62 Ind. App. 37 | Ind. Ct. App. | 1916
Appellees urge ’ the insufficiency of the complaint as a basis for injunctive relief, on the ground that the material elements of what might otherwise be a cause of action, if sufficiently pleaded, appear only by way of recital or conclusion. As the action was commenced in September, 1913, the sufficiency of the complaint must be determined in the light of §343a Burns 1914, Acts 1913 p. 850, to the effect that in all pleadings, where the sufficiency of the same is called in question, all recitals therein and all statements contained in any participial expression shall be held to be allegations of fact, whenever necessary to the sufficiency thereof, and that except as against a motion to make more specific, all conclusions stated therein shall be held to be the allegations of all facts required to sustain such conclusions when the same are necessary to the sufficiency of the pleading. Proceeding to determine the sufficiency of the complaint, it is provided by statute that whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property so as to essentially interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. §291 Burns 1914, §289 R. S. 1881. There are other provisions that where a proper case is made, the nuisance may be enjoined or abated, and damages recovered therefor, and that the action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.
In 1881, the legislature of this State, by an enactment preserving the spirit of a prior act, provided that there should be no distinction in pleading and practice between actions at law and suits in equity, and that there should be but one form of action, denominated a civil action for the enforcement or protection of private rights and the redress of private wrongs. §249 R. S. 1881, §249 Burns 1908. That statute was enacted to the end that a complaining party might be awarded such relief as the facts stated in his complaint, if proven, entitles him to. 1 'Work’s Practice §177. Said statute was amended in 1911, by the addition thereto of the following: “All courts which are vested with jurisdiction both in law and equity may, to the full extent of their repective jurisdictions, administer legal and equitable remedies, in favor of either party in one and the same suit, so that the legal and equitable rights of the parties may be enforced and protected in one action.” §249 Burns 1914, Acts 1911 p. 415. In harmony with the spirit of the code as revealed by the foregoing statute and amendment, it is held that in an action prosecuted primarily for an in june
If follows that, under the facts contained in said affidavits, only the equitable' question involved rather than the entire case has become moot. The motion to dismiss is therefore overruled, and the judgment reversed, with instructions to overrule the demurrer to the complaint, and for
Note. — Reported in 112 N. E. 538. Business and machinery that may be enjoined as nuisances, 51 Am. Rep. 467.