author: SUGG, Justice,

text:
    Francis M. WILSON v. JONES COUNTY BOARD OF SUPERVISORS.
    No. 49484.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Rehearing Denied March 23, 1977.

      Andalman, Bergmark, Adelman & Steiner, Alison Steiner, Hattiesburg, for appellant.
    Leonard B. Caves, Laurel, for appellee.
    J. Marshall Lusk, Jr., Jackson, on brief for Mississippi Assn, of Supervisors, amicus curiae.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court.

The Jones County Board of Supervisors levied an additional two mill ad valorem tax for general county purposes on September 9, 1975 authorized by Mississippi Code Annotated section 27-39-304 (Supp.1976). Appellant appealed the board’s action to the Circuit Court of the First Judicial District of Jones County, contending that the statute authorizing the additional two mill levy is unconstitutional. The circuit court dismissed the appeal and appellant appealed to this Court.

The primary question on this appeal is whether the provisions of 27-39-304 authorizing the Board of Supervisors of Jones County to levy an additional two mill ad valorem tax for general county purposes, in addition to the levy for general county purposes authorized by Mississippi Code Annotated section 27-39-303 (Supp.1976) violates Section 112 of the Mississippi Constitution of 1890.

Appellant attacks the portion of section 27-39-304 which reads as follows:

[F]urther, that the board of supervisors of any county having a population in excess of fifty-nine thousand five hundred forty (59,540) in the 1960 federal decennial census and being traversed by U.S. Highway 11 which intersects U.S. Highway 84 may, in its discretion, levy an additional two (2) mills or any portion thereof, which additional levy would be for one year, .

Appellant correctly asserts in his argument that the quoted portion of the statute can apply only to Jones County. He argues that the fact that two named highways intersect in a county having a population in excess of 59,540 in the 1960 census does not bear a rational relationship to that county’s needs in terms of ad valorem tax rates for general county purposes. He further argues that the quoted language of section 27-39-304 neither distinguishes Jones County from any other county falling within the same classification as defined in section 27-39-303 in terms of ad valorem tax needs for general county purposes, nor bears a rational relationship to the purpose of section 27-39-304, and therefore violates Section 112 of the Mississippi Constitution of 1890.

Section 112 requires uniform and equal taxation throughout the state. The legislature has provided that property is to be assessed for ad valorem tax purposes in the counties of the state by the tax assessor in each county and that the assessments are to be equalized by the board of supervisors of the respective counties. In addition to providing for a uniform manner of assessing property for ad valorem taxation and equalizing assessments, the legislature, in Mississippi Code Annotated section 19-3-41 (1972) gave to the boards of supervisors the duty of levying the taxes necessary to meet the requirements of their respective counties, not exceeding the limitation prescribed by law. Section 19-3-41, in varying language, has been a part of the statutory law of this state since 1848 and was enacted under the authority of Section 170 of the Constitution of 1890 and its forerunners. Section 170 provides that boards of supervisors may be required to perform the duties which may be required by law.

In Y. & M. V. R. Co. v. Claiborne County, 191 Miss. 277, 2 So.2d 548 (1941) we noted that, before 1932, the legislature at each session imposed a limitation on the amount of tax which a county could levy. This method of limiting the millage rate which a board of supervisors could levy was changed by Chapter 104, Laws of 1932 [now Mississippi Code Annotated section 27-39-301 (1972)]. It provides that a governing authority, having the power to levy ad valo-rem taxes, may not make a levy in excess of the limitation provided by the chapter after the expiration of the fiscal year ending September 30,1932. The statutory plan for assessment of property for ad valorem tax purposes and for limiting the amount of the tax levy, or millage rate, is a comprehensive plan insuring uniform and equal ad valorem taxation throughout the state.

Mississippi Code Annotated section 27-39-303 (Supp.1976) is the authority for boards of supervisors to levy taxes in their respective counties for general county purposes. This section authorizes a tax levy based on assessed valuation of property located in the county. The rate varies from twelve mills in counties having an assessed valuation of less than $3,000,000 to six mills in counties having an assessed valuation of $20,000,000 or more. A limitation was placed on the millage rate that could be levied by boards of supervisors by classifying the counties according to assessed valuation. We are of the opinion that the classification contained in section 303 bears a rational relationship to the purpose of securing uniformity and equality in ad valo-rem taxation.

The first question is whether the designation of Jones County for different treatment from other counties by reference to highways and the 1960 census bears a rational relationship to the purpose of section 27-39-304. The general rule is that when a taxation statute makes a classification which causes it to operate on only a limited number of persons or in a single geographical area, the classification must be based on some reasonable ground and some real difference which bears a just and proper relation to the object sought to be accomplished. Walker v. Board of Supervisors of Monroe County, 224 Miss. 801, 81 So.2d 225 (1955). In Culley v. Pearl River Industrial Commission, 234 Miss. 788, 108 So.2d 390 (1959), we held that the equal and uniform requirement relates to the levy of taxes and held further that since the classification of the Pearl River District was valid and proper, the contingent levy authorized did not fall within the prohibition set forth in Walker, supra.

The purpose of section 27-39-304 is to permit additional taxes for general county purposes when the tax levy authorized by section 27-39-303 is insufficient to produce enough revenue to pay the general operating expenses of a county. Section 304 authorizes any county having an assessed valuation of less than $8,000,000 to levy no more than two additional mills and any county having an assessed valuation of more than $8,000,000 to levy no more than one additional mill for general county purposes.

The last paragraph of the section prescribes the manner in which the additional millage rate may be imposed. It requires the board of supervisors to publish notice of its intention to levy the additional rate, and if the required number of qualified electors file a written protest against the making of the additional levy, then an election on the question of making the levy may be called and held. If no protest is filed, then the additional levy may be made without an election. However, after a protest is filed the board of supervisors may, in its discretion, decide not to call an election on the question of the additional levy in which event it may not make the additional levy.

The exception to the general classification quoted in paragraph three of this opinion is an attempt to single out Jones County for different treatment from other counties falling within the same classification based on assessed valuation. The designation of Jones County by referring to highways and the 1960 census does not bear a rational relationship to the purpose of section 27-39-304. We therefore hold that the quoted portion of section 27-39-304 violates Section 112 of the Mississippi Constitution. There are eleven other exceptions in the section subject to the same constitutional infirmity.

The next question is whether the invalid part of the statute is separable from the valid part, and after the invalid part is stricken out, will a complete and consistent plan for an additional levy remain?

It is the Court’s duty in passing on the constitutionality of a statute to separate the valid from the invalid part, if this can be done, and to permit the valid part to stand unless the different parts of the statute are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all cannot be carried into effect it would not have enacted the residue independently. Howell v. State, 300 So.2d 774, 781 (Miss.1974); American Express Co. v. Beer, 107 Miss. 528, 536, 65 So. 575 (1914); Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910); Campbell v. Miss. Union Bank, 7 Miss. 625 (1842).

In Adams v. Standard Oil Co., we held that an exception to confederate soldiers from an act imposing a privilege tax was unconstitutional, but the unconstitutional exemption could be stricken out leaving a complete and consistent privilege tax which the legislature would have passed. The rule was stated as follows:

It is contended, however, for the appellant, that if these void exemptions are stricken from the privilege tax statutes there is left a complete and consistent scheme of raising revenue through privilege taxes; that the void provisions are separable from the others; and the Legislature would have passed the latter, even though it had known the former would be void. In treating this question,, Judge Cooley, in his work on Constitutional Limitations (7th ed.) pp. 246, 247, 248, says: ‘Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other.’ To the same effect are Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; Allen v. Louisiana, 103 U.S. 80, 26 L.Ed. 318; Ballard v. Oil Co., 81 Miss. 507, 34 So. 533, 62 L.R.A. 407, 95 Am.St.Rep. 476. In Field v. Clark, supra, the Supreme Court of the United States, answering the contention that the whole tariff act of 1890 was void, because of the unconstitutionality of the provision giving a bounty to sugar producers, said: ‘Unless it is impossible to avoid it, a general revenue statute should never be declared inoperative in all its parts because a particular part relating to a distinct subject may be invalid. A different rule might be disastrous to the financial operations of the government, and produce the utmost confusion in the business of the entire country.’ (Emphasis supplied). (97 Miss, at 907, 908; 53 So. at 696).

Section 27-39-304 was first enacted as Chapter 263, Laws of 1962 with amendments in 1964, 1966, 1968 and 1973 engraft-ing twelve exceptions to the statewide operation of the statute permitting certain counties to deviate from the general operation of the statute.

The statute as originally enacted did not contain the twelve exceptions now in it. We are therefore led to the inescapable conclusion that the legislature would have enacted the valid part of the statute independently of the invalid part because this is precisely what it did. The invalid part of the statute may be separated from the valid part and stricken out leaving a complete and consistent plan whereby counties may levy additional taxes for general county purposes. We therefore hold that the part of section 27-39-304 authorizing counties to levy additional taxes for general county purposes, and the part in the last paragraph prescribing the procedure to be followed in making the levy, are constitutional.

