*1 bring extended to Cross-appellant and the term cannot be prayed also coverage fixing of Com- the accident within of an additional repre fee for policy. senting his appeal. mercial’s ward on this The court entertains the view additional fee Appellee fact calls attention to the under $200 circumstances of the appellant’s brief does not conform that the case would be reasonable for guardian 1940, Supreme 9, Court Rule Code of ad court, litem’s services which shall require 7, Appendix. The rule does Title part assessed as a of the costs of this refer to as argument brief and appeal, and it is so parte ordered. Ex on, specifically insisted of error signments Taylor, 251 Ala. So.2d 656. altogether com requirement however, by appellant. Rule plied with decree below is reversed and a de- only, our directory and we exercise cree here will be rendered holding brief, considering appellant’s pellant, discretion Commercial Standard, is not liable Guy v. in this case. have done which we under the circumstances related. As all 499. Lancaster, 287(9), other adjudicated matters the decree is af- firmed. case, In the view we take of the it be- unnecessary comes to treat of the other part Affirmed in and in reversed and assignments appellant as error advanced rendered.
to reverse. Finally, we consider the cross- LIVINGSTON, J.,C. and STAKELY Lau assignment of R. Honorable William COLEMAN, JJ., concur. Mi guardian ten as ad litem for Suzanne Richard, chele in the de claiming error MERRILL, GOODWYN JJ., dis- only of the trial him awarding cree sent as to reversal. He contends that amount $350. True, testimony of inadequate. there was reputable attorney Mobile Bar than the higher
a reasonable fee would
court,
mini
fixed
amount
the Mobile
basis under
on a rate
mum fee
evi
supports this
Fee Bill
Association
Bar
Nevertheless,
(Code
the statute
dence.
up no standard
sets
180)
Title
In view say grossly trial court we cannot fixing in so its discretion amount abused fee.
36a *3 Patterson, Gen., Atty. and Wm. C. John Younger, Atty. Gen., Asst. for the Com- mission. in- Birmingham, Bishop,
Maurice F. tervenors. Godbold, C. Copeland, Hobbs & John
Godbold, appellee. Montgomery, for *4 COLEMAN, Justice. appellee has filed “Motion to Strike
Transcript Appeal.” and Dismiss This mo- tion, by appellee, appears argued as to rest propositions. on two First, appellee tran insists script be stricken must because the tran script not filed in of evidence was the office reporter register by the court within sixty days ap date on which the 97, peal provided by taken as Act 1956, Sp.Sess., page 143, Acts 1st which Parts, appears 1940, in Code Pocket 7, 827(1). ap As we Title understand § support reply motion, in pellee’s brief concedes, correctly, and we think appellee transcript filing evidence reporter equity gov cases court 97, supra, governed by Act No. but erned 769, 7, 1940, 37, Title Code and Rule by § the Revised Rules of Practice Supreme February beyond ninety days. Court as amended Thereafter 7, Code Smith Appendix filing Title 1940. time for in this court Blountsville, 262 Ala. only Bank of good extended for court So.2d upon writing cause petition shown which have adversary counsel must * * days’ ten no time
This has said that notice. amend XXI. Equity was fixed Rule 57 testimony ment to when August 22, recites: cause” out in the
must “written and filed request- “On Register, motion of the of testi dispense the note with ing prepare additional time in which to White, 507, 21 mony. White v. Transcript file Appeal nor Neither Title styled cause, is, above within Supreme time Court Rule 37 sets a tran reporter the court must file “Ordered the Court That the time script regis in the of evidence office filing Transcript Appeal Pro equity in an case. ter be, Supreme Alabama, Court of 769, supra, *5 by vision Rule is made hereby days thirty is extended for transcript filing as to entire time for transcript from the date said is due to is equity. It on an this court Supreme be filed in said Court.” can transcript of evidence obvious that the Appellee argues not be inserted in the record and filed that the order of until Supreme by register judge August 22, 1958, trial Court made is invalid been filed in his office because has first the record (1) fails to show: requirement to reporter. application extension, (2) If writing for the re filing placed appellee notice, time is to be that had good or (3) cause porter, statute would amendment of rule or granting for the extension. necessary. to (1) Rule 37 expressly provides for Second, appellee tran- insists that "petition a in writing” application when is script transcript entire (we understand the Supreme extension, to made Court for here) filed must stricken because it was provide but the rule does not so when such not in/ the Clerk filed office of the application is made judge.” to “trial Supreme sixty days Court within of the require petition If it had been intended to a taking appeal. of the writing could, judge, trial the rule presumably would, provided. have so Appeal July was taken Au- 1958. On expression The thing one is exclusion 22, 1958, gust judge trial an order made of another. Because the rule expressly re days extending thirty filing for the time for quires petition a written in one instance and Supreme the record in the Court. The requirement that omits in the other in September 29, filed here record was stance, opinion arewe that Rule 37 does day which was the last of the extended require petition not ap in writing where Supreme Rule time. Court 37 recites plication for extension is made to the trial part: pertinent judge. “ * * * judge may The trial extend Likewise, (2) filing transcript expressly for
