(concurring specially). I am unable to concur in the majority opinion disposing of this cause upon the application of a rule of practice, thereby pretermitting a consideration of its merits.
"Suits of this nature are regarded as of a tripartite character, wherein the public occupies in effect the position of a third party, and the court is bound to act for the public in such cases, though, of course, the rights of the parties themselves must be fully respected. * * * We apprehend, therefore, that in cases of this character questions of mere legal niceties in regard to pleading should not interfere with the meritorious consideration of the cause." Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A. 1917D, 773.
The foregoing quotation is particularly applicable to the instant case.
Chancery rule 93, however, has, in my opinion, no application to a case of this kind. The reference was merely to aid the chancellor in ascertaining the proper amount to be allowed complainant for support pending this litigation. The register was not called upon to report on any conclusion of facts, but merely to give his judgment or opinion on the evidence submitted before him as to the proper allowance for alimony. The only proof offered was by the complainant. The respondent did not testify, nor does he offer any contradiction of the evidence of the complainant.
Rule 93 requires the solicitor to note at the foot of each exception to the conclusion of facts that part of the evidence upon which he relies in support of his exception, and as there were no conclusions of fact by the register, and no contradictory evidence, it is rather difficult to see how the solicitor could have observed this rule of practice.
I am of the opinion rule 93 was never intended for a situation as here presented, and have been unable to find where it was before given application to such a case. The authorities cited in the majority opinion are not analogous. The report of the register in this case is not a conclusion of facts, but merely a statement of his judgment or opinion as to the proper amount to be allowed. Rule 93 therefore does not apply.
In Curtis v. Curtis, 180 Ala. 70, 60 So. 165, the rule was not complied with, but the chancellor nevertheless considered the evidence and the exceptions, and this court reviewed the rulings thereon in order that justice might be fully done. The rule was merely made for the convenience of the court, and should not be extended to embrace cases of this character. The public being interested, no technical considerations should stand in the way of the determination of the cause upon its merits. Spafford v. Spafford, supra.
The evidence in the instant case is embraced within a narrow compass, and upon a consideration of this testimony uncontradicted, I am persuaded that the decree of the chancellor should not be here disturbed. This decree merely fixes the amount for support pending this litigation, and in no manner prejudices a full consideration of the cause when the entire proof is heard.
I therefore concur in the result denying the writ, but respectfully dissent from the prevailing opinion. *Page 362