The opinion
On Rehearing.
PER CURIAM
[2,3]
The minute entry quoted affirms the fact to be that the non-suit was suffered by the state because of the adverse ruling on the respondent’s demurrer to the original petition. The subsequent amendment of the petition—whereto the same demurrer was refiled and sustained—did not operate to negative the verity of the stated recital of fact that the nonsuit was taken
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by the petitioner because of the adverse ruling on demurrer to the original petition. Berlin Mach. Works v. Ewart, 184 Ala. 272 , 63 South. 567 , interpreting Engle v. Patterson, 167 Ala. 117 , 52 South. 397 . It is quite clear from the record that the petitioner’s purpose, in amending, was to perfect the petition as against some of the grounds, with the effect to throw: into bolder relief the chief objection taken by the dem'urrer to the propriety of the petitioner’s effort to have the court inquire into respondent’s authority to exercise the functions of “health officer of Lauderdale county.”
Assuming that a judgment of nonsuit may enter in this character of proceeding and that an appeal lies from this judgment, the action of the court below in sustaining the demurrer to the original petition is reviewable under our" statute relating to nonsuits. Code, § 3017.