The final question is whether the entire two mill levy should be declared invalid. This precise question has not been presented to the Court, but we have decided cases involving partial invalidity of tax assessments and tax levies.

In Tatum v. Smith, 158 Miss. 511, 130 So. 683 (1930) we held that an invalid order increasing an assessment did not render a tax sale void. In Tatum the appellee filed an original bill against appellant alleging that she was owner of a lot and that appellant was claiming title under a void tax sale. She prayed for cancellation of appellant’s tax deed as a cloud on her title. A legal assessment roll was prepared, but the State Tax Commission directed the board of supervisors to raise the assessments of certain classes of property, including real estate in cities, towns and villages. The order of the Tax Commission was complied with but the board of supervisors did not give the required notice to taxpayers of its intention to increase assessments. The property was sold based on the increased assessment but we held that the owner of the land could not invalidate the sale unless she could show she tendered the portion of tax that was validly assessed. The Court considered the question of whether the entire assessment roll was void or only the increase in assessments made by the board of supervisors, and stated:

The question is one of great public importance, and all persons, including taxpayers, who are not seeking to escape the payment of taxes, will probably agree that unless the statute clearly so requires, an assessment roll will not be stricken down in its entirety, and the public be thereby deprived of all taxes thereon, merely because of an invalid order attempting to raise assessments thereon that were theretofore legally made. (158 Miss, at 514, 130 So. at 683).
The opinion concluded:
It follows, therefore, that if the order increasing the taxes on the appellee’s land was void, she was chargeable with, and should have paid, taxes thereon according to the original assessment therefor. And since she did not tender to the tax collector the taxes so due, the sale made by him therefor is valid. (158 Miss, at 515, 516; 130 So. at 684).

Tatum is authority for the principle that although a part of a tax is not due because of an illegal increase in the assessment; nevertheless, the landowner should pay or tender the taxes legally assessed.

In Burke v. Leggett, 118 Miss. 660, 79 So. 843 (1918) this Court affirmed an injunction prohibiting collection of a two and three-fourths mill levy which was void because the order making the levy failed to designate the objects for which the levy was made as required by law. The board of supervisors had levied ten mills for general county purposes but subsequently amended the levy to show seven and one-fourth mills for the general county purposes and two and three-fourths mills for a “courthouse special” fund. The seven and one-fourth mill levy for general county purposes was upheld. Although not stated specifically in the opinion, it is implicit in the holding that one must pay the portion of any tax which is validly levied.

In Chickasaw County v. Gulf, M. & O. R. Co., 195 Miss. 754, 15 So.2d 348 (1943) we held that part of the tax levy made by the Board of Supervisors of Chickasaw County was for an improper purpose, but required a refund of only the part of the tax levied for the improper purpose, thus leaving in effect the taxes validly levied.

From the foregoing cases, we are led to the conclusion that, where a tax levy or assessment is partially invalid, the tax levy or assessment will not be stricken in its entirety and deprive the public of all taxes, but taxpayers will be required to tender and pay the valid portion of the tax.

The Jones County Supervisors levied a two mill tax for general county purposes under a part of section 27-39-304 which we hold unconstitutional in this opinion; however, the board was authorized to levy one mill additional tax for general county purposes under the valid part of section 27-39-304 authorizing counties with an assessed valuation of more than $8,000,000 to levy an additional one mill tax for general county purposes.

The Jones County Supervisors followed the procedure required for levying the additional one mill tax; therefore, we hold that one mill of the additional two mills levied for general county purposes is valid.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

      . As amended by Chapter 462, Laws of 1973.


source: Caselaw Access Project

license: Public Domain

text:
    Marzine PRICE v. STATE of Mississippi.
    No. 49524.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Rehearing Denied March 23, 1977.
    Laurel G. Weir, Alford, Mars & Thomas, Herman Alford, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Roy Noble Lee, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.

PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG and BROOM, JJ., concurring.

LEE, J., took no part.


author: WALKER, Justice,

text:
    Richard Gilbert HOPTON v. Mrs. Ella Mae HOPTON.
    Nos. 49099, 49636.
    Supreme Court of Mississippi.
    Feb. 16, 1977.

      John R. Countiss, III, W. E. Gore, Jr., Jackson, for appellant.
    Tighe & Tighe, B. Stirling Tighe, Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a decree of divorce rendered in the Chancery Court of Hinds County, Mississippi, in June of 1975. Appellant does not contest the granting of the divorce, but contends that the award of $500 per month alimony and $200 per month child support is excessive. The decree also provides that the husband should maintain an insurance policy on his life payable to the minor child of the parties, and that he should pay all medical expenses on behalf of the child.

Richard and Ella Mae Hopton were married on July 28, 1968, two months after her divorce from Bobby Belcher. The marriage was the third for Mrs. Hopton and the second for Mr. Hopton. Mr. Hopton has four children from his earlier marriage, one of whom is married. Mrs. Hopton has a daughter, named Brenda Belcher, from her previous marriage. Mr. and Mrs. Hopton have a daughter, Ella Marie, who was three years old at the time of the divorce.

Mr. Hopton is a plastering contractor. His taxable income, as shown by his tax returns, was $10,059.09 in 1970, $10,024.43 in 1971, $10,926.80 in 1972, and $18,324.96 in 1973. Mr. Hopton did not produce his tax records for the year 1974. (He had received an extension of time from the Internal Revenue Service.) However, during that year, he had the plastering contracts for the Baptist Hospital and the Deposit Guaranty Plaza. He testified that the base bid for the hospital was about $110,000, and the base bid for Deposit Guaranty Plaza was about $85,000. He testified that his profits usually ran between 5 and 7 percent of the base bid.

The value of Hopton’s assets is unclear from the record. He and his wife jointly owned approximately $15,000 worth of stock in affiliated funds. The parties agreed, and the decree provided, that he pay $4,000 to Mrs. Hopton and thereby obtain sole ownership of this stock. He also owns 100 shares of stock in Federal Compress, although the record does not reflect its value. Hopton admitted owning some land in Florida, although its value is not clear. He also owns lots on Beatty Street and Gallilee Street in Jackson, on which warehouses are situated. He estimated that the lots would be worth about $16,000, of which $7,000 was still owed. Hopton also owns an automobile, as well as certain trucks and other equipment used in his business.

Mr. Hopton estimates that living expenses for himself and the three children of his first marriage run $658 per month. He must also pay $50 a month alimony to his first wife.

At the time of the divorce, Mrs. Hopton was working as a real estate salesman for Bailey and Bailey. Prior to that she worked for J. E. Carter. She earned $795 in 1973, and $4,897.69 in 1974. For the first six months of 1975 (the hearing was in June), she had earned $2,982.12. Mrs. Hop-ton estimated that her monthly business expenses would run about $65.

Mrs. Hopton and her daughter, Ella Marie, occupy a house on Woodlark Drive, which was occupied by the Hoptons during their marriage. The house originally had four bedrooms and two and one-half baths, although Mr. Hopton added on to it after the marriage. The house also has a swimming pool. Mrs. Hopton was given this house by her former husband, Bobby Belch-er. Title to the house is in the name of Brenda Belcher. Although Mrs. Hopton claimed to have delivered the deed to the property to Brenda on July 22, 1968, the deed was not filed for record until September 5, 1973, when Mrs. Hopton wished to evict her husband from the house. The house was not fully paid for when the Belchers divorced, and Mr. Hopton made the payments on the house during the time of their marriage. She testified that at the time of her divorce from Hopton, the house was worth about $65,000, but $25,000 remained due on the mortgage. Mrs. Hopton also owned a house on Dixie Drive, which was given to her by her father. She testified that the property was worth about $15,000, and that the property was currently securing a note in the amount of $4,000. The house had been in Mrs. Hopton’s name, but she deeded it to Brenda in anticipation of this divorce.

The record contains an extensive breakdown of Mrs. Hopton’s claimed expenses. She claimed expenses in connection with the house on Woodlark Drive, including the payment on the mortgage, taxes, insurance, utilities and the like, in the aggregate of over $500 a month. She also claims large monthly amounts for clothes, shoes, beauty parlor, and $200 per month for a part-time maid and baby-sitter. Her total claimed expenses amount to $1,817.82 per month. (See Appendix A for a detailed breakdown of Mrs. Hopton’s claimed expenses.)

The chancellor’s award of alimony cannot be reversed unless it is manifestly wrong or against the overwhelming weight of the evidence. Bunkley & Morse, Amis on Divorce and Separation in Mississippi section 6.08 at 189 (1957). In this case, the chancellor has required a man whose taxable income, in the years covered by the record, averaged about $12,000 a year to pay $8,400 a year for the support of his wife and child. It is not impossible for Mr. Hopton to make these payments, but we find it to be manifestly unjust. The chancellor must consider not only the reasonable needs of the wife but also the right of the husband “to lead as normal a life as reasonably possible with a decent standard of living.” Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971). While Mr. Hopton might still be able to maintain a decent standard of living under this decree, it is clear to us that the needs of the wife have been overstated. A wife may not strip herself of her assets in order to obtain excessive support from her husband. Furthermore, we take note of the fact that Mrs. Hopton is, in fact, working and is capable of making a significant contribution to her own support. She has demonstrated an earning capacity of between $5,000 and $6,000 per year. Moreover, it is the duty of the mother as well as the father to contribute to the support and maintenance of their child when she has a separate income or estate. Miss. Code Anno. § 93-5-23 (1972).

