by his said bill, made or stated such a ease as entitles him, in a court of equity, to any relief from or against these defendants, or either of them, touching the matters contained in said bill, or any of such matters; and, lastly, that said complainant, in and by his said bill, does not ask for such relief in the premises as this court has any jurisdiction to grant, sitting as a court of chancery.”

The demurrer in this case is special, ana was overruled upon that,ground. No appeal lies to this Court from such an order or decree. We are therefore not called upon to consider the several grounds of demurrer. Act No. 58, Laws of 1883; Turck v. Soule, 55 Mich. 128 (20 N. W. Rep. 822).

The appeal must be dismissed, with costs.

The other Justices concurred.