On the basis of the original opinion, first above, Mr. Justice Foster and I dissent, entertaining the view that there is no rational basis for the application of any other principle and that the rehearing opinion is manifestly fallacious. In addition to the reasoning of the first opinion, if anything else be needed to point out the fallacy of the majority view, we call attention to the following:
(1) Equity Rule 1 clearly makes Equity Rule 24 applicable and has been entirely overlooked or ignored in the majority opinion. This equity rule provides, inter alia, that "these rules [all equity rules, *Page 152 Rule 24 being one — we interpolate] govern the procedure * * * in the Supreme Court of Alabama". Hence this rule has been patently violated by resorting to some nebulous and unsound analogy to import a rule for the exigencies of the present case. "Hard cases make bad law."
(2) If Rule 24 and Rule 1 are to be thus ignored and an analogy sought after, then Equity Rule 118 would control, since it stipulates that if no equity rule may be found applicable to a given situation, then we are remitted to the practice in effect in the English court of chancery prior to the Judicature Act of 1873 for apposite analogy. The practice then was that allowance of more time to answer after demurrer was not a matter of right but of grace to be awarded on application to the court. Trim v. Baker, 1 Turner Russell 253; Cook v. Bamfield, 3 Swanston's Chancery Reports 606 (1673); Rowley v. Eccles, 1 Simons Stuart 511 (1823); 1 Smith's Chancery (Amer.Ed. 1893) 213; Lube's Equity Pleading (Amer.Ed. 1846) 48; 1 Daniell's Chancery Pleading Practice (6th Amer.Ed. 1884) 600.
(3) If all of the foregoing rules and applicable principles are to be ignored, then if any circuit court rule is to be extracted from its proper setting as a sustaining analogy, Equity Rule 28, subd. 1 (c) should be used as the proper one, which stipulates that after the defendant has plead to a bill of complaint and an amendment to the bill has been filed, the defendant shall be allowed twenty days (not thirty) after service of the amendment within which to plead.
(4) We have recognized the force and effect of Rule 24 as applicable to the given situation by, ourselves, stipulating in such cases the time within which a defendant may further plead and allowing sometimes twenty and sometimes thirty days. Larkins v. Howard, 252 Ala. 9, 39 So.2d 224, 79 A. L.R.2d 541; Birmingham Gas Co. v. City of Bessemer, 252 Ala. 380,41 So.2d 293; White v. Manassa, 252 Ala. 396, 41 So.2d 395; Woods v. Sanders, 247 Ala. 492, 25 So.2d 141. There are, of course, many other cases.
We, therefore, respectfully dissent.