For these reasons, we modify the decree so as to reduce the alimony payments to $300 per month and the child support to $150 per month. We make no allowance for her attorney’s fees on this appeal from the divorce decree.

Mr. Hopton also appeals from a later decree of the chancery court adjudging him in contempt for failure to make the alimony payments provided in the divorce decree. Mr. Hopton admits that he has not made these payments, but contends that he was unable to do so. In such a case, the husband faces a very heavy burden of proving that he was absolutely unable to make the payments required by the court. Kincaid v. Kincaid, 213 Miss. 451, 456-57, 57 So.2d 263, 265 (1952). It is sufficient to note here that Mr. Hopton has not made such a showing. Therefore, the adjudication of contempt must be sustained. Furthermore, we allow Mrs. Hopton an additional $150 for attorney’s fees incurred in connection with the appeal of the contempt citation. However, the amount adjudged to be due from Mr. Hopton must be reduced in accordance with the divorce decree as modified by this Court. Therefore, Mr. Hopton will have ninety days from the date this judgment becomes final to make all payments required by the decree as modified in this opinion and thereby purge himself of contempt.

NO. 49,099 AFFIRMED AS MODIFIED; NO. 49,636 AFFIRMED AS MODIFIED.

GILLESPIE, C. J, PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.

APPENDIX A

PER YEAR PER MONTH

House Payment (Rent)- $175.00

City Adv. Co. Taxes $1,200.00- 100.00

House Insurance 332.00- 27.67

Electricity-.- 75.00

Gas--- — - 30.00

Water & Sewerage- 50.00

Yard Maintenance- 40.00

Laundry & Dry Cleaning- 30.00

Groceries, milk, sundries 250.00

Telephone- 12.60

Pest Control- 8.47

Car Expenses, gas, oil, greasing, minor repairs 100.00

Medicine & Drugs - 30.00

Honey's School Tuition $1,184.00- 98.66

Baby Sitter & Part time maid- 200.00

Honey's incidental expenses, entertainment, etc. 25.00

Honey's clothing & School uniforms - 50,00

$1302.40

Estimated approximate expenses of Mrs. Hopton not included in above.

Clothes - $150.00

Accessories- 50.00

Shoes- 40.00

Beauty Parlor - 40.00

Cosmetics - 15.00

Drugs- 25.00

Medical Ins. - 50.00

Entertainment of clients - 25.00

Lunch- 40.00

Realtors Dues-$125.00- 10.42

Paper- 20.00

Dr. Bills (estimated)- 40.00

Multiple Listing Service dues - 10.00 $515!42


text:
    George MERRITT v. TRI-STATE MILL SUPPLY COMPANY, INC., et al.
    No. 49156.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Rehearing Denied March 23, 1977.
    Bruce Caldwell, R. L. Willett, Laurel, for appellant.
    Pickering & McKenzie, Franklin C. McKenzie, Jr., Laurel, for appellees.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Plaintiff, George Merritt, filed an ejectment action against defendants, Mike Creel, and Tri-State Mill Supply Company, Inc., in the Circuit Court of the Second Judicial District of Jones County. Following a judgment in favor of the defendants, Merritt appealed.

The circuit court held that the 1970 tax roll for the Second Judicial District of Jones County was invalid, and the tax deed issued to Merritt did not convey title to him because the tax sale and deed were based on a void assessment.

The property involved in this lawsuit is located within the Second Judicial District of Jones County with a warehouse building on it. R. S. Edwards owned the property until his death in 1970. Following his death, it was conveyed by Edwards’ Executor to Creel in February, 1971 by warranty deed. Creel leased the property to TriState Mill Supply Company, Inc.

In September, 1971, Merritt purchased the property from Jones County at a tax sale for unpaid ad valorem taxes for the year 1970. Merritt’s tax title subsequently matured and a tax deed was issued in October, 1973.

In 1972 Mrs. Creel, the wife of defendant, Mike Creel, paid the taxes due on the property to the City of Laurel for the year 1971 and was advised that the property sold for 1970 city taxes. She redeemed the property from the 1970 sale by the city. She went to the courthouse and explained to the employees in the tax collector’s office that she wanted to pay all of the state and county taxes on the subject property and exhibited her husband’s deed to the property. She paid the 1971 state and county taxes but was not advised that the land had sold for 1970 taxes. Creel paid all taxes due the state, county and city up to the time of the trial of this cause except the 1970 tax due the state and Jones County.

The chancery clerk issued a notice to R. S. Edwards, the former owner, that the land had been sold for taxes and title would become absolute unless redeemed within the time required by law. The notice was served in August, 1973 by posting a copy on the door of Edwards’ former residence. Mississippi Code Annotated sections '27-43-1 and 27-43-3 (1972). [Amended by Miss. Gen. Laws ch. 517 (1975)].

After Merritt obtained his tax deed to the property, he contacted Creel to inform him that he had acquired title to the subject property and to discuss the possibility of selling the property back to Creel. The negotiations between the parties proved fruitless, and Merritt served notice on Creel and Tri-State Mill Supply Company to vacate the property, and subsequently filed his action for ejectment.

Miss. Gen. Laws eh. 169 (1906) provides for the division of Jones County into two separate judicial districts; Ellisville being the seat of the first district and Laurel the seat of the second district. Section 12 of Chapter 169 also provides:

It shall be the duty of the Assessor of Jones County to file with the Chancery Clerk of said county two copies each of the land and personal assessment rolls of said county, filing one of each with said Clerk at his office at Ellisville, and one of each at his office at Laurel; and said Board of Supervisors, in passing on said assessment roll, shall, at the proper meeting held by them at Laurel, approve such of said roll as shall relate to and embrace property included and being in the Second District, and at the proper meeting held in Ellisville shall approve such of said roll as shall relate to and embrace property included in the First District, in all instances acting upon said rolls, so far as the territory embraced in each of the respective districts is concerned, in the same manner as though the action or approval of the assessment rolls related to the approval thereof of different counties; and the Assessor and Clerk shall provide suitable copies of said entire rolls, as finally approved, in all instances where required by law, as though said rolls related to different counties; provided, that only one copy of each shall be required to be filed with the Auditor of Public Accounts when the rolls shall have been approved and so far as the same shall relate to each of said districts.

According to the July minutes of the Jones County Board of Supervisors the board convened in Ellisville on July 16, 1970, and approved the ad valorem tax assessment rolls of property situated in both the first and second judicial districts of Jones County, for the year 1970. The Jones County Board of Supervisors at its July meeting failed to enter any order equalizing or approving the tax rolls for property situated within the Second Judicial District of Jones County, while sitting within the second judicial district. This is contrary to the express provisions of Miss. Gen. Laws ch. 169, § 12 (1906). Any action taken by the Jones County Board of Supervisors on property situated within the second judicial district, while in session within the first judicial district, was void and of no effect.

Merritt contends that any defects in the board’s action was cured by Mississippi Code Annotated section 27-35-105 (1972):

Assessments must be approved by an order of the board of supervisors entered on the minutes; but the failure to make and enter such order shall not vitiate the assessment if it shall appear that the assessment was made according to law.

It could not be seriously argued that an order approving the roll entered by the board while sitting in another county would be valid. The 1906 statute dividing Jones County into two judicial districts has the effect of creating two counties for taxing purposes. We therefore hold that the curative statute has no application to the facts of this case because there was a total departure by the supervisors from the 1906 statute.

Because we have determined that the assessment roll was void, it is not necessary for us to notice whether there was an attempt to redeem the property or whether the notice and service of notice was sufficient under Mississippi Code Annotated sections 27-43-1 and 27-43-3 (1972).

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


text:
    Johnnie Mae Stovall CRAIG v. Jake Edward LAMBERT et al.
    No. 49184.
    Supreme Court of Mississippi.
    March 2, 1977.
    Dale & Hathorn, William E. Hathorn, Prentiss, for appellant.
    James S. George, Monticello, James M. Abram, Jackson, for appellees.
   Appeal from Chancery Court, Lawrence County; J. W. Walker, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    John D. PEET, Jr., et al. v. James A. PEET et al.
    No. 49357.
    Supreme Court of Mississippi.
    March 2, 1977.
    W. E. Gore, Jr., Jackson, for appellants.
    Wise, Carter, Child, Steen & Caraway, William 0. Carter, Jr., Jackson, for appel-lees.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Walter Clarence PHILLIPS v. STATE of Mississippi.
    No. 49752.
    Supreme Court of Mississippi.
    March 2, 1977.
    Joe M. Buchanan, Indianola, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; B. B. Wilkes, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    James Roland COVINGTON v. Bess Alene B. COVINGTON.
    No. 49421.
    Supreme Court of Mississippi.
    March 2, 1977.
    Warner, Ray & Cobb, George D. Warner, Jr., Meridian, for appellant.
    Singley, Minniece, Hamilton, Neville & Hamill, James T. Singley, Meridian, for ap-pellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    In the Interest of Damon Christopher RENALDO.
    No. 49653.
    Supreme Court of Mississippi.
    March 2, 1977.
    Paul D. Snow, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Municipality of Pearl, Rankin County; Thomas L. Zer-bert, Presiding Judge.