the time rule provides good “adversary that record this court counsel for cause must have days’ ten thirty days, application for not exceed notice” when the shown may court,” extension is made to and this be made within extension “this but omits thirty days, provided requirement adversary additional notice to the application in no event shall extension when the such is made to the “trial project the transcript time for filing judge.” Consequently, opinion we are of an order the Alabama Public Service require not notice that Rule 37 does complainant com- ex- application for The is Commission. opposing counsel where un- operating mon judge. carrier motor vehicle trial tension made to the der Commission. certificate issued judge provides the trial (3) Rule respondent named Commission is cause good “for extend the time in the intervened Competing carriers bill. stated, rule does already shown.” As declaratory proceedings in the and are notice to petition require written pellants also. ex- adversary application for when counsel judge. the trial tension made to 18, 1957, complainant, On herein June require rule does written bill AAA, sometimes to as filed its referred The rule judge extending trial the time. complaint. prior bill avers not, however, require does January 7, 1957, AAA held Certificate “good the order state the cause” authorizing issued is based. transport general commodities Birmingham a common carrier between O’Rear, Harbin v. Highway and Dothan via U.S. applica appellee, cited and, points, serve all in addi- intermediate court, tion made to considered was that (1) thereto, to render service provides judge. not to the trial Rule 37 En- Slocomb, (2) Dothan and Dothan and upon good shown “this court for cause Abbeville; terprise, (3) Dothan and petition extension writing” may grant to and on *6 require that time. rule does not transport did was authorized to and good judge must cause to trial shown from, transport to, be- commodities and O’Rear, Harbin v. in the record. In points points lying(cid:127) all tween between all supra, requirement applied was the the rule petition of heretofore mentioned. On peti must be shown in the cause good Commission, AAA, hearing, after and court, to tion failure so and to 7, 1957, Certificate January amended was good the extension denied show cause perti- in 936 an order-which recites No. appeal rule was That and the dismissed. nent as follows: apply here where we consider does are “ application judge. hereby to found follows: ing the trial ‘It is “ present pub- and ‘That the future necessity require and lic convenience It established that error is will and hereinafter authorized presumed. the service In the absence not be fit, to willing and able applicant presumption contrary showing, the on re to perform such and service properly acted the trial court in ac view is provisions of the Davies, with Crossley conform with the cordance law. Act of 1939 Motor Carrier Alabama absence regula- requirements, rules and showing that the action of a trial thereunder; arbitrary Commission extending the time tions judge capricious, we will presume good [*] [*] [*] granting for his was shown cause “ applicant’s to amendment ‘That an Because valid extension extension. public convenience and certificate judge, the the trial record was granted granting issued necessity should be in this court the motion timely filed to sought to in this cause authority is due to and is dismiss * * * forth; set hereinafter extent denied. Merits. On the “ Ordered Therefore ‘It Is of Pub- Commission, Certificate That respondents appeal by is an This Necessity No. Convenience lic declaring void decree of the circuit hereby, be, amended to 7, 1957, same is tained January said order of authority include to in addition not be used in combination with authority to now contained therein contained in Certificate operate general as a common carrier 7, 1957, No. 936 to commodities, liquid except commodi- performing points service between regu- trucks, bulk, in tank over ties theretofore authorized be served lar routes follows: said Certificate one No. on the hand, and those authorized to “ Slocomb, ‘Commencing Ala at served said order of bama, Highway No. Alabama ’ ”*** 1957, on the other hand. Highway thence over Alabama No. Hartford, Geneva, via provided Samson order further that the Andalusia; Opp January 7, 1957, to Florala order of thence be amended “so 55; Highway thence there via shall be Alabama No. exercise attached Opp Highway privilege over No. thereby U. S. the” granted limita- Elba; High over thence Elba U. S. above finding set out 23, 1957; Enterprise; thence way provided No. 84 to ex- further “That Elba, Alabama, cept Highway provided 15 to over as herein order of said Florala, Alabama; Troy, January 7, 1957, also from shall remain as entered.” Highway 54 Alabama, parties appear Alabama agree over that the afore- Highway 12 intersection said averments are true. Samson, about miles