Moore v. City of Fairhope
| Citation | 275 Ala. 506,156 So.2d 366 |
| Decision Date | 05 September 1963 |
| Docket Number | 1 Div. 159 |
| Parties | J. F. MOORE v. CITY OF FAIRHOPE et al. |
| Court | Supreme Court of Alabama |
Chason & Stone, Bay Minette, for appellant.
Ernest M. Bailey, Fairhope, for appellee Fairhope Lodge 1879.
This is a declaratory judgment proceeding (Code 1940, Tit. 7, § 156 et seq.) brought by appellant, a citizen and taxpayer of the City of Fairhope, against said City, Fairhope Lodge # 1879 of Benevolent and Protective Order of Elks of the United States of America, a corporation, and Fairhope Elks Club, a corporation. The respondents' separate demurrers to the bill of complaint, as last amended, were sustained. The complainant declining to plead further, a decree was rendered dismissing the cause and taxing the costs against him. Complainant brings this appeal from that decree.
There seems to be no question that the bill of complaint, as last amended, states the substance of a bona fide justiciable controversy which should be settled. The controversy concerns the validity of an ordinance of the City of Fairhope authorizing the sale of a portion of a public park located in said city and also the validity of the conveyance of said land, pursuant to said ordinance, to respondent Fairhope Lodge # 1879.
Apparently, the trial court sustained respondents' demurrers on the basis that the complaint shows on its face that complainant is not entitled to the relief prayed for. If this were the usual equity case, it would be appropriate to test the merits of the bill by demurrer, but in a declaratory judgment proceeding the only question ordinarily determined on dumurrer is whether the bill states the substance of a bona fide justiciable controversy which should be settled. The well-established rule is that if the bill shows such a controversy, it is sufficient to withstand a demurrer directed to it. In such situation, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. In other words, the test of the sufficiency of such a bill is not whether it shows that complainant will succeed in getting a declaraion of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794; East Gadsden Bank v. Bagwell, 273 Ala. 441, 444, 143 So.2d 438; City of Mobile v. Jax Distributing Company, 267 Ala. 289, 290, 101 So.2d 295; Shew v. City of Gadsden, 265 Ala. 253, 254, 90 So.2d 768; Little v. Redditt, 264 Ala. 371, 374,...
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VanLoock v. Curran
...accordance with his theory and contention, but whether he is entitled to a declaration of rights at all." Moore v. City of Fairhope, 275 Ala. 506, 507, 156 So.2d 366, 367-68 (1963). We, therefore, also reject appellees' mootness argument as a basis for dismissal of the action. The VanLoocks......
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Moss v. Williams
...rarely appropriate in declaratory judgment proceedings. Wallace v. Burleson, 361 So.2d 554, 555 (Ala.1978); Moore v. City of Fairhope, 275 Ala. 506, 507, 156 So.2d 366, 367 (1963). A declaration of the rights of a party under an employment contract is a proper subject for a declaratory judg......
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Shelly v. Woodyard, 78-876
...a declaration of rights at all. City of Mobile v. Gulf Development Company, 277 Ala. 431, 171 So.2d 247 (1965); Moore v. City of Fairhope, 275 Ala. 506, 156 So.2d 366 (1963); Robinson v. Robinson, 273 Ala. 192, 136 So.2d 889 (1962). Our case law has established the requirement that before a......
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City of Mobile v. Wooley
...v. Jax Distributing Co., 267 Ala. 289, 101 So.2d 295; East Gadsden Bank v. Bagwell, 273 Ala. 441, 143 So.2d 438; Moore v. City of Fairhope, 275 Ala. 506, 156 So.2d 366. Here, a bona fide justiciable controversy was raised by the allegations of the bill and the demurrer was properly overrule......