On Rehearing
HARWOOD, Justice.On application for rehearing counsel for appellants assert we erred in pretermitting consideration of appellants’ argument under Subdivision A, which related to several assignments of error. The entire thrust of the argument under Subdivision A questioned the sufficiency of the evidence to support the court’s decree as a whole, or some aspect of it. We held that the appellants had waived these assignments by failing to comply with Supreme Court Rule 9, in that the appellants’ statement of the facts contained no recitation of the testimony of each witness in narrative form bearing on the points in issue so as to fully present the testimony of each witness clearly and concisely. In fact appellants’ recital of the facts was a bobtailed version seeking in two and a quarter pages to reflect the facts to be gathered from a record of some 900 pages as described in our original opinion.
The basis of counsel’s assertion of error on our part in pretermitting consideration of the insufficiency of the evidence to support the decree, is that this cause was submitted under Supreme Court Rule 40, *261and they were relieved from making the recitals of the testimony of each witness in narrative form as contemplated by Rule 9.
Supreme Court Rule 40 is as follows:
“Whenever counsel for either side, or jointly, shall, upon the submission of any cause to this court, furnish three or more copies of the record, which must be printed or on legible carbon, the justices who are to decide the case will each read the record independently or in consultation, and will discuss, consider, and when practical, decide the case before the preparation of an opinion. This rule will not, however, prevent a reconsideration or discussion of the cause in consultation after the preparation or decision upon the last consideration. This rule is not intended as making any change as to the record proper, to be certified to this court by the clerk or register, but is intended as a change in the method of deciding the case, whenever counsel shall supply copies of the record, which must be printed or in plain carbon, and may be on paper corresponding in size with ordinary brief. Whenever the copies are supplied as contemplated by this rule, it will operate to relieve counsel from making such statement of the fact as is contemplated by the present rule.”
The history of the proceedings on this appeal, we think, should remove the appellants from claiming the benefits they now seek under Rule 40.
The record in this case was filed on 11 July 1968, and on 9 August 1968, the appellants filed their briefs.- Oral argument was requested in appellants’ briefs.
On 12 September 1968, and within the extended time granted, the appellees filed their'briefs. In their briefs the appellees argued strenuously the insufficiency of appellants’ brief to present the question of the insufficiency of the evidence to support the decree because of a violation of the requirements of Supreme Court Rule 9, as to setting out the testimony of each witness in narrative form, etc.
The parties were notified that this case was set for oral argument on 25 November 1968, and on that day three additional copies of the record were filed in the clerk’s office by the appellants, and argument was heard. The original record was then endorsed “Argued and Submitted.”
When the appellees filed their briefs the posture of this appeal was set and fixed. Their briefs were in reply to the points and arguments raised by the appellants in their briefs.
As succinctly stated by the late and able Pelham, P. J., in Western Union Tel. Co. v. Emerson et al., 14 Ala.App. 247, 69 So. 335:
“It is the appellee’s right to confine the errors to be reviewed to those properly urged in the brief filed on the original submission; and as appellee stands upon her rights in this particular and insists upon the waiver of other errors assigned, we will consider and discuss as grounds of reversal only those errors not waived or abandoned.” (Citations omitted.)
On 25 November 1968, this cause was submitted on the briefs of the appellants as filed, on appellees’ briefs as filed, and on arguments of respective counsel. There was of course no indication in the briefs of appellants filed on 11 July 1968, that this cause was to be submitted under Rule 40, thus relieving the appellants from setting out the testimony of each witness in narrative form as a prerequisite to arguing the insufficiency of the evidence. Indeed, there could not have been such an indication since the additional copies of the record were not filed until 25 November 1968, which was some time after the appellees had filed their briefs in reply to appellants’ briefs.
The progenitor of Rule 40 was adopted as Rule 46 on 14 June 1914 (see 64 So. vii), *262and has been in effect without substantial change since that time.
However, in 1955, the Rules of this court were revised upon recommendations of a committee of the Alabama Bar Association working in conjunction with representatives from this court and the Court of Appeals. After consideration of the recommendations as above submitted, the Revised Rules were promulgated by this court effective 1 June 1955.
Prior to that time the Rules provided that in civil cases the appellant’s brief and argument would be filed upon submission of the cause, the appellee being given ten days after service of appellant’s brief upon appellee’s counsel in which to file a reply brief. 1923 Code of Alabama, Vol. 4, p. 882, Rule 13. This Rule 13 was carried forward in the Rules promulgated in 1955 as Rule 12, but in a greatly revised and altered form. These revised Rules, for the convenience of the profession, were published in 279 Ala. pps. XXI through XLIV.
Rule 12 provides that counsel for appellant shall file appellant’s brief within thirty days after the transcript of the record has been filed in this court, counsel for appellee being given twenty days after service of appellant’s brief upon him in which to ' file a brief for the appellee. Thereafter counsel for appellant may within ten days after service of appellee’s brief upon him, file a reply brief to appellee’s brief, limited to answering matters set up in appellee’s brief. Counsel for appellee may then, within ten days of service of appellant’s answering brief, file a reply brief, limited to matters set up in the answering brief of appellant. Thereafter no additional briefs may be filed except with consent of this court or a justice thereof.