northwest of The bill “subsisting avers there is Alabama; points of serving off-route controversy parties actual between” the and' miles, eight Shorterville and radius of prays for a declaration that the restriction Alabama, over including Dam site April 23, 1957, contained in the order of * * * Highway Alabama ’ ” void, null and and that AAA is authorized transport under its amended certificate petition On a for reconsideration of commodities between the named 7, 1957, *7 7, the 1957, certificate January and 1957, April 23, finding on made an as order points in addition thereto to the described follows, to wit: 7, in the of order 1957. “The has all Commission considered answer of The Commission and inter- testimony record of the of and the venors, May 19, 1958, as last amended avers argument thereon of counsel and finds 23, 1957, April duly that the was as follows: promulgated rehearing provided by on “ present T. That and the future 48, statute, 301(1), seq., Title et Code § public necessity convenience and re- Parts), (Pocket 1940 and denies that the by quire the authorized service the 23, April 1957, unreasonable, order is of original order this cause issued Jan- unlawful, any respect. arbitrary or The 7, 1957, uary applicant that is answer denies existence of an actual fit, willing properly per- able controversy, during and avers further that such form service to conform pendency declaratory suit, of AAA provisions of with the the Alabama filed with the an applica- Commission Act of 1939 and Motor Carrier the re- seeking general authority over routes regulations quirements, rules and the same between with removal of thereunder, subject Commission April 23, limitations the order of however, terms, following con- prays The answer 1957. bill and limitations in exercise ditions dismissed and denied. by privilege granted herein and original 7, order dated The granted circuit relief (cid:127)“ 1957, prayed to wit: ‘The con- for The AAA. Commission and
309 appealed. decree the intervenors have The contentions of AAA is whether the or- appealed rendered, hearing, after der is Ex- from was reasonable or unreasonable. pressed testimony way, question ore docu- heard tenus and another is wheth- parties. er mentary evidence order is am- submitted Commission
biguous unambiguous. or Appellants argue circuit that the There is order no contention assuming jurisdiction court erred April 1957, is void because the Com- no declaratory judgment where rendering parties jurisdiction mission lacked of either taken from the order was subject or matter. is that The contention 23, 1957, approved Act provided imposed the restriction added by the matter 1087; Acts, Pocket page July 1939 April 23, 1957, unreasonable. 301(27); Parts, Code Title trial court found the restriction to “con- taken appeals must be provides tradictory self-negating.” The decree final days thirty date of after the within recites: bill The instant the Commission. days thirty after filed more than was “The effect restriction im- argu April 23, Appellants’ posed by Commission’s order for an action rule ment based on the was to service 23 limit AAA’s declaratory cannot be made judgment in the area service new to intra-town been appeal. That rule has therein, for substitute town(s) since by this court. the law declared to be operating AAA from was restricted Hammond, 252 Ala. point Mitchell v. in the new area or from Milk 582; Alabama State any point rights Howie v. from had Board, Control serve before the extension of declaratory otherwise, were If rule AAA service granted. 7 was Thus whether proceeding lie to determine would the affected towns to and proceeding erro prior declaratory wholly eliminated. urban areas end to neous, would be no and there author- the Commission lieu thereof purpose a de litigation. kind had not ized service which not claratory judgment rights tois declare sought the need and convenience deter wholly unsupported and is theretofore determined of which was previously adjudicated. Back’s rights did this mine the evidence. Commission Bardo, Ky. evi- taking any S.W.2d additional v. Guardian without Ferree, Ky. 238, 960; the restriction Ferree The effect of dence. *8 appears be nullify finding to the Com- reasoning 1055. The to of S.W.2d was controversy January ad a has once been made its order of when mission April jurisdiction by having a order judicated 7, repeated in its of tribunal and matter, neces- the contro parties subject 23, public and convenience and of versy required one under authorized longer sity no an actual the service is 7, January for the service declaratory 154 743. judgment act. A.L.R. order of no practical effect was in restricted as at all. service The circuit court in the instant declaratory case relief decided was not “The also Court finds that it is nec- any right because of of barred from essary April to construe the order of agree of orders and we This order reiterated 23. the finding with that decision. public January 7 that of convenience necessity required sought relief here not a The review extension of service, applicant propriety of of found the ready, of order the Com- propriety willing able render might service, mission as such be to deter- posed appeal. question finding (and The contained mined on then an order 370 served,” thereon) to the restriction.
