Bolton v. Barnett Lumber & Supply Co.
| Decision Date | 23 January 1958 |
| Docket Number | 6 Div. 849 |
| Citation | 267 Ala. 74,100 So.2d 9 |
| Parties | A. P. BOLTON and Katherine W. Bolton v. BARNETT LUMBER & SUPPLY COMPANY. |
| Court | Alabama Supreme Court |
Geo. I. Case, Jr., and Ed. W. McDonald, Birmingham, for appellants.
Earl McBee, Birmingham, for appellee.
This is an appeal by two of the respondents below from a final decree rendered against them by the circuit court of Jefferson County, in equity, in a suit brought by appellee to establish and enforce a materialman's lien under Code 1940, Tit. 33, § 37 et seq.
Appellee insists that appellants' brief does not comply with Supreme Court Rule 10, Code 1940, Tit. 7 Appendix, p. 1008, superseded by Rule 9 of the Revised Rules of the Supreme Court, 261 Ala. XIX, XXII, and, for that reason, the case should be affirmed. This Rule, among others, was adopted to aid the court in considering the errors relied on for reversal. With respect to the Rule, both old and new, and old Rule 11 (Revised Rule 10), prescribing the manner of preparing the appellant's and appellee's briefs, we have said that
We see no reason why there should be any real difficulty in complying with these rules. However, we have held that they are directory and if appellant's brief, even though not in compliance with the rule, fairly and helpfully makes the points upon which appellant relies, this court may, in its discretion, consider it. Edge v. Bice, 263 Ala. 273, 275, 82 So.2d 252; Quinn v. Hannon, 262 Ala. 630, 633, 80 So.2d 239; Simmons v. Cochran, 252 Ala. 461, 463, 41 So.2d 579. While an order of affirmance might, with justification, be entered for insufficient compliance with the rule, we prefer to exercise our discretion in the matter and give consideration to appellants' brief. But appellee further insists that no reference is made in the brief proper to a single assignment of error and that this failure constitutes a waiver of all the assignments of error; and that if the inclusion of the assignments of error in the 'forepart' of the brief should serve to avoid a waiver, then they should be given consideration under the rule of review applicable when assignments of error are argued in bulk. We will not treat all the assignments as waived, but see no escape from treating them as argued in bulk. This court has consistently held that 'where several assignments of error are grouped and argued together in brief, and one is found to be without merit, the court will not consider the others.' First National Bank of Birmingham v. Lowery, 263 Ala. 36, 41, 81 So.2d 284, 287; Gulf M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So.2d 449; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305; Sovereign Camp W. O. W. v. Davis, 242 Ala. 235, 5 So.2d 480; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480. The rule permitting several assignments of error raising kindred questions to be presented under the same argument (Moseley v. Alabama Power Co., supra) is not applicable to this case.
One of the assignments of error goes to the sufficiency of the statement of lien filed pursuant to Code 1940, Tit. 33, § 41. The insistence, as we understand it, is that the statement is not properly verified. With this we are unable to agree. Accordingly, in conformity with the stated rule of review, we will limit our discussion to this one question.
Section 41, Tit. 33, supra, provides that 'it shall be the duty of every person entitled to such lien to file in the office of the judge of probate of the county in which the property upon which the lien is sought to be established is situated, a statement in writing, verified by the oath of the person claiming the lien, or some other person having knowledge of the facts' and that 'unless such statement is so filed the lien shall be lost.' It is also provided that 'said verified statement may be in the following form, which shall be deemed sufficient: (setting out the form).' A comparison of the statement filed by appellee with the...
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National Association For Advancement of Colored People v. Alabama Flowers
...Agreeably with the practice thus established, the brief for appellant has been considered.' More recently, in Bolton v. Barnett Lumber & Supply Co., 267 Ala. 74, 75, 100 So.2d 9, the court stated again that its rule governing the form of an appellant's brief was 'directory' and said that 'i......
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National Ass'n for Advancement of Colored People v. State
...and argued together in brief, and one is found to be without merit, the court will not consider the others. Bolton v. Barnett Lumber & Supply Co., 267 Ala. 74, 100 So.2d 9. Assignments of error 10, 16 and 23 are argued together in Subsection V of appellant's brief. No. 10 is unrelated to th......
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Ramos v. Fell
...kindred to that raised by Assignment 12. It follows, therefore, that we will not consider Assignments 15 and 16. Bolton v. Barnett Lumber & Supply Co., 267 Ala. 74, 100 So.2d 9, and cases The plaintiff claimed punitive damages and that issue was submitted to the jury. It is only where the t......
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Pak-A-Sak of Ala., Inc. v. Lauten
...unrelated assignments of error are argued together and one is without merit, the others will not be considered. Bolton v. Barnett Lumber & Supply Co., 267 Ala. 74, 100 So.2d 9, and cases cited; Thompson v. State, 267 Ala. 22, 99 So.2d 198. The rule permitting several assignments of error ra......