Campbell v. Water Wks. Gas Bd. of Town of Red Bay

HEFLIN, Chief Justice

(concurring specially) :

This case has been decided on a technicality rather than on its merits. Since the legislature conferred “rule-making power” on the Supreme Court by Act No. 964, Acts of Alabama, 1971, Regular Session, approved September 7, 1971 (appellate practice) and Act No. 1311, Acts of Alabama, 1971, Regular Session, approved September 17, 1971 (civil trial practice), I have expressed the hope that new systems of rules would be adopted governing practice and procedure in appellate practice and in civil trial practice which would promote the speedy determination of litigation on the merits of the cases rather than on technicalities. However, in a number of cases I have concurred with the majority in the disposition of cases on technicalities pending the activation of new systems of rules in an orderly fashion following the receipt of recommendations from advisory committees. See my concurring opinions in Mid-State Homes, Inc. v. Roberts, 288 Ala. 86, 257 So.2d 333; Quarles v. State, 288 Ala. 275, 259 So.2d 823; Metzger Brothers, Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398; Ex parte Colonial Refrigerated Transp., Inc., 288 Ala. 434, 261 So.2d 779; Brooks v. Brooks, 289 Ala. 186, 266 So.2d 746; and Reynolds v. Burkhalter, 289 Ala. 528, 268 So.2d 802.

Consistency demands that I continue to follow this same approach and concur in the majority opinion in this case.

The new Alabama Rules of Civil Procedure, promulgated by this court on January 3, 1973 and which go into effect on July 3, 1973, would, in my judgment, provide for the determination of this cause on its merits. Rule 58(b) of the new A.R.C.P. provides as follows:

“(b) Sufficiency of Judgment, Order or Minute Entry Thereof. A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication. The judgment or order or the minute entry thereof will be sufficient if it indicates an intention to adjudicate considering the whole record, and if it indicates the substance of the adjudication.”

Would that the new rules were in effect! However, in keeping with my position that I follow prior decisions of this court until such rules go into effect, I am constrained, albeit reluctantly, to concur with the majority.