— A motion is made by the appellee to dismiss the appeal, on the ground that the transcript *260was not filed in time. The appeal was taken December 5, 1906, and the transcript was filed on February 12, 1907, being the second day of the week, in which the cases from the Second Division were subject to call ;h this court. Our rule No. 45 (8 South, v) provides ,-n such cases: “Unless the transcript is filed with the clerk of this court by twelve o’clock noon of the first day of the first week during which such case is subject to call in this court, it shall be within the power of this court to tax the appellant with all or any part of the costs of appeal”; and the rule goes on to state that the court may, in its discretion, dismiss the appeal on motion, or may decline to impose all or any of the penalties.
The insistence of appellee is that said rule of this court is in irreconcilable conflict with sections 452 and 472 of the Code of 1896, and that the result is that said rule is void and of no effect, so that, after the time fixed by statute for the filing of the transcript, the appeal is functus officio. Section 452, in so far as it applies to this appeal, provides that: “The transcript must be filed on or before the day to which the appeal is returnable.” Section 472 merely provides that the appeal mud; not be treated as discontinued, “unless the appellee shall duly moye for a discontinuance, after legal cause for discontinuance has occurred.” It will be noticed that, while the statute fixes a day when the transcript must be filed, yet it does not prescribe any penalty, nor state what shall be the result of a failure to file it on the day named.
There can be but two ends to be accomplished by the filing of the transcript within a certain time. One is to enable this court to dispose of its business with dispatch and in an orderly manner, and the other to give to the appellee an opportunity to examine the transcript and *261prepare his defense. These are matters which properly, address themselves to the discretion of this court, and it was evidently so left by the law-making department of the state, in order that this court might further regulate the matter by it's rules. This court might, without acting in contravention of the statute, have declared by its rules that the result of a failure to file the transcript in lime would be only to entitle the appellee to a continuance of the case to the next call of the docket; but it took the wiser course of reserving to itself to exercise its discretion according to the circumstances of each case, and either tax the party with costs, dismiss the appeal, or make such order as the circumstances seem to-demand. If the appellee shows the court that, by reason of the transcript not being filed at an earlier day, he. has not the requisite time to examine it, the court will see that he is not prejudiced thereby; but, as the case cannot be considered until the week set for the hearing of that division, we do not think the appeal should be-dismissed for not having been filed before.
The cases cited by counsel wherein a chasm had been created by a failure to file the transcript during the term stand upon a different basis. The motion to dismiss the appeal is overruled.
This was an action by appellee against the-appellant for damages for the burning of the plaintiff’s -warehouse and contents, which it is claimed were burned as the result of defendant’s negligence.
The first assignment of error insisted upon by the appellant is that the court erred in overruling the defendant’s demurrer to the first count of the complaint. While the writer of this opinion is disposed to agree with the views expressed by Justice Tyson in his dissenting opinion in the Marbury Lumber Co. Case, yet' this court has adhered to the ruling in that case on the *262subject of necessary allegations of negligence in a complaint, and under said rulings the demurrer to the first-count was properly overruled. — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 U. R. A. 620; A. G. S. R. R. Co. v. Clark, 136 Ala. 450, 34 South. 917.
■ The demurrer to the second count was also properly overruled. — Authorities supra, and A. G. 8. R. R. Go. v. Taylor, 129 Ala. 238, 29 South. 673; A. G. 8. R. R. Go. v. Johnston, 128 Ala. 283, 29 South. 771. Thus far the court is unanimous.
As to the demurrers to pleas (a), (b), and (c), the majority of the court hold that the demurrers were properly sustained, with which opinion the writer differs, and expresses his views hereafter.
Nothing material to the other pleas is added by the pleas (d) and (e), as the plaintiff was not under any obligation to keep fire hose in the warehouse,- nor could it be held liable for a mistake in judgment as to the best method of extinguishing the fire.
The demurrers to the second and third pleas were properly sustained.
The court also hold that the demurrers to pleas (4) and (5) were properly sustained, as they do not state facts showing what preventive methods the plaintiff had in its power to arrest the progress of the fire.
The judgment of the court is affirm.ed.
Tyson, C. J., and Haralson, Dowdell, Anderson, Denson, and McClellan, JJ., concur.