Wells Co. v. Lane

The judgment of this court, affirming the judgment of the trial court in this case, was by the Supreme Court reversed upon the sole ground, as we read the opinion of that court, of error committed by us in holding that a certain letter, quoted in full in the opinion of the Supreme Court, was admissible in evidence. Further consideration of the case reveals that the letter, the admission of which in evidence was made the subject of the Supreme Court's ruling, was offered and admitted in the court below without objection. Inadvertently we failed to make this statement in our original opinion, and we deem it only just to now, by making it, correct the impression the Supreme Court naturally had that the letter was admitted in evidence over appellant's timely objection.

As no error could be predicated upon the admission of this letter in evidence, it going in without objection, and as no other ruling of this court was held by the Supreme Court to be erroneous, we are constrained to hold, as we do hold, that the judgment of the lower court should be affirmed.

Appellant insists that appellee's counsel, having failed to comply with Supreme Court rule 13 by filing a brief in this court within the required time after submission of the cause, should under Supreme Court rule 38 have his present application to this court to correct or modify its opinion as above herein noted stricken. We merely observe that the Supreme Court, in the case of Caraway v. State, 207 Ala. 588, 93 So. 548, has said that this "rule provides in effect that it need not be applied in any case in which the ends of justice may appear to require further consideration."

We avail ourselves of this holding in this case, although we are of the opinion that it would be our duty to take the same action in the absence of any motion, in order that a judgment of reversal may not be predicated upon a ruling of the trial court to which no objection was made or exception reserved.

Affirmed.