Before INZER, P. J., and SMITH and WALKER, JJ., and FRED P. WRIGHT, Commissioner.

AFFIRMED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    Glenn Edward BEALL v. Sandra Faye BEALL.
    No. 49214.
    Supreme Court of Mississippi.
    March 2, 1977.
    Downey & Jennings, John H. Downey, Jackson, for appellant.
    Harry L. Kelley, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Rufus FAIRLEY v. STATE of Mississippi.
    No. 49453.
    Supreme Court of Mississippi.
    March 2, 1977.
    W. S. Murphy, Lueedale, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

Before SMITH, ROBERTSON and WALKER, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ, and SUGG, BROOM and LEE, JJ, concur.


text:
    Willie N. REDDIX v. STATE of Mississippi.
    No. 49454.
    Supreme Court of Mississippi.
    March 2, 1977.
    Joe Ben Hawkins, W. Eugene Henry, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

REVERSED AND REMANDED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    Larry Darnell JOBE and Bruce Wayne Moore v. STATE of Mississippi.
    No. 49526.
    Supreme Court of Mississippi.
    March 2, 1977.
    George M. Simmerman, Pascagoula, for appellants.
    A. F. Summer, Atty. Gen. by John C. Ellis, Special Asst. Atty. Gen. and Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


author: SMITH, Justice,

text:
    George Kendall GALLOWAY v. STATE of Mississippi.
    No. 49460.
    Supreme Court of Mississippi.
    March 2, 1977.

      W. S. Murphy, Lucedale, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen. and John C. Ellis, Special Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, ROBERTSON and WALKER, JJ.
   SMITH, Justice,

for the Court.

Indicted for murder in the Circuit Court of George County, George Kendall Galloway was convicted of manslaughter and sentenced to a term of sixteen years in the State Penitentiary.

Defendant was charged with killing Sam Fairley, a relative. About noon on the day Sam Fairley met his death, he was riding in the automobile of James Tillman. Tillman observed that the defendant was following him along the road and Sam Fairley told Tillman to stop and “let’s give him a drink.” They stopped on one side of the road and defendant stopped on the other side of the road, both headed north. Then they had a drink or two and talked a few minutes. Defendant thought that Tillman had something to do with the disappearance of Lee Fairley and this was the subject of discussion when Sam Fairley told defendant that James Tillman didn’t know anything about the disappearance of Lee Fairley. Defendant then said to Sam Fairley, “I figured that is none of your damn business.” The defendant reached into his car and pulled out a rifle and shot Sam Fairley. According to Tillman’s version of the occurrence, he did not know just how the defendant was holding the gun at the time Sam Fair-ley was shot, but he demonstrated it before the jury. Tillman did not know whether defendant deliberately aimed the gun at Sam Fairley or not, but he repeatedly stated that he pulled the gun out of the car and shot Sam Fairley. All of the parties were kin and all had been drinking to some extent, although it is not shown that any of them were drunk.

Defendant’s version of the shooting was that he had put the gun in the car to shoot birds and maybe kill a deer, and that when he reached in to take the gun out of the car, he caught it by the trigger, and as he pulled it out, the rifle hit the side of the door causing him to squeeze the trigger and the gun fired. He stated that the safety had been left off. Defendant also contended that Sam Fairley and James Tillman were arguing about Sam’s statement that Tillman had been fooling with his wife. Defendant testified that he went to his car and was taking the gun out because Sam Fairley knew that he had the gun and he was going to put the gun in the back seat to keep Sam from getting it and shooting Tillman.

As to the actual shooting, defendant testified, speaking of the gun, as follows:

It was in my left hand and when I pulled it out from under the seat, I reached over and caught it with my hand by the trigger. And the safety was probably off, and when the door bumped it, you see, I squeezed.

He stated that he squeezed the trigger because he did not want to drop the gun. Defendant and Tillman testified that defendant and Sam Fairley were good friends.

After the shooting, according to Tillman, the defendant asked him to take Sam Fair-ley to the doctor. Tillman refused but went to find a telephone to call an ambulance. Then the defendant left the scene, according to his version, to find someone to help him put Sam Fairley in the car and take him to the doctor. When he got back to the scene of the shooting, someone helped him put Sam Fairley in the car and they took him to the hospital. Fairley was conscious at least part of the time on the way to the hospital, but was dead on arrival. He never made any statement about the shooting.

Was the verdict contrary to the overwhelming weight of the evidence?

Citing and relying upon King v. State, 254 Miss. 162, 181 So.2d 158 (1965), and Done v. State, 202 Miss. 418, 32 So.2d 206 (1947), the defendant argues that the verdict was contrary to the overwhelming weight of the evidence. There are some similarities between the facts of the instant case and some of the facts in Done and King, but we are of the opinion that the question of the defendant’s guilt was for the jury. There are several aspects of defendant’s testimony vital to his theory of the case which the jury was fully justified in rejecting. After a careful study of the evidence, we are of the opinion that the question of defendant’s guilt was a matter for the jury and we cannot say that it was contrary to the overwhelming weight of the evidence.

Did the lower court err in overruling defendant’s objection to the testimony of the sheriff?

After the killing and after consulting with Tillman, the sheriff talked to the defendant before he was given the “Miranda” warning as prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The sheriff asked the defendant what had happened. The defendant said to the sheriff: “Let’s go over to the house and get the gun.” The sheriff never questioned the defendant any further. And this is the only statement made by the defendant. It will be noted that the sheriff did not ask the defendant if he had shot Sam Fairley. He merely asked him what had happened. We do not think that this brief question under the circumstances constituted official interrogation as contemplated by the Miranda case. But if it was, we can safely say that beyond a reasonable doubt any error was harmless within the rule laid down in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). There is no doubt that defendant’s gun killed Fairley. Defendant testified to the shooting. Under the circumstances defendant’s statement was neither exculpatory or inculpatory — nor was it harmful.

We have carefully considered the defendant’s assignments of error concerning the instructions and we find no error in this respect. We are, therefore, of the opinion that the case should be and it is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: INZER, Presiding Justice,

text:
    MAGNOLIA FEDERAL SAVINGS & LOAN ASSOCIATION v. RANDAL CRAFT REALTY COMPANY, INC.
    No. 48663.
    Supreme Court of Mississippi.
    March 2, 1977.

      Watkins, Pyle, Ludlam, Winter & Stennis, Robert H. Weaver, Luther S. Ott, Jackson, for appellant.
    M. Curtiss McKee, Jackson, for appellee.
    Before INZER, PATTERSON and WALKER, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by Magnolia Federal Savings & Loan Association from a decree of the Chancery Court of the First Judicial District of Hinds County awarding appellee Randal Craft Realty Co., Inc., $11,500 as a real estate commission. Appellee cross appeals contending that it was entitled to a larger sum.

The record reveals that in 1972 Magnolia Federal Savings & Loan Association, hereinafter referred to as Magnolia, was the owner of a building and lot in north Jackson under lease to Franchise Realty Interstate Corporation and occupied by McDonald’s, a nationally known hamburger chain. This lease provided, among other things, that in the event the lessor had an offer from someone to purchase the premises, which it desired to accept, notice of such offer would be submitted to the lessee, and that the lessee would have the first option to purchase the property “by giving notice to the lessor of its intention to purchase within the thirty day period at the same price and the same terms of any such offer.” This lease had been arranged by Terry Hairston, a real estate agent, and he was to receive as his commission six percent of the lease payments each year until the expiration of the lease. However, there was nothing in writing relative to these payments until after this controversy arose.

In the early part of 1972, Magnolia was advised by the Federal Home Loan Bank that its investment in this property was unauthorized and it would have to dispose of the property. Magnolia then tried to sell the property to its lessee, Franchise, but Franchise did not display an interest in buying the property. Magnolia then contacted some real estate agents in an attempt to sell the property. On or about August 10, 1972, Craft learned that the property was for sale and acquired listing information from Magnolia. The listing information given to Craft was a gross price of $307,000, with a real estate broker’s commission of six percent on the first $50,000 and five percent on the balance. Craft was also instructed that a prospective purchaser would have to assume the payments of the lease commission to Hairston. The listing with Craft was not an exclusive listing.

Craft set about to try to find a buyer for the property. One of the people contacted was David E. Crawley of Kosciusko, who expressed an interest in buying the property as agent for his son and daughter. Craft then prepared certain analysis and appraisal of the property for the prospective purchasers in an attempt to show the Crawleys that the property was a good investment. This required considerable time and effort on the part of Craft.

