This cause, following submission on brief and oral argument, was assigned to Mr. Justice SIMPSON for the preparation of an opinion. Upon original consideration, the majority of the Court, consisting of GARDNER, C. J., THOMAS, FOSTER, and LIVINGSTON, JJ., not differing with the opinion of Justice SIMPSON as to the general rules of law therein announced, did differ, however, as to whether or not the demurrer was sufficiently specific to point out the defect of the petition treated in the opinion of Justice SIMPSON. The views of the majority were expressed in the opinion on this point by Mr. Justice FOSTER, which immediately follows the opinion of Justice SIMPSON set out above with the concurrences therein disclosed.
Mr. Justice BROWN concurred in the opinion of Justice SIMPSON, as likewise appears in the concurrences noted. Justice LAWSON, being a member of the Board of Trustees of the University of Alabama, *Page 572 was disqualified, and of consequence did not participate in the consideration of the cause. The ruling of the majority, therefore, resulted in the reversal of the judgment of the court below.
Subsequent to the announcement of the decision, and prior to a consideration of the cause on application for rehearing, the death of Justice THOMAS occurred, and he was succeeded upon the Court by Justice STAKELY. Upon the cause coming on for reconsideration Justice STAKELY concurred in the views of Justice SIMPSON. The result was that the Court was equally divided, and the necessity arising therefor, the CHIEF JUSTICE, pursuant to Sec. 32, Title 13, Code 1940, requested Honorable VIRGIL BOULDIN, Supernumerary Judge of the State of Alabama, to participate in a consideration of the cause. Thereupon, Judge BOULDIN found himself unable to agree with either of the opinions heretofore announced by the Court, and entered a separate opinion expressive of his own views, the result of which was a concurrence in the conclusion reached in the opinion of Justice FOSTER that the judgment should be reversed and the cause remanded.
On rehearing Justice FOSTER extended his original opinion, concurred in by GARDNER, C. J., and LIVINGSTON, J., as shown. The opinion of the Supernumerary Judge, expressive of his views and resulting in a concurrence with the conclusion Mr. Justice FOSTER reached, immediately follows. Justices BROWN, SIMPSON, and STAKELY adhere to their views, as expressed by Justice SIMPSON.
It results, therefore, that the judgment of reversal stands and the application for rehearing must be overruled.
Application overruled.