On Rehearing
HARWOOD, Justice.Appellee, City of Birmingham, makes three points on its application for rehearing, (1) that we erred because we prematurely held the election to be void; (2) that we erred in holding that the notice provisions of Act No. 633, approved September 6, 1961, applied; and (3) that we erroneously relied upon the decision in the Bouldin case as the basis for the decision in the Home-wood appeal.
The trial court denied relief to both Bouldin and the City of Homewood because of his opinion that there was no equity in Bouldin’s bill or Homewood’s cross-bill. Each of those sworn pleadings charged that the proper notice had not been given, and Homewood’s answer to Bouldin’s bill admitted that allegation.
The question of the proper notice was extensively argued in briefs on this appeal and Birmingham admitted in brief — “If the 1961 Act applied, the notice of the annexation election was insufficient; * * ” and its brief further conceded that the sixty day notice was not given and that a special election held without the prescribed statutory notice is void in the absence of other affirmative defenses.
The pleadings and the admissions of all the parties showed that the sixty day notice was not given. The election was therefore void so far as disclosed by the pleadings, and thus the bill contained equity. The trial court therefore erred in failing to issue the temporary injunction. It was only fitting and proper that we call to that court’s attention that the bill and cross-bill contained equity in this respect and why we thought it did. On the record before us, that is, as disclosed by the pleadings, the election was void and it was our duty to say so because that was the feature which gave equity to the bill and the cross-bill.
As to point (2), we can only say that there was an honest difference of opinion as to whether Act No. 633 applied to the special election. Evidently, the attorneys for Homewood and Birmingham were of the opinion at that time that the Act did not apply, and the trial court concurred in that opinion. It is our opinion that the Act did apply and our reasons are stated in the opinion.
*674As to point (3), an agreement appearing in the record in the City of Homewood appeal is to the effect that “ * * * it is hereby agreed and stipulated that the record on appeal in the aforesaid cause” (Bouldin v. City of Birmingham) “is hereby included in this record by reference as though set forth in full herein, and that the parties hereto and this Homorable Court may advert to and utilize the record on appeal in the aforesaid cause the same as though its contents were set forth in full herein.”
Further, it was agreed between the solicitors for all the parties, subject to approval by this court, that the City of Birmingham might combine in a single brief its reply to the separate briefs filed by the appellants Bouldin and City of Homewood. This agreement was approved by this court, and a single brief was filed by. the City of Birmingham.
Thus these two appeals were intertwined and plaited in such fashion by agreement of counsel. This unity compelled consideration of both records together and they have been so treated by all parties. We think the course followed was wise. If there be equity in Bouldin’s bill, it would be' anomalous to hold that the election was void and the City of Home-wood continued to exist so far as disclosed by' the pleading in that appeal, but that because of alleged insufficiency in Homewood’s bill, in its unamended state as presented to us, as argued by counsel for Birmingham, the lower court should be affirmed, and the denial of the temporary injunction approved, thus in effect in this branch of the appeal holding that Home-wood had no existence. Equity must mold its decrees to suit the obvious necessities of each situation, and possesses the power to do so.
We have merely held in our original opinion that Boüldin’s bill contained equity, and that the temporary injunction should have been granted. The decree was accordingly reversed and remanded to the lower court for orders consonant with our opinion. In the posture of these appeals it was essential that in a determination of whether there was equity in Bouldin’s bill, that we reach a conclusion as to whether Section 34(22) of Title 37 (pocket parts), supra, should be applicable to the special election in question.
We did not, in our opinion, pass upon the question of the constitutionality of Section 34(22), supra, nor upon any question of whether Bouldin, or Homewood might be estopped in pursuing their respective courses. These are matters to be determined first by the lower court in a hearing upon the matter.
' The City of Birmingham has filed a motion that this rehearing be considered by all of the justices of this court, in that, as Birmingham alleges, we passed upon the ultimate validity of the election without according the City of Birmingham an opportunity to assert its affirmative defenses. In so doing, the motion asserts, we overruled Alabama Law Enforcement Officers, Inc. v. City of Anniston et al., 272 Ala. 319, 131 So.2d 897; Mobile County v. Barnes-Creary Supply Co., 224 Ala. 168, 139 So. 270; Holcomb et al. v. Forsyth, 216 Ala. 486, 113 So. 516.
Other than holding that Section 34(22), supra, applicable to this election, a matter necessitated by manner of the presentation of these appeals, we passed upon no affirmative defenses that Birmingham may see fit to present in the lower court. The motion to have this application for rehearing considered by the full court is denied.
The application for rehearing is likewise due to be overruled.
Application overruled.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.