On August 21,1972, Craft was advised by Magnolia that it had reduced its purchase price and would sell the property for $275,-000 net to Magnolia. Craft then contacted Crawley who agreed to purchase the property at a price of $292,500. This price included a $17,500 broker’s fee.

As soon as the agreement was reached, Craft prepared a contract on the standard form for the sale and purchase of real estate. The contract was immediately carried to Magnolia where it was signed by Craw-ley, Craft and Phillip H. Payment, president of Magnolia. This contract had the following special provisions:

Purchasers and sellers recognize that Franchise Realty Interstate Corporation has an option to purchase herein described property within thirty days from date of notice upon the same terms and conditions set forth herein. If this option is not exercised by Franchise Realty Interstate Corporation, then the contract will then be in full force and effect and this sale shall be closed within 45 days from date of this contract. (Emphasis added).

The contract did not mention the fact that Crawley was assuming the payment of the lease commissions to Hairston, but Crawley understood that he was to assume this payment.

On August 23, Magnolia notified Franchise by letter that it had sold its McDonald’s location. The letter stated, “We are enclosing herewith a copy of the contract, so that all of the terms and conditions of the sale will be known to you.” The purpose of the letter was to comply with the terms of the lease with reference to the option of Franchise to purchase the property. Nothing was stated in the letter relative to the fact that Hairston was entitled to a commission under the lease. Two days later Magnolia acknowledged by letter to Hairston that he was entitled to a commission under the lease.

On September 4,1972, Franchise, much to the surprise of all parties, by letter advised Magnolia of its intention to purchase the property in accordance with the purchase and sale agreement. Apparently, there was some discussion between Franchise and Magnolia relative to whether Franchise was required to pay the real estate commission as part of the purchase price. The minutes of Magnolia reflect that the gross price of the property was $292,500 with the association to pay the fee necessary. Thereafter, Payment advised Franchise that the $292,-500 was the purchase price that it was obligated to pay under the terms of the lease and contract for sale and that the broker’s commission was a matter of contract between the association and Randal Craft and the association would be responsible for any obligation to that broker only. Thereafter, the sale to Franchise was finally closed on December 13, 1972. The minutes of Magnolia of December 13 reflect the following:

President Payment next reported that the sale of McDonald’s had been consummated and we had received a gross check in the amount of $288,000, and that the Association should net approximately $275,000 from the sale proceeds. President Payment was instructed to settle the transaction on McDonald’s to Terry Hair-ston, who was the leasing agent, and with Randal Craft, who was a realtor involved in the sale transaction. President Payment was instructed to report back to the Executive Committee as to his transactions in dealing with Mr. Hairston and Mr. Craft.

It seems clear at this point that Magnolia recognized that the sale of the property was due to the efforts of Craft and it recognized its obligation to pay Craft. However, Mr. Payment made no attempt to settle with Craft but did settle with Hairston. On December 27, 1972, Payment reported to the Board of Directors that he had settled with Hairston and paid him $12,000 but that Craft was not due any commission.

Thereafter, Craft filed this suit. A general demurrer was sustained to the original bill of complaint. Craft then filed an amended bill of complaint which sought recovery on the theory of the resulting or constructive trust. Magnolia answered and incorporated a general demurrer in this answer. This demurrer was overruled. The answer denied that Craft was entitled to recover any amount as a real estate commission.

The chancellor found from the evidence that Craft was entitled to a commission of $17,500, less $6,000 being one-half of the amount paid to Hairston by Magnolia. It was the opinion of the chancellor that Craft was at fault in failing to include in the purchase and sales contract the condition that the purchaser was required to assume the lease commission payable to Hairston. He also found that Magnolia apparently did not carefully examine the contract for sale and purchase before sending it to Franchise and was at fault in failing to see that Franchise was fully advised of the terms that it was required to meet. It was the chancellor’s opinion that the disagreement and litigation was brought about by the failure of the parties to see that the full terms and conditions were included in the contract and a decree was entered awarding Craft a money judgment for $11,500, hence this appeal.

On direct appeal Magnolia contends that the chancellor was in error in finding from the facts in this case that Craft was entitled to a commission. Appellant urges that Craft failed to prove a constructive or resulting trust and that the chancellor should have dismissed the bill of complaint. We find no merit in the contention that the chancellor should have dismissed the bill of complaint. The bill prayed for general relief and the chancellor in making a decision was required to determine from the facts and the law whether Craft was entitled to the commission. The chancellor found that Craft was entitled to a commission and in deciding the case we must consider the facts in the light most favorable to Craft, together with all reasonable inferences that may be drawn therefrom. While the proof of this case does not establish a constructive trust, it does establish a quasi-contract or constructive contract. A quasi-contractual obligation closely resembles a constructive trust, one difference being that an action to enforce a contractual obligation seeks to establish personal liability of the defendant to pay over a sum of money, while an action to enforce a constructive trust seeks to recover specific property. A quasi-contract, or constructive contract, is based on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. In this respect the terms “unjust enrichment” and “restitution” are modern designation for the doctrine of “quasi-contracts” and the basis for an action for “unjust enrichment” lies in a promise, which is implied in law, that one will pay to the person entitled thereto which in equity and good conscience is his. 17 C.J.S. Contracts § 6.

In Old Men’s Home, Inc. v. Lee’s Estate, 191 Miss. 669, 2 So.2d 791 (1941), we pointed out that a quasi or constructive contract rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. It is an obligation created by law, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money under circumstances that in equity and good conscience he ought not to retain and which in justice and fairness belongs to another.

Furthermore, in Cooke v. Adams, 183 So.2d 925 (Miss.1966), we held that any conduct of one party from which the other party may draw the inference of a promise is effective as such and the conduct of the parties is viewed as a reasonable man would to determine the existence or not of the contract implied in fact. We also stated:

A promise which is implied in fact is merely a tacit promise, one which is inferred in whole or in part from the expressions other than words by the promis- or, and a promise implied in law is one in which neither the words nor the conduct of the party involved are promissory in form or justify an inference of a promise, and the term is used to indicate that the party is under a legally enforceable duty as he would have been, if he had in fact made a promise. Ferrous Products Co. v. Gulf States Trading Co., Tex.Civ.App., 323 S.W.2d 292, affirmed 160 Tex. 399, 332 S.W.2d 310 (1960). (183 So.2d at 927).

In spite of the foregoing facts, Magnolia argues that Craft was not entitled to a commission as a matter of law because he had knowledge of Franchise’s right of first refusal and the right to first refusal prevented the sale to the purchaser procured by Craft. It is argued that this right of refusal constituted an impediment or defect in the title of Magnolia and the sale to Crawley failed on account of this defect. Magnolia contends that there was no agreement that Craft would be paid a fee if Franchise exercised its option. Magnolia relies on the rule of law announced in Best v. Kelley, 22 Wash.2d 257, 155 P.2d 794 (1945), wherein that Court adopted a rule announced in Renick v. Mann, 194 Ky. 251, 238 S.W. 763, where the Kentucky Court of Appeals stated:

The general rule is that a broker is entitled to his commission, who, acting in good faith, procures a purchaser willing, able and ready to take the property upon the terms offered by the principal, and this is true notwithstanding the sale fails because of a defect in the principal’s title of which the broker had no notice. But if the broker, at the time he makes the contract with the owner, knows of the defect in his employer’s title or knows facts sufficient to put a reasonably prudent person on inquiry, which, if followed with reasonable diligence, would bring to him such knowledge, he is not entitled to recover where the sale fails because of such defect, unless it was the'intention of the parties that the employer should subsequently perfect his title in order to perform the contract of sale.
(155 P.2d at 799).

Magnolia points out that this Court adopted this rule and cites Shireman v. Wildberger, 125 Miss. 199, 87 So. 131 (1921) and Stewart v. Harrison, 210 Miss. 750, 50 So.2d 624 (1951). While it is true that this Court has adopted a rule substantially the same as announced by the Washington Court, we are of the opinion, under the facts and circumstances of this case, the rule is not applicable and does not prevent recovery under the theory of a quasi-contract established by the facts in this case.

It is true that Craft was aware that Franchise had the first right of refusal under the terms of its lease, but the lease stated that Franchise had the right to purchase at the same price and under the same terms of the offer. Magnolia advised Craft that it would accept $275,000 net to Magnolia and that Craft would have to adjust the price to include any real estate commission he desired to earn. Craft then secured the contract with Crawley whereby Crawley agreed to purchase the property for $292,-500. Included in the purchase price was a real estate commission of $17,500. Magnolia agreed and submitted the same to Franchise. Franchise noticed that included in the sales price was the real estate commission. Since Franchise was exercising its option to buy at the same price as the property was offered to Crawley, it was only natural for it to inquire about the real estate commission. If one was to be paid Franchise wanted it to go to its broker. After inquiry Magnolia advised Franchise by letter, dated September 29, 1972, which reads in part as follows:

In view of our several telephone conferences held with regard to the decision of Franchise Realty Interstate Corporation to exercise its option to purchase described in Article 27 of the lease, there are two material items of the transaction which should be brought to your attention, so as to avoid any misunderstanding later.
First, the purchase price to the Craw-leys as stated in the August 22, 1972, contract of sale is $292,500. I have discussed the matter of possible reduction with our Board of Directors and the Board has concluded that $292,500 is the purchase price which Franchise Realty Interstate Corporation is obligated to pay under the terms of both the lease and the contract of sale.
Next, there is the matter of the broker’s commission which has also been discussed with the Board. The broker’s commission is a matter of contract between Magnolia Federal Savings and Loan Association and Randall Craft, and the Association will be responsible for any obligations to that broker only. Therefore, no part of the purchase price is to be withheld for the payment of any brokerage fee connected with the transaction.

