delivered the opinion of the court.
Kreis v. County of Rock Island, 200 Ill. App. 418 (1916)
April 26, 1916
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Illinois Appellate Court
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Gen. No. 6,168
200 Ill. App. 418
Edward B. Kreis, Appellant, v. County of Rock Island et al., Appellees.
Gen. No. 6,168.
(Not to be reported in full.)
Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1915.
Reversed and remanded.
Opinion filed April 26, 1916.
Statement of the Case.
Bill in equity filed by Edward B. Kreis, complainant, against the County of Bock Island and others, defendants, to enjoin the county from building a jail. From a decree dismissing the bill, complainant appeals.
Edward B. Kreis, a citizen, real estate owner and taxpayer of the City of Bock Island, filed a bill in equity against the County of Bock Island, its supervisors and its jail building committee, to enjoin the county from building a new jail on the west side of the public square, and gave notice to defendants of an application for a temporary injunction. Defendants appeared and filed affidavits denying many of the allegations of the bill. Complainant moved for a rule on defendants to plead, answer or demur before the motion for an injunction was heard, and also moved to strike the affidavits filed by defendants from the files. Each motion was denied, the court heard the motion for an injunction upon the bill and affidavits and denied the motion and dismissed the bill. The affidavits and exhibits thereto were preserved by a certificate of evidence.
The bill charged that the County of Bock Island was indebted beyond the constitutional limit and that the cost of the new jail and other matters intended to be built in connection therewith would be so great that, *419even with the avails of the bond issue which the people had voted, still the indebtedness to be created by said work would be beyond the constitutional authority of the county to create.
Abstract of the Decision.
1. Injunction—when denial of motions erroneous. On an application for a temporary injunction where the defendants appeared and filed affidavits denying allegations of the bill, and the complainant moved for a rule on defendants to plead, answer or demur before the motion for the injunction was heard, and to strike the affidavits from the files, held denial of such motion was error.
2. Injunction—when dismissal of hill on denial of temporary injunction improper. On denial of a temporary injunction, the court should not dismiss the bill before any pleading by the defendants, unless it appears from the bill that it cannot be so amended as to state a case in equity.
3. Injunction, § 191 * —when hill for sufficient. Allegations in a bill to enjoin a county from building a jail,- stating the building thereof would raise the county’s indebtedness beyond the constitutional limit, held sufficient unless questioned by demurrer.
J. T. & S. R. Kenworthy and James F. Murphy, for appellant.
Floyd E. Thompson and Searle & Marshall, for appellees. -