The opinion
MAIN, Justice (dissenting).
*67 I respectfully dissent from this Court's decision to dismiss the appeal. With regard to dismissals of actions, Rule 41(a)(2), Ala. R. Civ. P., provides the general rule: "[A]n action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Rule 41(a)(1) provides the following exception: "[A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment ...."
In my view, the City of Mobile's "motion to dismiss" was not a "notice of dismissal" in either form or substance. Indeed, as its title suggests, the motion requested affirmative relief from the trial court. It did not merely notify the court of the dismissal of the action. In its motion, the City requested:
"Plaintiff prays the Court will enter an order finding that the case has become moot and that Plaintiff's complaint be dismissed without prejudice. Plaintiff prays for such other, further and different relief to which it may be entitled, the premises considered."
On this basis, I would take the City at its word and treat the "motion to dismiss" as just that-a motion to dismiss filed under Rule 41(a)(2). Accordingly, I would address the appeal on its merits.
Murdock, J., concurs.