Kendall Alabama Co. v. City of Fort Payne, 7 Div. 221
| Decision Date | 28 April 1955 |
| Docket Number | 7 Div. 221 |
| Citation | 262 Ala. 465,79 So.2d 801 |
| Parties | KENDALL ALABAMA COMPANY v. CITY OF FORT PAYNE. |
| Court | Alabama Supreme Court |
Hawkins & Meadows, Fort Payne, for appellant.
Leonard Crawford and C. A. Wolfes, Fort Payne, for appellee.
This is an appeal from a final decree rendered by the Circuit Court of DeKalb County, Alabama, in Equity.
Appellant-complainant's amended bill of complaint alleged that, on or about 1 September 1952, complainant set about opening a gasoline service station in the City of Fort Payne, Alabama, which municipality is the respondent-appellee in this action. The bill of complaint alleged that on 12 September 1952, complainant-appellant installed two 4,000 gallon gasoline tanks at its service station in Fort Payne, Alabama. Subsequently thereto, on 16 September 1952, the appellee municipal corporation by ordinance attempted to limit the size of storage tanks at service stations to 1,100 gallons capacity. Among other features of the ordinance was the provisin making it unlawful to install tanks of a greater capacity than 1,100 gallons at any place where gasoline is sold at retail. On the day following the adoption of this ordinance, the municipal corporation notified complainant that it was in violation of this ordinance and would have to remove its 4,000 gallon gasoline tanks which it had installed on or about the 12th of September 1952. The bill further alleged that the respondent municipal corporation threatened to arrest the employees of the appellant company every day unless the tanks were removed.
Other facts were alleged in the bill of complaint which are not pertinent to the matter here considered on this appeal.
The prayer of the bill of complaint prayed for a decree enjoining respondent from attempting to enforce the ordinance against complainant pending the termination of the suit. Complainant further prayed that on final hearing a decree be entered permanently enjoining respondent from attempting to enforce the ordinance against complainant; or that a decree be entered declaring that complainant was not in violation of the ordinance, or declaring the ordinance void; or for general relief.
The cause was submitted on the pleadings and an agreed statement of facts with additional testimony of certain witnesses.
The trial court rendered its decree denying the relief sought on 26 May 1953. From this decree the complainant-appellant here prosecutes this appeal. The appellant took five assignments of error. This court has repeatedly, continuously, and consistently said that assignments of error that are not argued must be considered as waived. Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838. In the brief before this court, the appellant presents only two propositions of law. No argument whatsoever is advanced in support of Proposition II. Proposition I is directed to a definition of the word 'install' citing Funk and Wagnall's and Black's Dictionaries. The argument in support of Proposition I is brief and consumes less than a single page. Neither the proposition nor the argument is addressed to any specific assignment of error. While it is our feeling that this court should treat with the very right of every cause in so far as...
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National Association For Advancement of Colored People v. Alabama Flowers
...essential to an understanding of the assignments of error which are argued in appellant's brief.' Ibid. Kendall Alabama Co. v. City of Fort Payne, 262 Ala. 465, 466, 79 So.2d 801, 802, is to the same In State v. Farabee, 268 Ala. 437, 439, 108 So.2d 148, 149 150, the court said: 'As pointed......
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Wolfe v. Isbell
...short and simple, and when compliance with the cited rules is not essential with the cited of the argument. Kendall Alabama Company v. City of Fort Payne, 262 Ala. 465, 79 So.2d 801; McMillan v. Fabretta, 231 Ala. 188, 163 So. 793; Brothers v. Brothers, 208 Ala. 258, 94 So. 175; City of Mon......
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Brooks v. Everett, 7 Div. 504
...may, in its discretion, consider those points on their merits. Edge v. Bice, 263 Ala. 273, 82 So.2d 252; Kendall Alabama Co. v. City of Fort Payne, 262 Ala. 465, 79 So.2d 801. In our opinion, appellant's brief warrants our consideration of assignments of error to the effect that the trial c......
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City of Prichard v. Geary
...on that property. The error first assigned by the appellant was not argued and is therefore waived. Kendall Alabama Company v. City of Fort Payne, 262 Ala. 465, 79 So.2d 801. Before giving consideration to the merits of the case, we must dispose of an assignment of error made and seriously ......