Ex parte Colonial Refrigerated Transportation, Inc.

261 So. 2d 779, 288 Ala. 434

• Court: Supreme Court of Alabama
• Decided: March 9, 1972
• Docket: 6 Div. 906
• Status: Published

Opinions

LAWSON, Justice.

We granted the petition for writ of certiorari filed by Colonial Refrigerated Transportation, Inc., a corporation, Hon. Thomas E. Huey, Jr., and Hon. Whit Wind-ham, Judges of the Circuit Court for the Tenth Judicial Circuit of Alabama, to review the decision and judgment of the Court of Civil Appeals in the case of Ex parte State of Alabama ex rel. Attorney General (In re State of Alabama v. Colonial Refrigerated Transportation, Inc., a Corporation), 48 Ala.App. 51, 261 So.2d 773.

The writ was duly issued and the cause was submitted here on December 7, 1971, upon the transcript, briefs and oral argument. — Supreme Court Rule 39, as amended.

The Court of Civil Appeals held, in effect, that the State of Alabama, under the provisions of § 477, Title 7, Code of 1940, can propound interrogatories to the other party in a civil suit at law.

That holding is in direct conflict with the holding of this court in Ex parte Loveman, Joseph & Loeb, 241 Ala. 379, 2 So.2d 446, which has not been overruled by this court. See City of Prichard v. Hawkins, 255 Ala. 676, 53 So.2d 378; Ex parte State ex rel. Garrett, 260 Ala. 18, 68 So.2d 541; Louisville & N. R. R. Co. v. State, 276 Ala. 99, 159 So.2d 458.

In Ex parte State ex rel. Garrett, supra, we did not depart from our holding in Ex parte Loveman, Joseph & Loeb, supra, or from the holding in State ex rel. Smith v. McCord, 203 Ala. 347, 83 So. 71, upon which the conclusion in Ex parte Loveman, Joseph & Loeb, supra, was grounded. In Ex parte State ex rel. Garrett, supra, we said of the two cases last cited: “We do not consider those cases as controlling here.” In other words, those cases were distinguished.

The Court of Civil Appeals recognizes that this court did make that distinction, but proceeds to say: “The distinction relied on by the court in Garrett, as between bills of particulars and written interrogatories, strikes us as being grounded on quicksand.” In its opinion the Court of Civil Appeals further observed: “We . believe that Garrett had the effect of overruling McCord, and in turn, Loveman.”

We entertain the view that the distinction made in Ex parte State ex rel. Garrett, supra, is a valid one and, as indicated above, we have not overruled the holdings in Ex parte Loveman, Joseph & Loeb, supra, or State ex rel. Smith v. McCord, supra.

Since Garrett was decided, we have cited the cases last mentioned with approval. See Louisville & N. R. R. Co. v. State, 276 Ala. 99, 159 So.2d 548.

It is provided in § 10, Act 987, approved September 12, 1969, Acts of Alabama 1969-70, Vol. II, p. 1744, as follows:

“Section 10. The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the supreme court as provided by section 140 of the Constitution of the state.”

The provisions just quoted are carried in the 1969 Cumulative Pocket Part to Vol. 4 of the 1958 Recompiled Code of Alabama as § 111(10), Title 13.

We conclude that the judgment of the Court of Civil Appeals must be reversed.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court.

Reversed and remanded.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH and McCALL, JJ., concur. HEFLIN, C. J., concurs specially. MADDOX, J., dissents.