Ex parte City Council of Montgomery
| Decision Date | 19 December 1893 |
| Parties | EX PARTE CITY COUNCIL OF MONTGOMERY. |
| Court | Alabama Supreme Court |
Petition by the city council of Montgomery for a writ of mandamus against the chancellor of the southeastern chancery division and the chancery court of Montgomery county to compel a hearing of a demurrer, and a motion to dismiss a bill in equity brought by Mrs. Mary E. Winter against petitioner. Denied.
W. A Gunter, for petitioner.
The petitioner, the city council of Montgomery, prays that a writ of mandamus be issued out of this court to the chancellor of the southeastern chancery division, and to the chancery court of Montgomery county, commanding the said chancellor in vacation, and the said court in term time, to hear and determine a motion to dismiss, for want of equity, a certain bill prosecuted by Mrs. Mary E. Winter against petitioner and also to hear and give judgment upon certain demurrers interposed to said bill by the respondent thereto. The object and prayer of said bill was to enjoin temporarily until final hearing, and perpetually on the hearing, the enforcement of a decree for the sale of certain realty, which had been rendered in favor of the city council of Montgomery, and which it was proceeding to enforce. The temporary injunction was ordered and issued, as prayed. Thereupon the respondent moved "for an order discharging and dissolving the injunction heretofore granted, *** restraining respondent from enforcing its decree." The grounds of this motion are not stated. It was granted, and an order was regularly made dissolving the temporary injunction. From it an appeal was prosecuted to this court, the order being superseded, and the injunction restored, pending the appeal. The appeal is still pending here. After it had been taken and fully perfected, the respondent, "after due notice to the adverse party, submitted to the chancellor *** in vacation its demurrers to said bill, and a motion to dismiss said bill for want of equity." On this submission the chancellor made the following order: "The injunction in this cause being reinstated on appeal to the supreme court, which appeal is still pending, I decline to pass in vacation upon the demurrer and motion to dismiss the bill for want of equity." At the ensuing term, respondent asked the court to hear the demurrers interposed to the bill, or to set the same down for hearing on some day of the term; "and the court, being informed by the record, and otherwise, that an appeal is now pending in the supreme court in this case from an order dissolving the injunction heretofore granted herein *** a supersedeas having been given which restored the injunction," was of the opinion that it had "no right to proceed to hear the case to any further extent until said appeal is disposed of," and therefore refused to hear said demurrer. The demurrer in question went to the substance, not merely the form, of the bill. It challenged the sufficiency of the bill, both because of the absence...
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