ON REHEARING
On rehearing, the appellee points out that assignment of error 4, which we held good, was not only argued with faulty assignments 1, 2, and 3, but was also argued with every other bad assignment, and that we overlooked this latter argument on original deliverance.
In the opinion we held that assignments 1, 2, and 3 were not sufficient to invite the court's attention and would not be considered, but we said that we were unwilling to hold that assignment 4 failed because argued in bulk with those first three assignments. We said this:
"* * * All four of these purported assignments are related in that they simply assert error as to the decrees. The same supporting argument is addressed to all of the assignments. We are unwilling to hold under this situation that *Page 638 assignment 4 fails because argued in bulk with the three general assignments."
The appellee contends that since assignments 1-4, and 5 D, 5 E, 7 and 8 are argued in bulk, and all but 4 are in some manner faulty, consideration of 4 is to be pretermitted. For the reason outlined herein we feel this argument has no applicability in the present case.
In Allison v. Acton-Etheridge Coal Co.. Inc., 289 Ala. 443,268 So.2d 725 (1972), the appellant argued in bulk its assignments directed to the court's error in overruling its motion for new trial. The assignments were based on allegations of improper argument, failure of the trial court to charge on the improper argument, and that the verdict was so contrary to the preponderance of the evidence as to indicate passion, bias, or prejudice. Appellant failed substantially to argue the preponderance issue and consideration thereof was thus precluded. Appellee's contention that no consideration could then be given the remaining assignments because joined with the preponderance issue was rejected, this court holding that the assignments all presented the same question, that was, did the trial court err in overruling appellant's motion for new trial, notwithstanding that the assignments varied somewhat in the manner in which each asserted the error.
The appellants presently in sections II, III, VI, and VII of their brief devote over half their total argument to what we view as but one argument as raised n the controverted assignments 1, 2, 3, 4, 5 D, 5 E, 7 and 8. That argument as we previously have characterized it in the opinion, is whether "the court erred in awarding a refund by way of a money judgment for the sums paid into the Trust Fund." Assignments 1, 2, and 3 assign generally the error in awarding the judgment; 5 D argues in substance the error of awarding the judgment of a refund of the monies paid in; 5 E argues the error of awarding the judgment of refund, asserting it was not based on the case as presented to the court; 7 also argues the error of the court in awarding the judgment of refund, asserting the general prayer could not authorize the relief inconsistent with the case as tried and 8 assigns, by the same argument as assignment 7, the error in awarding the judgment of refund.
These assignments all are kindred one to the others in asserting one common proposition: that the judgment was erroneous, in that it ordered the refund of the monies paid in. All the above noted assignments have been demonstrated insufficient as to form, or otherwise are not to be considered. But since all relate to each other and to good assignment 4, consideration of assignment 4 is not to be precluded. For only when assignments argued in bulk are not all related, will all fail if one is bad. Allison v. Acton-Etheridge Coal Co., Inc., supra.
Further, nothing regarding these assignments conflicts with an application of Thornton v. Tutt, 283 Ala. 72, 214 So.2d 425 (1968), or the test prescribed in Pruett v. State ex rel. Colbert County, 283 Ala. 33, 214 So.2d 310 (1968) for not only are the assignments here related in that they present the same overall question, but each may be answered by reference to the same legal principle.
Since assignment 4 has been shown properly to have been argued jointly with assignments 1, 2, 3, 5 D, 5 E, 7 and 8, in one section of the appellants' brief, it is of no moment that assignment 4 may have, in other sections of the brief, been argued with unrelated assignments.
The original opinion is thus extended, but the application for rehearing, having shown no substantial inconsistencies in the original deliverance, is denied.
Opinion extended, application for rehearing overruled.
All Justices concur, except HEFLIN, C. J., and BLOODWORTH, J., who concur in the result and JONES, J., who concurs specially. *Page 639