Holcomb Ex Rel. Holcomb v. Escambia County Hospital Board

278 So. 2d 699, 291 Ala. 114, 1973 Ala. LEXIS 1062, 290 Ala. 114, 291 Ala. 118

• Court: Supreme Court of Alabama
• Decided: April 12, 1973
• Docket: SC 130
• Status: Published

Opinions

On Rehearing

HARWOOD, Justice.

Upon original deliverance a majority of the justices of this Court concluded that the judgment entered in this cause should be reversed and remanded. An application for rehearing was duly filed. Upon further consideration and in the light of the application for rehearing, a majority of the justices have now concluded that the application for rehearing should be granted and the judgment of the court below affirmed.

The result of such action is stated by the Supreme Court of Mississippi in White v. State, 190 Miss. 589, 195 So. 479, to be:

“It was true at common law, and the principle is now sustained by the weight of authority, that an order granting a rehearing in a proper case operates to reverse or vacate and set aside the original decision of the appellate court.”

In Bally v. Guilford Township School Corporation, 234 Ind. 273, 126 N.E.2d 13, it is stated:

“Granting a rehearing recalls the former opinion of this court. Ewbank’s Manual of Practice (2nd Ed.) § 246, p. 476.”

To like effect see Atlantic Greyhound Corp. v. Public Service Commission et al., 132 W.Va. 650, 54 S.E.2d 169.

Statements in accord with principles above enunciated may also be found in 5 C.J.S. Appeal and Error, § 1446 and 5 Am.Jur.2d., Appeal and Error, Sec. 984.

In Stoke v. Converse, 153 Iowa 274, 133 N.W. 709, the court observed:

“Had the opinion in 8 Iowa, 368, been withdrawn, it likely would not have appeared in the official reports, for the granting óf a rehearing has the effect to withdraw the opinion previously filed.”

The basis upon which a majority of the justices have concluded that the application for rehearing should be granted is that at the original conference of the court when this case was presented the matter of the sufficiency of the assignments of error was not considered.

The appellant has made three assignments of error which read:

“No. 1. If the cause of action, as stated in the declaration arises from a breach of promise, the action is ex contractu.

“No. 2. When a complaint shows that a breach of contract is also a negligent failure to perform a duty which the law imposes by reasons of such contract, the injured party may sue for breach of contract when he is a party to it.

“No. 3. Where a breach of contract lies in the failure to perform as agreed upon, or in an omission or failure to enter into the duty to perform, however negligent such failure or omission might be, an action in assumpsit'for breach of a contract will arise.”

Each of the above assignments constitutes nothing more than statements of general principles of law. No ruling of the trial court is mentioned. In assigning errors, an appellant must specify the action of the trial court which he would have reviewed and revised; and only adverse rulings of the trial court are subject to assignment as error and reviewable. The office of an assignment of error is not to set forth general legal principles or contentions, but solely to inform the court that an appellant assigns as erroneous a certain specified ruling.

The above principles are set forth in a myriad of our cases, and we see no need to again cite individual cases in support of the above statements. These cases may be found in Alabama Digest, Vol. 2A, Appeal and Error, @=>Nos. 718 and 719(1).

By no construction, however liberal, can the purported assignments of error be considered as sufficient to invite a review of this judgment. The application for rehearing is therefore due to be granted, the original opinion and judgment of this court should be set aside, and the judgment appealed from is due to be affirmed. It is so ordered.

Application for rehearing granted.

Original opinion and judgment set aside.

Affirmed.

MERRILL, BLOODWORTH, MADDOX, and McCALL, JJ., concur. HEFLIN, C. J., and COLEMAN, J., concur specially. FAULKNER and JONES, JJ., dissent. HEFLIN, Chief Justice (concurring):

. This case has been decided on a “technicality” rather than its merits, and for the reasons stated in my special concurring opinion in Midstate Homes v. Roberts, 288 Ala. 86, 257 So.2d 333 (1972), I concur in the majority opinion.