At this point, the chancellor was certainly justified in finding that Magnolia recognized that Craft was entitled to a commission. Especially is this true since Magnolia admits that the purchase agreement secured by Craft from Crawley was the sole cause of the sale to Franchise and Magnolia collected from Franchise the commission called for in the contract. Under the facts and circumstances of this case, the acts of the parties placed in the hands of Magnolia $17,500 which in equity, good conscience, justice and fairness belongs to Craft. To allow Magnolia to retain the money would allow it to unjustly enrich itself at the expense of Craft, whose efforts Magnolia admits were the sole cause of the sale to Franchise.

We have carefully considered the other errors assigned and find them to be without merit. For the reasons stated we are of the opinion that this case should be affirmed on direct appeal.

CROSS APPEAL

On cross appeal, Craft contends that the chancellor was in error in holding the amount which he was entitled to recover should be reduced to $11,500 because of his failure to put into the contract for sale executed by Crawley and Magnolia the stipulation that Hairston was entitled to a commission under the terms of the lease. This stipulation would have increased the purchase price by the amount of the commission due Hairston. As heretofore pointed out the chancellor was of the opinion that both parties were negligent in failing to put into the contract the stipulation that the purchaser would be liable for the commission due Hairston. It is apparent that the chancellor in holding that Craft and Magnolia were both responsible for this oversight was simply doing equity. Craft having sought equity was required to do equity, and we cannot say the chancellor was manifestly wrong in adjusting the equities. Consequently, we are of the opinion that this case should be affirmed on cross appeal.

This case was considered by the Judges en banc.

AFFIRMED ON DIRECT AND CROSS APPEALS.

All Justices concur, except SUGG, J., who took no part.


text:
    A. C. WALKER v. NATIONAL CAR RENTAL et al.
    No. 49242.
    Supreme Court of Mississippi.
    March 9, 1977.
    C. R. McRae, Robert P. Krebs, Pascagou-la, for appellant.
    Megehee, Brown & Williams, John M. Kinard, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and J. 0. SAMS, Sr., Commissioner.

AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Wilmer H. WHITTLE.
    No. 49212.
    Supreme Court of Mississippi.
    March 9, 1977.
    Bourdeaux & Jones, Thomas R. Jones, Meridian, D. M. Anderson, Newton, for appellant.
    James B. Everett, Decatur, for appellee.
   Appeal from Circuit Court, Newton County; Roy Noble Lee, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.

LEE, J., took no part.


text:
    ROELL DEVELOPMENT CORPORATION and Deposit Guaranty National Bank v. POLK BROTHERS, INC.
    No. 49228.
    Supreme Court of Mississippi.
    March 9, 1977.
    Binder, Lucas & Lohrmann, Jerome L. Lohrmann, Jackson, for appellants.
    Fox & Gowan, John H. Fox, III, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Lois BROWN v. M & B CONSTRUCTION, INC., et al.
    No. 49234.
    Supreme Court of Mississippi.
    March 9, 1977.
    Johnny N. Tackett, Aberdeen, for appellant.
   Appeal from Chancery Court, Itawamba County; James E. Bost, Chancellor.

Lumpkin, Holland, Ray & Upchurch, Tu-pelo, Russell & Russell, Frank A. Russell, Fulton, for appellee.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    Elsie McClelland v. HERSCHEDE HALL CLOCK COMPANY et al.
    No. 49187.
    Supreme Court of Mississippi.
    March 9, 1977.
    Ben F. Hilbun, Jr., Starkville, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellees.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    In the Matter of the ESTATE of Zollie A. CLANTON, Deceased. Perry D. JONES and Edna B. Jones v. Malcolm KENDRICK, et al.
    No. 49243.
    Supreme Court of Mississippi.
    March 9, 1977.
    Burgin, Gholson, Hicks & Nichols, Hunter M. Gholson, John W. Crowell, Columbus, for appellant.
    Brown & Perkins, Ernest L. Brown, Macon, for appellee.
   Appeal from Chancery Court, Lowndes County; W. W. Brand, Jr., Chancellor.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Timothy TATUM et al. v. Webb DAVIS.
    No. 49244.
    Supreme Court of Mississippi.
    March 9, 1977.
    J. Edward Ulmer, Jr., Thomas G. Roberts, Bay Springs, for appellant.
    Oates & Houston, R. K. Houston, Jr., Bay Springs, for appellee.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Anne Kohn LEYENS v. Louis E. LEYENS.
    No. 49205.
    Supreme Court of Mississippi.
    March 9, 1977.
    Rehearing Denied April 20, 1977.
    Young, Scanlon & Sessums, Robert R. Marshall, Jackson, for appellant.
    Ramsey, Bodron, Thames & Robinson, Lee Davis Thames, Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Ernest Kellner, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Troy Parkerv. STATE of Mississippi.
    No. 49506.
    Supreme Court of Mississippi.
    March 9, 1977.
    Carter & Davidson, Dudley H. Carter, Columbus, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley and Karen A. Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Noxubee County; Joe 0. Sams, Sr., Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Arthur Singleton CHEEKS v. STATE of Mississippi.
    No. 49570.
    Supreme Court of Mississippi.
    March 9, 1977.
    John R. Countiss, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Leon F. Hendrick, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: JONES, Justice.

text:
    Thomas HOOD v. Charles Walton HAM et al.
    SC 1962.
    Supreme Court of Alabama.
    March 4, 1977.
    Rehearing Denied May 6, 1977.
    W. H. Rogers, Moulton, for appellant.
    Robert Straub, Russell & Straub, Decatur, T. M. Conway, Jr., Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
   JONES, Justice.

Where the jury fails to return a verdict, written or oral, and the trial Court enters judgment for the defendants, may the plaintiff predicate error by first taking notice thereof in a motion for a new trial? Yes; we reverse and remand.

A brief factual background is essential to an understanding of the issue here presented. Thomas Hood (driver) and wife (passenger) filed suits against Charles Ham (driver of the second car) for alleged injuries resulting from an automobile accident. Ham’s answer (general denial) to Mr. Hood’s suit included a counter claim. Ham’s insurance carrier filed a subrogation claim against Hood. The two suits, including the counter claim and the subrogation claim, were consolidated for trial. The jury returned a single verdict in favor of Mrs. Hood for $70,000.

Accordingly, the trial Judge rendered judgment for Mrs. Hood; and the Court’s minute entry reflects the following: “All other claims in these two cases consolidated for trial, based on verdict of jury, are by these premises hereby denied.” Mr. Hood’s motion for new trial, testing the propriety of the trial Court’s action in rendering judgment against him absent an adverse jury verdict, was denied.

Our discussion proceeds on the premise that counsel for Ham concede the jury returned but one verdict in the two cases consolidated for trial (in favor of Mrs. Hood); that no verdict whatsoever was rendered by the jury in Mr. Hood’s case; and that the trial Judge rendered judgment against Mr. Hood, dismissing his case. Further, Ham does not contend that the trial Court may properly enter judgment in a “jury demand” case where the jury fails to return a verdict; rather, he contends that the error was committed in the trial Court’s oral instruction to the jury; that counsel for Mr. Hood made no objection to the Court’s charge; and, therefore, he could not raise for the first time by way of motion for a new trial error which he had previously waived.

Arguing for affirmance, counsel for Ham quote portions of the trial Court’s oral instructions to the jury which followed, or was in connection with, the contributory negligence charge:

“ . . . Leave Thomas Hood and Charles Ham where you found them. In other words, nothing . . . You would just leave those two gentlemen where you found them when you sat down in the jury box, which means nothing, just like they are . . . Then you just don’t render a verdict in that case. In other words, you just leave them where you found them In other words you would just send these verdicts back blank. You would only return one verdict in this case Just leave them two just like you found them; you don’t return nothing.”

The jury was bound to follow the trial Court’s charge even though erroneous, contend Ham’s counsel, citing Tombrello v. McGhee, 282 Ala. 408, 211 So.2d 900 (1968). They contend further that because no objection was taken, or explanatory charge requested, the error, if any, was waived.

Indeed, this contention would be valid except for one significant principle: The oral charge will be considered in its entirety and portions of the charge will not be taken out of their context in order to give a meaning different from the meaning which is clearly intended from a consideration of the entire charge. Fuller v. Darden, 274 Ala. 447, 149 So.2d 805 (1963).