based as fore be authorized to one which authority Slocomb, un- point The of the Commission is be to “authorized to 7,” Section der Code of Title January served order of one said 301(10), place on cer- to restrictions which is Andalusia. by requirements that tificates is limited appears respect ambiguity with The same re- be reasonable be restrictions All Enterprise, Troy, to and Abbeville. public ne-
quired by convenience and to points three are “theretofore authorized cessity. finding The January author- be served.” The 7 order April 23 is not to a limitation Elba, point, to from a new izes service: and neces- public terms convenience Troy; to “off- Enterprise; Elba to case, ob- all, it is sity at and in points route and radius of Shorterville finding that viously in conflict with the * * * High- eight Alabama miles over required, is extension of service way placed evidence map The wholly No. 10.” il- makes the limitation since Shorterville, only also road to required. shows one lusory found the service to point, Abbe- new road runs from example, privilege ex- and that AAA’s to For April 23 limitation forbids serv- Dam ville. The to service the Ft. Gaines tend to ice from “theretofore authorized is a non-existent (Shorterville) Area served,” points. Thus only to the to new road Shorterville since the town, authority Abbeville, January to trans- gives 7 nearest order from Enterprise, Troy, Abbeville port point AAA be- is a served extended, April points, order takes there- to new but the 23 rights were fore its away Abbeville AAA cannot haul from conferred. fore Jan- * * uary April are contra- order order and the Shorterville. coexist, dictory. cannot The orders inspection of the orders An latter nullifies the former. it, an am- shows, view 7 23 as we For ex- biguity on the face orders. previously entertained This January 7, by Certificate ample, peals declaratory proceedings to con- transport AAA was authorized No. by the Commission. strue certificates issued Dothan and Slocomb. commodities Transfer Transfer. Co. Robins Smith au- point thus “theretofore Slocomb is 351; Co., Ala. Deaton So.2d in said Certificate be served thorized Birmingham-Tuscaloosa- Truck Line v. prior to 936” Line, Freight Ala. Mobile Motor in- amended the certificate 421; construed certifi- and has * * * over “authority operate clude declaratory proceedings in- where cates Commencing at regular routes follows: junctive Martin sought, relief also * * * * * * thence via Slocomb Lines, 261 Alabama Tank Truck Line v. Hartford, Geneva, Opp to Samson and Appellants * * Andalusia; declaratory concede that relief avail- however, imposed the limitation construe the orders the Commis- able to *9 * ** authority of said order “The in involved because their here brief sion * * * 7, 1957, may January not be used states: service performing “ ** posi- *. take theretofore authorized to be served said We do not the * * * declaratory judgment a No. 936 those au- Certificate tion that ac- to be served the said order not lie to thorized of will construe an order * * Commission, January we but take January appeal position authorizes service from that an Slocomb firm cannot be Andalusia, April guise but restriction of under the a declaratory taken of point action, 23 forbids service judgment from a “thereto- and the court cannot plication declaratory judg- proceed in for reconsideration rehear- such a or ing by or- part the commission.” Act ment action to amend a Acts of Alabama page 1064, der of the Commission.” proved 5, 1940; July 301(5), Title in the here, review Our review and the 1940, Recompiled Code declaratory proceeding, circuit court in a which principles is not controlled The circuit April court order held appeal applicable are is an where there effect, void and of no AAA is au- that Commission, and from an order of the transport thorized to de- as defined and question simply here is one of construction already scribed order. As Rob Smith Transfer Co. of orders. stated, the order of the Commission is the Co., supra. ins Transfer April order and the taken order court, together. So, is, question can a have undertaken show We declaratory in a proceeding, invalid declare grant correctly trial court found that merely part of an order the Commis- are placed grant and the limitation on the sion, or the court entire must declare the contradictory. wheth- question is The real order invalid. part correctly er circuit court set aside part the order the order left declaratory In a proceeding construe effect. decree of Mobile Circuit Court rendered opinion an that the order from order of We are this together order one court held and the constitute the decree order of the After Mobile court Commission. could be void declared Janu- decree; made, ary parties invalidating was interested made without the whole Avery provided Persons, application Freight for reconsideration as Lines v. 886; As but statute. we understand the conten- also held parties, the same