Rule 4 of the Revised Rules of 1955, provides that either party may request oral argument by endorsing such request on the last page of the brief. It must be assumed that this means that such endorsement shall appear in the original brief of each party. If no such request is made by either party, the clerk of this court when briefs from all parties have been filed, will immediately submit the case in term time upon the transcript and such briefs.
Rule 4 was devised to make for a more expeditious submission of cases where no oral argument is requested, and to permit a submission of the case immediately upon the filing of the briefs rather than have the submission delayed until the call of the appropriate division. Of course, if argument is demanded by either party, the cause is submitted on argument and briefs already filed at the next call of the division from which the case originates. The request for oral argument merely delays the date of the submission of the case, it cannot be deemed to operate so as to destroy the posture of the case as fixed by the briefs already filed.
It is true that Rule 40 provides that:
“Whenever counsel for either side, or jointly, shall, upon the submission of any cause to this court, furnish three or more copies of the record, * * * it will operate to relieve counsel from making such statement of the fact as is contemplated by the present rule.”
At the time Rule 40 was promulgated in 1914, and until 1 June 1955, the appellant filed his brief upon submission of the cause. The appellee would not therefore be prejudiced by filing additional copies of the record under Rule 40 at the time of submission since presumably appellee’s counsel would not be served with a copy of appellant’s brief until the submission of the case and would not have filed his brief.
Rule 12 of the Rules as revised in 1955, changes this picture completely. The briefs are all filed well in advance of submission. The counsel for appellee have spent their time and labor in answering appellant’s *263brief as framed by the points and arguments presented in appellant’s brief.
The changes wronght by Rule 12 are also most beneficial to the members of this court in that by reading the briefs they can determine in advance of argument the points to be presented.
There is a palpable conflict between Rule 40 and Rule 12, and to some extent between Rule 40 and Rule 2, if Rule 40 be interpreted today as permitting the filing of additional copies of the record on the day of submission of the cause and thereby relieve counsel for the appellant of the requirement that he set out in narrative form the testimony of each witness if he intends to question the sufficiency of the evidence to support the judgment or decree.
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. While Rule 40 and Rule 12 both appear in the Revised Rules promulgated in 1955, it is apparent that Rule 40 should have been modified so as to make its operation compatible with Rule 12, and to some extent with Rule 2. However, such indicated revision of Rule 40 was apparently overlooked.
We see no reason why Rule 40 can not yet have some field of operation, but conclude, and so hold, that if counsel desire to file additional copies of a record in order to come within the influence of Rule 40, then such additional copies should be filed preferably at the time the main record is filed, and certainly not later than at the time in which the respective original briefs must be filed. Any attempt to file additional copies of a record after this time could entirely alter the schedule of processing a Case in' this court, cause unnecessary delay, and work undue hardship on opposing counsel.
In the present case counsel for appellant must be considered as estopped from deriving any benefit from their tardy attempt to change the posture of the proceedings on this appeal.
Counsel in brief on rehearing further contends that we erred “in holding that Ordinance No. 398-G is invalid as being unconstitutional in that the Ordinance impairs the obligation of a written contract creating a covenant running with the land.” From this premise, counsel expresses the view, if we interpret the argument correctly, that an intolerable burden would be placed upon a zoning authority in researching the title to every lot in a tract covered by a zoning ordinance if the ordinance could be declared void in toto as unconstitutional because of a covenant restricting the use of one or more of the lots in the zoned tract. We agree that to place such a burden on the zoning authority would be unwise because it is impractical and unnecessary.
In his decree the Chancellor decreed, (1) that Ordinance 398-G was invalid on his finding that the ordinance was arbitrary and unreasonable in view of all the facts, and (2) that the restrictive covenant in the McGeever deed was a covenant running with Lot 1.
We declined to review the conclusions of the Chancellor that the ordinance was invalid because arbitrary since such conclusions were based on the sufficiency of the facts presented to the Chancellor to support his decree and the facts were not set forth in appellants’ brief in adequate or proper form as required by Rule 9.
*264As to the Chancellor’s conclusions that Lot 1 was yet within the protective coverage. of the restriction in the McGeever deed, and that such restriction was a covenant .running with Lot 1, and our approval of apd affirmance of the Chancellor’s views in this aspect of the decree, counsel for appellants seem now to be in accord with such views and conclusions.
We have re-read our opinion and find nothing therein substantiating counsel’s perturbation that it might be construed as holding that a zoning ordinance is unconstitutional if included in the zoned tract are lots containing restrictive covenants as to the use of such lots which are more limited than that permitted by the zoning ordinance. We expressed the view that a zoning ordinance could not constitutionally invalidate a covenant running with the land, since such covenant constitutes a contract between the parties which could not be impaired by an ordinance or a statute. We did not intend that, nor should, it be concluded from this observation that a zoning ordinance is unconstitutional because some lot in the zoned tract might be under a covenant running with such lot restricting its use. Such a situation might well affect the enforcibility of the ordinance as to the lot or lots so restricted in an action between the parties concerned, but would not go to the constitutionality of the ordinance as a whole.
We think that counsel for appellants in construing our opinion have conjured up spooks where no such spooks really exist.
However, we have extended our original opinion out of deference to earnest counsel for appellants and hope that such extension will serve as a tranquilizer to allay the nervousness exhibited by counsel as to the proper interpretations to be accorded such views and conclusions.
Opinion extended; application overruled.
LIVINGSTON, C. J., and LAWSON, MERRILL, and MADDOX, JJ., concur.