The quoted portions of the trial Judge’s oral instruction to the jury overlooks other language which, when considered as a whole, gives perspective to the entire charge. The reference made by the trial Court to, “You just won’t render a verdict” and, “You would just send these verdicts back blank” was clearly intended as explanatory of the jury’s duty to return a verdict for the defendant in the event the jury found the plaintiff’s injuries proximately resulted in his contributory negligence. The expression “return nothing” is referable not to the absence of a verdict but to the amount of damage.

Witness, for example, one further portion of his oral instructions:

“In other words, as I stated before, on Mr. Thomas Hood’s claim on simple negligence, [if] you found that Mr. Ham was guilty of negligence which caused the wreck, but you also believe that Mr. Hood himself was guilty of contributory negligence, then you would just leave them two just like you found them; you don’t return nothing, because then you — I mean, that verdict would have to be: ‘We, the jury, find for the Defendant.’ ”

Thus the motion for new trial timely raised for review the propriety of the trial Court’s entry of judgment of dismissal absent an adverse jury verdict.

The only authority vested in the trial Court to amend a jury verdict is limited to matters of form or clerical error and does not extend to matters of substance required to be passed upon by the jury. Alexiou v. Christu, 285 Ala. 346, 232 So.2d 595 (1970). For the rule relating to irregularity, or form of verdict, see also Alabama Power Company v. Cleckler, Ala., 323 So.2d 344 (1975).

This rule applies with equal force where there is a total absence of a jury verdict; and it is no answer to speculate that, in view of the verdict returned in the companion case, it is “apparent” what the jury “must have” intended. Upon demand of a jury trial, the plaintiff was entitled to have his cause adjudicated by a jury verdict. Where the jury returns no verdict whatsoever, there is no authority recognized in our law for the trial Court to enter a final judgment of dismissal.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.

      . For Mrs. Hood’s case on appeal, see Ham v. Hood, Ala., 340 So.2d 763 (1976).


author: BLOODWORTH, Justice.

text:
    Juanita B. CONVILLE v. Helen LIVEOAK et al.
    SC 2163.
    Supreme Court of Alabama.
    March 4, 1977.
    James L. Shores, Jr., Birmingham, for appellant.
    James M. Sizemore, Jr., Sylacauga, for W. R. Morgan, appellee.
    Donald W. Lang, Bell, Lang, Bell & Fielding, Sylacauga, for appellees.
   BLOODWORTH, Justice.

Plaintiff, Juanita B. Conville, appeals from the trial court’s entry of judgment confirming a sale for division. William R. Morgan, the purchaser at the sale moves for dismissal of the appeal. We deny the motion to dismiss and affirm on the merits.

Plaintiff was the owner of an undivided one-half interest in three tracts of real estate. Defendants were the owners of undivided interests in the same three tracts of land.

Plaintiff filed an action seeking a sale of the three tracts for division. The court ordered the sale of the tracts at public auction. A sale was conducted at which the tracts were sold separately for a total price of $11,625. Defendants objected to confirmation of the sale, claiming that the sales price was inadequate and showing that they had a firm offer from William R. Morgan to purchase the property for $16,000. The court set aside the first sale. At the second sale, Morgan was the high bidder and purchased all three tracts for a total of $16,000.

Plaintiff objected to confirmation of the second sale to Morgan, claiming that the price was inadequate. The trial judge set a date for a hearing on the objection. At the hearing, plaintiff’s attorney advised the court that plaintiff had a firm offer to pay $25,000 for the three tracts of land. Defendants’ attorney told the court that some of the defendants favored confirmation of the sale to Morgan because they felt a duty to him. No evidence or testimony was taken at the hearing, and none was offered by either side. The trial court entered judgment confirming the sale to Morgan. Plaintiff moved for new trial. The motion was denied by operation of Rule 59.1, ARCP. Plaintiff appeals.

Morgan moves for dismissal of the appeal under Rule 2, ARAP, contending that plaintiff failed to treat him as a party to the appeal and failed to serve upon him any of the documents required to be served by Rule 25(b), ARAP.

Plaintiff contends that she was denied due process because the trial court confirmed the sale without conducting an evi-dentiary hearing on the objection to confirmation. She asks that we exercise our supervisory power over the circuit courts and grant her a new trial.

We agree with defendants’ contention that plaintiff was afforded a hearing, at which she was represented by her attorney, and had the opportunity to call witnesses if she so desired. Having failed to avail herself of the opportunity afforded, she cannot now put the trial court in error for not permitting her to do something which her attorney did not request. There is thus no adverse ruling of the trial court at the hearing upon which a new trial might be granted. Cash v. Usrey, 278 Ala. 313, 178 So.2d 91 (1965).

In view of the result we reach on the merits, it is unnecessary to consider the motion to dismiss the appeal.

AFFIRMED.

MADDOX, JONES, ALMON and EM-BRY, JJ., concur.

      . This is not the same attorney as the one who now represents plaintiff on appeal.


author: BRADLEY, Judge.

text:
    Gladys Carleen FRAZIER v. Johnny FRAZIER.
    Civ. 885.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1977.
    Rehearing Denied Feb. 23, 1977.

      Samuel H. Sanders, III, Birmingham, for appellant.
    James D. Whitmire for Lentz & Nelson, Decatur, for appellee.
   BRADLEY, Judge.

This is a child custody case.

The appellee-father was awarded custody of three minor children born of his ten year marriage to the appellant-mother in a divorce decree rendered September 15, 1975. This proceeding was initiated when, on December 2,1975, the father filed a petition in the Circuit Court of Morgan County asking that the mother be cited for contempt in that she took the parties’ youngest child from the father’s custody on November 7, 1975 and refused to return the child to the father. A show cause order was issued by the court on November 26,1975 and a hearing on the matter was set for January 5, 1976.

On February 2, 1976 the mother filed a petition to modify the divorce decree so as to place custody of the three children in her. After a hearing where both parties presented evidence supporting their contentions, the trial court held that the mother had failed to carry the burden of proving such a change in circumstances since the divorce decree as to warrant a modification of that decree; consequently the petition was denied. The mother appeals.

The party seeking to modify a child custody decree has the burden of proving a material change in circumstances since the last custody decree which has so affected the welfare and best interests of the children as to require a change in custody. Ponder v. Ponder, 50 Ala.App. 27, 276 So.2d 613 (1973).

The trial court in the present case heard the evidence and decided there had been no sufficient change in circumstances since the last decree to warrant a modification. On review of that decision we give a presumption of correctness to it that can only be overcome by a conclusion that the evidence is sufficient to support a finding that the trial court is palpably wrong. Ford v. Ford, 54 Ala.App. 510, 310 So.2d 230 (1974), corrected, cert. den. 293 Ala. 743, 310 So.2d 234 (1975); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. den. 294 Ala. 757, 316 So.2d 214 (1975).

The evidence in the case at bar shows that the father works regularly and has done so for about nine years as a machinist in a manufacturing plant earning a weekly wage, including overtime, of about $180. He and his three children live in a three bedroom trailer in the immediate vicinity of several relatives who look after his children while he is at work and when he has to be away from home. He stated that he loves his children, and takes them to church and Sunday School on Sundays and Wednesdays. He awakens the children in the mornings; one of his relatives comes to his home to prepare breakfast and get the two oldest children off to school. The relatives keep the youngest child during the day and look after the two oldest children after their arrival at home after school until the father returns from work.

There was evidence in the record that the mother while married to the father abandoned the children on several occasions when she left with various men for varying periods of time. It also shows that the mother, after the divorce, took the youngest child from the father’s custody and kept the child for about two and one-half months without letting the father know where the child was staying. It was also shown in the record that the mother has remarried and is living with her husband in Jefferson County, Alabama.

There was testimony in the record that the father had failed to properly care for the children by not keeping them clean and providing needed medical attention. This testimony was disputed by the father and other witnesses.

After a careful examination of the evidence, we believe that the trial court could have reasonably concluded that the only evidence of changed circumstances since the divorce decree was the remarriage of appellant and that such circumstance, even though warranting consideration, did not standing alone, require a modification of the previous decree. Pezent v. Nelson, 52 Ala.App. 9, 288 So.2d 792 (1974). Consequently, we believe that the trial court’s decree should be affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HOLMES, Judge.

text:
    Andrew John STRASZEWICZ v. Lucy Seale Straszewicz GALLMAN.
    Civ. 990.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1977.
    Rehearing Denied March 2, 1977.
    Harry L. Hopkins, Birmingham, for appellant.
    Ira D. Pruitt, Jr., Livingston, for appel-lee.
   HOLMES, Judge.

The mother of a minor child filed in the Circuit Court of Sumter County a petition alleging that the natural father of the minor child and former husband of the mother had abandoned the child within the meaning of Tit. 27, § 3, Code of Alabama 1940.

The mother further alleged that her present husband was desirous of adopting the child. She specifically asked the circuit court to find that the natural father had abandoned the child and that the circuit court authorize the Probate Court of Sumter County to allow the present husband to adopt the child without the consent of the natural father.

An ore tenus hearing was held by the circuit court and the learned trial judge found that the natural father had abandoned the child and that the adoption proceedings should proceed in the probate court. The natural father appeals to this court. The sole issue before us is whether the natural father abandoned the child within the meaning of the adoption statutes.

