Watson v. City of Dothan

On Rehearing

CATES, Judge.

Counsel for appellant submits that our foregoing opinion goes against the judgment and opinion of the Supreme Court in Burns v. Willis, 265 Ala. 497, 92 So.2d 38. Moreover, he calls attention to the City’s, brief wherein the following appears:

“ * * * Under the decision in the case of C. W. Burns v. Macon Willis, 265 Ala. 497, 92 So.2d 38, hn. 1, it would appear that appellant has cured said defect.”

Yet nowhere do we find the City formally withdrawing its motion to affirm because appellant failed to have the assignment of errors on transcript paper bound with (but inserted after) the record certified by the Circuit Clerk. Also, this omission of assignments in the record on submission of the appeal is ground for affirmance by an appellate court ex mero motu. See the quotation from Trussell v. Ripps, supra.

We have gone to the original record in. Burns v. Willis in the custody of the Clerk of the Supreme Court. The assignment of errors is handwritten, most likely by appellant’s attorney. The assignment has the same date as that shown on the Clerk’s filing stamp on the front cover page of the record.

From this we assume that in all probability counsel for appellant physically brought the record to Montgomery and wrote out his assignment in the Judicial Building. Since appellee’s counsel no doubt was not present in Montgomery when appellant filed the record, the copy of the assignment sent appellee (perhaps not being a carbon copy) must have stirred a wariness which moved him to move for affirmance.

Headnote number one in Burns v. Willis, supra, begins with the conclusory statement from the opinion that “assignments of error had been made in compliance with all of the provisions of Rule 1.” The opinion continues, expressly stating that the motion to dismiss was without “merit.”

Since only questions of fact were given as grounds for the motion, we consider that the characterization of the motion as being without merit could only imply that the grounds of the motion were factually inaccurate. Hence, if that be so, the motion was indeed not well taken. We see no conflict between Burns v. Willis (thus viewed) and Erwin v. Erwin, supra.

The writer is no admirer of Supreme Court Rule 1 in the hyper-technicality of requiring that assignment of errors be part of the record in civil cases instead of letting them be asserted in briefs. However, until this court, the Supreme Court or the Legislature changes this Rule, it should be followed in the interest of certainty.

The appellant’s application for rehearing is accordingly overruled.

Application overruled.

PRICE, P. J., and JOHNSON, J., concur in result.