On June 7, 1971, there was presented to this court a motion by the appellant to allow it to amend its brief so that the appellant’s brief would comply with Rule 9 (b), Revised Rules of the Supreme Court of Alabama, 279 Ala. XXVI. This court voted to deny the appellant’s motion. The majority of the court felt that the motion came too late since the appellees had already filed their brief, as well as a motion to affirm judgment because of the failure of appellant to comply with Rule 9(b). I voted to grant this motion. I was motivated by a philosophy that cases should be determined on merits rather than on technicalities. In my opinion, the amending of the brief at that time (which was before submission) would not have produced an unjust hardship on the parties or this court.
Act No. 964, Acts of Alabama, 1971 Regular Session, approved September 7, 1971, conferred broad “rule-making power” on the Supreme Court of Alabama and directed it to adopt a new system of rules to govern procedure on appeals for the purposes of simplifying appeals and of promoting the speedy determination of litigation in the appellate courts on the merits of the cases. To assist in carrying out this function, this court appointed an advisory committee to recommend to the court a new system of rules concerning appellate practice. It is my hope that such advisory committee and the Supreme Court will carefully review Rule 9(b), as well as other existing rules, decisions, and statutes which prevent decisions on the merits.
However, until said Rule 9(b) is changed, I feel I must follow the decisions of this court which support the treatment given Rule 9(b) in this case. Therefore, I concur in thé opinion of Justice BLOOD-WORTH.
ON REHEARING
BLOODWORTH, Justice.Appellant has filed an application for rehearing. Appellant contends again that its original brief did comport with Rule 9(b), Revised Rules of the Supreme Court of Alabama, 279 Ala. XXI, XXVI, requiring a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue. We think we fully answered this contention in our original opinion. However, in view of earnest insistence of able counsel, we will add that we have re-examined our holding and we fail to see how the brief can be considered. *399to be in compliance with Rule 9(b), when it sets out some, but not all, of the witnesses’ evidence, in narrative form, bearing on the point as to the sufficiency of the evidence to support the trespass counts, and wholly fails to set out any such evidence as to the conspiracy count.
Then, appellant urges that we reconsider, and change, our ruling (made before submission) when we denied the appellant’s motion to amend its original brief in order to set out the testimony of each witness in narrative form. Appellant contends that when this court considers the sufficiency of the evidence to support the trespass counts, it will find the evidence to be insufficient, and the cause would be reversed
Appellant cites numerous cases for the proposition that “deficiencies and errors in Appellant’s Appeal” can be corrected up to the time of submission of the case. However, all of the cases appellant cites are instances where this court permitted supplemental transcripts to be filed prior to submission in order to correct omissions in the original transcript. None of these cases has any bearing on the question as to whether supplemental briefs may be filed prior to submission to correct omissions or errors in the original brief.
Moreover, there are two cases which are clearly in point on this issue. The first is the recent case of Kinsaul v. Florala Telephone Company, 285 Ala. 16, 228 So.2d 777 (1969), in which this court concluded as follows:
“The index to the record shows that seven witnesses testified, but there is no effort by appellants to comply with Rule 9(b). When there is no compliance with the rule, we apply the presumption that the record contains evidence to sustain every finding of fact. Evergreen Heading Co. v. Skipper, 276 Ala. 623, 165 So.2d 705; Nixon v. Richardson, 281 Ala. 632, 206 So.2d 877.
“Although appellants filed a reply brief in which an attempt was made to meet objections to their original brief raised by appellees, such brief cannot be looked to in order to determine whether the original brief complies with Supreme Court Rule 9. Piper Ice Cream Co. v. Midwest Dairy Products Corp., 279 Ala. 471, 187 So.2d 228.” [Our emphasis]
The other case is Piper Ice Cream Co. v. Midwest Dairy Products Corp., 279 Ala. 471, 187 So.2d 228 (1966). The pertinent portion of that decision is as follows, viz:
“Appellees, in their brief, insist that the decree should be affirmed on the ground that appellants’ brief fails to comply with Supreme Court Rule 9, in that it does not contain ‘a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely * * * ’ Supreme Court Rule 9. Appellees also insist, in effect, that appellants’ brief is also deficient in that it does not comply with subsection (d) of Supreme Court Rule 9, which requires that an appellant’s brief contain ‘argument with respect to errors assigned which counsel desire to insist upon.’
“In a reply brief counsel for appellants seek to meet the requirements of subsection (d), supra, by pointing out the assignments of error which each of their propositions of law was intended to cover. But the reply brief cannot be looked to in order to determine whether appellants’ original brief complies with Supreme Court Rule 9. See Lunney v. Southern Ry. Co., 272 Ala. 611, 133 So. 2d 247; Alabama Equipment Co. v. Ewin, 274 Ala. 308, 148 So.2d 209.” [Our emphasis]
While both of these cases dealt with deficiencies with regard to Rule 9, the deficiencies were sought to be corrected in a “reply” brief, rather than in a “supplemen*400tal” brief. But, we see no valid distinction between the two with respect to whether the motion to file the “supplemental” brief should be granted in this case.
To like effect is the recent case of Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1969). There, we held the filing of copies of the transcript on submission of the cause, under Rule 40, Revised Rules of the Supreme Court, 279 Ala. XXI, XL, could not supply a deficiency in the original brief in failing to set out a recitation of the testimony of each witness in narrative form as required by Rule 9.
Several observations this court made in the opinion in Allen v. Axford, supra, are pertinent here.
“Counsel for the appellee has performed his full duty when he files his brief replying to the points raised in appellant’s brief. If appellant’s brief is deficient in form, counsel for appellee is justified in relying on this deficiency in answering the contentions of the appellant.
■ “To accord to appellant’s contentions in the present case that by filing additional copies of the record at the time of the submission of this cause, he can thereby cure a defect in his brief which had been filed well in advance of submission, as was appellee’s answering brief, would in effect abrogate Rule 12.
“Such result would be highly undesirable. * * *”
A majority of the court in consultation is convinced that the cases, which we have cited, clearly show this court is committed to the rule that Rule 9(b) deficiencies in an original brief may not be corrected by way of reply or supplemental brief.
We might say that we did not intend, by our language in Albright Equipment Co. v. Waddell, 284 Ala. 329, 224 So.2d 878, to suggest any different rule from that reflected in our decisions just mentioned.
The reason that Rule 9(b) requires a condensed recital of the evidence in narrative form is self-evident in the case at bar, in which the transcript consisted of 956 pages, 13 witnesses testified, 161 exhibits were offered, and the issues are complicated and involved.
We are yet of the opinion and view that our original decision was correct.
Opinion extended; application for rehearing denied.
HEFLIN, C. J., and COLEMAN, MADDOX and McCALL, JJ., concur.