tions of the it is not controverted case Mobile court did power have authorizing reconsideration to decree that a could the statute carrier fully complied operate respects. with in all on all roads in the State because such adjudication beyond power final order embodies the order, January, modified, as of the court and and is one was void. This court held analogous judgment court, to the of a further that the decree or decree of Mobile effect, rehearing, legislative or a act set aside the order court on Com- finally passed after mission and remanded the reconsideration case to the Com- body. mission, although legislative sup- pro- This the decree conclusion did not ported by the statute authorizing reconsid- vide remandment. pertinent part which recites
eration bar, in the case at if it So were a statu- follows: tory appeal from the order, Commission’s “ * * If, *. after such circuit court could not reconsider- decree that transport rehearing, or shall ation accordance decision, January order, order, require- with originial merely but or could any respect unjust, to the pro- ment is in or unrea- remand Commission for further sonable, the may reverse, ceedings commission in accordance with the court’s de- modify Although declaratory or change, according- the same proceedings cree. are decision, order, Any requirement principles same ly. not controlled statutory appeals such apply made after reconsideration or review re- an or- *10 subject shall be der we hearing to the same do think not declaratory original decision, proceeding as an in a provisions the court can provided, however, authority a carrier has requirement, it declare that an or subject be not to further limitation shall without where Commission 372 operating authority, and we can- authority. We restricted limit the
has undertaken to not order that Commis- here find limitation opinion that are of authority result, sion As a grant intended to it. very negates the such that can, April rejected with- cannot be restriction think the court granted, we do not but authority causing remainder of the out by order, grant an construing the authority never grant to the Commission granted. not which the Commission has Consequently entire grant. intended to order must fall. super its the exercise of In util powers public visory over or executive appears argue that
ities,
quasi-legis
AAA
to
possesses
the Commission
appeal provided
by statute does
powers,
granting
as the
lative
such
White,
appeal
adequate
afford
on
Avery Freight Lines
relief because
franchises.
v.
or
setting
The Commission intrastate *11 State highways commerce proper secures the carrier first
unless et Leo al. MOORADIAN or certificate permit, and that certificate v. Service Public permit must be issued CANAL COMPANY. INSURANCE Per Lines Freight v. Avery Commission. Div. 24. sons, supra.
Supreme Alabama. Court of are March the Commission orders of courts, subj to construction ect Rehearing June Denied and not
but is to the Commission changes in applications for (cid:127)courts that should certificates
wording meaning addressed, Line Bir Truck Deaton Freight Motor mingham-Tuscaloosa-Mobile Line, supra. short, gave and the order authority. operating away took
Consequently no effect. the orders have oper- power grant The Commission ating do not have but the courts power, and, therefore, can- the courts grant not rewrite the as to au- orders so granted. thority the has not Commission appealed The decree from is affirmed in holding that the orders of together ambiguous taken are uncertainty, void but the re- decree holding versed as has the .right authority granted to exercise without restriction or It
limitation. does not (cid:127)good purpose would or could be served
remanding the and a cause decree will be bere rendered in accordance with this (cid:127)opinion. part
Affirmed in reversed and rendered.
LIVINGSTON, J., SIMPSON, C. GOODWYN, JJ., STAKELY concur. MERRILL, J., would affirm the decree and, therefore, lower dissents.