193 So. 872 | Ala. | 1939
The application for rehearing was stricken by the Court of Appeals upon the theory, as we understand it, no brief had been filed by the State on original submission of the cause, and, ordinarily under Supreme Court Rules 38 and 44, as here interpreted (Birmingham Gas Co. v. Sanders,
It is clear enough the Court of Appeals would not have so ruled in this case with our opinion in the Bailey case before it. We think the opinion in the Bailey case should control the ruling here.
The proper order, under these circumstances, is for this Court to vacate the order of reversal and discharge entered by the Court of Appeals, and remand the cause to that court where it may be free to act as we have indicated in the Bailey case. William Jameson Co. v. Morgenthau,
The judgment of the Court of Appeals is accordingly vacated, and the cause remanded to that court for further proceedings therein.
Writ awarded.
Judgment vacated and cause remanded. *2
ANDERSON, C. J., and GARDNER, THOMAS, BOULDIN, BROWN, and FOSTER, JJ., concur.