
    Walters v. Fredericks.
    1. Dissolving injunction .and dismissing bill. The court below upon the hearing of a motion to dissolve an injunction, dissolved it and dismissed the bill. Held that as the defendant asked only for a dissolution of the injunction, it ivas error to dismiss the bill.
    
      ■Appeal from Lee District Court.
    
    Friday, October 12.
    Injunction commanding the defendant to remove a dam which plaintiff alleges diverted the water from its natural course over his, defendant’s, land, and caused it to run over plaintiff’s to his great damage &c. The other facts material to an understanding of the point decided are stated in the opinion of the court.
    
      J. M. Bech for the appellant.
    
      Thos. S. Espy for the appellee.
   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.  