It is the policy of this court that appeals to this court be decided on their merits and on the issues as presented to the court by the parties. Unfortunately, we are unable to do that in this instance.

Adoption is purely a statutory right and the adoption statutes must in most instances be strictly construed. Franklin v. White, 263 Ala. 223, 82 So.2d 247 (1955); Abney v. De Loach, 84 Ala. 393, 4 So. 757 (1887). A reading of the adoption statutes reveals that the probate court had jurisdiction in adoption proceedings. Tit. 27, §§ 1— 11, Code of Alabama 1940. The cases support this statutory mandate. Henderson v. Feary, Ala.Civ.App., 340 So.2d 808 (1976), cert. denied, Ala., 340 So.2d 811 (1976); Butler v. Giles, 47 Ala.App. 543, 258 So.2d 739 (1972); Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387 (1969); Schwaiger v. Headrick, 281 Ala. 392, 203 So.2d 114 (1967).

This court has diligently searched for some legal authority which would permit the circuit court to make the determination of abandonment within the meaning of Tit. 27, § 3, Code of Alabama. We find no such authority.

In view of the above, it becomes our duty to find that the circuit court had no subject matter jurisdiction to render the decree here appealed from; the decree is void; a void decree will not support an appeal. This court can acquire no jurisdiction on such an appeal even by consent of the parties, which is the case in this in-, stance, and we must take notice of our own want of jurisdiction apparent on the record. The appeal in this case must therefore be dismissed. Craig v. Root, 247 Ala. 479, 25 So.2d 147 (1946); Boozer v. Boozer, 245 Ala. 264, 16 So.2d 863 (1944); Bell v. King, 210 Ala. 557, 98 So. 796 (1924); 2 Ala.Dig. Appeal and Error &wkey;21, 23, 112.

This court would be remiss if it did not make the following observations. Both parties to this appeal were more than ably represented by their respective counsel in the trial below. The forum in which the matter was tried was a conscious selection by both parties. The reason for the selection was candidly explained to this court during oral argument. This court understands and appreciates the reason therefor. However, we must follow the law. We would call to the attention of those concerned Tit. 13A, § 4-105, Code of Alabama (1975 Int.Supp.), which provides as follows:

“Adoption transfer jurisdiction; record of proceedings. — Adoption proceedings, primarily cognizable before the probate courts may be transferred to district court on motion of a party to the proceeding in probate court. Probate court offices shall maintain records of all adoption proceedings.”

Additionally, we note that counsel for both parties have favored this court with excellent briefs in support of their respective positions, for which we are grateful.

With respect to further proceedings in this matter, if they be had, it might be well for all parties concerned to consider not only the legal principles involved, but also what is in the best interest of this minor child.

APPEAL DISMISSED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Robert B. LEAVELL v. Alan NOLIN and Ed O’Donnell.
    Civ. 969.
    Court of Civil Appeals of Alabama.
    March 2, 1977.

      Scott Q. Kirkland, Alton & Leavell, Montgomery, for appellant.
    John D. Cates, Jr., Montgomery, for ap-pellees.
   WRIGHT, Presiding Judge.

This is an appeal by defendant from a verdict and judgment against him and from the denial of a motion for new trial. We affirm.

Defendant presents three issues on appeal. The first is, in fact, not one but two. Defendant contends error in the admission by the court of testimony concerning a city ordinance and its violation. He further contends error in the giving of written charges relating to the ordinance.

We will dispose quickly of the first issue, whether in reality one or two. Disposition is founded upon failure to either claim or save the charged error. The record discloses that the text of the ordinance came into evidence during cross-examination of a witness by defendant himself. No objection was presented. It is unavailable as error on appeal. Rule 46, ARCP. We further find no objection in the record to the court’s charge, either written or oral. A failure to comply with Rule 51, ARCP presents nothing for review on appeal.

The second issue relates to the denial of a motion for new trial. A ground of the motion for new trial was that a witness and party, who had confessed judgment and suffered a default against himself prior to trial, had testified falsely at the trial. An affidavit from the witness was attached. That affidavit said that the witness misunderstood questions posed to him during his testimony and that the answers he had given concerning the actions and statements made to him by the defendant were untrue.

It is readily discernible from the record why the court refused a new trial. Upon direct and cross-examination during the trial and in a pre-trial deposition, the witness had the questions, which he claims now to have misunderstood, posed to him in clear and certain language. The answers to the questions were equally clear. They supplied evidence against defendant in support of the charge of negligence. The trial court saw and heard the witness testify. The refusal of the court to accept the recantation of the witness on motion for new trial is within the discretion of the court. It is only in extraordinary cases that newly discovered evidence in the form of a recantation of testimony by a witness will be allowed as grounds for a new trial. Wallace v. State, 41 Ala.App. 65, 124 So.2d 110, cert. denied, 271 Ala. 701, 124 So.2d 115 (1960). This is not such a case. The refusal of the motion for new trial strengthens the presumption of correctness of the verdict. Goodwin v. Hall, 275 Ala. 297, 154 So.2d 654 (1963).

The third issue presented is that the verdict is contrary to the great weight of the evidence. Examination fails to reveal that issue as a ground of the motion for new trial. Failure to make such ground in the motion for new trial prevents a ruling thereon by the trial court and the claiming of error on appeal. Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 (1966); Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974).

The judgment below is affirmed.

BRADLEY and HOLMES, JJ., concur.


author: CATES, Presiding Judge. CATES, Presiding Judge.

text:
    Eugene WILLIAMS, alias v. STATE.
    6 Div. 930.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 26, 1976.

      Sam A. Beatty, Northport, for appellant.
    William J. Baxley, Atty. Gen. and Gary R.Maxwell, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Murder, first degree: life imprisonment. Trial took place March 17, 1975.

The only points raised by appellant are systematic exclusion of citizens over 65 from the jury roll and fraud in the manner of making up that roll. Under Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, appellant has standing.

The questions were raised below by way of a motion for new trial. The prosecution argues that the question can only be presented by a pre-arraignment proceeding such as motion to quash. However, Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190, on the question of procedure, held that the Alabama trial court should have taken evidence on the motion for new trial because the Alabama Supreme Court (276 Ala. 513, 164 So.2d 704) considered and decided the claim under the new trial motion on the merits. Certainly this is the established Alabama procedure in the face of a constitutional claim of systematic exclusion. Gibbs v. State, 44 Ala.App. 15, 200 So.2d 518; Stallworth v. State, 45 Ala.App. 254, 229 So.2d 26; Washington v. State, 46 Ala.App. 539, 245 So.2d 824.

Thomas v. State, 277 Ala. 570, 173 So.2d 111, and Lipscromb v. State, 53 Ala.App. 647, 303 So.2d 148, state pre-arraignment motions to quash for systematic exclusion, are no longer indispensable. Kelsoe v. State, 54 Ala.App. 179, 306 So.2d 47 and Smiley v. State, 53 Ala.App. 268, 299 So.2d 312, must be viewed as resting on the pro-spectivity of Penn v. Eubanks, D.C., 360 F.Supp. 699.

I

Fraud in the make-up of the jury roll January 31, 1975, was made to appear from the evidence adduced on the motion for new trial. The species of fraud consisted of random selection of names from the voters registration lists without any further screening other than as to address and occupation. See State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198, as to “fraud in law” where the sole source without investigation was a voters list. This is a qualitative deficiency. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195.

However, in cases other than those deriving from the Fourteenth Amendment, the approved procedure requires a pre-arraignment motion to quash the venire. See Lip-scromb, supra.

Hence, as to the breach of the state law there was no adjectival protection of the record.

II

As to the exclusion of citizens over 65 years another picture is here presented. The 1970 Census for Tuscaloosa County shows 10,679 persons 65 years and over. This compares with 7,000 19 and 20 year-olds.

Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, does not apply here because in the instant case the jury wheel was well-nigh empty. See Code 1940, T. 30, §§ 22 and 23.

Alabama law, Code 1940, T. 30, § 21, as amended, does not exclude persons over 65 from being put on the jury roll. Rather it leaves serving after summons to the individual.

At all events persons over 65 are an identifiable group who should not have been systematically excluded from the jury roll. We say systematically advisedly because the prosecution made no attempt to contradict the defendant’s witness, Kathy Bolling, clerk to the jury commission January-April 1975, who testified that in using names taken at random from the voter’s list (by computer) she had been instructed to omit those over 65.

We quote from an affidavit made by Bob Kyle, a jury commissioner:

“In the latter part of January 1975 we learned that the Court had set out to draw new venires of jurors for up-coming Jury Weeks and had determined that there were not enough cards left in the Jury Box to constitute one whole venire for one week. We checked up and found that to be true. It is doubtful that there were as many as a hundred or so cards left in the Jury Box for selection.
“On January 31, 1975, we received an order from Judge Fred W. Nicol to refill the Jury Box and re-form the Jury Roll with such cards as were at that time available. We had discussed the matter with him and told him about the old cards not being ready for use at the time that and that the only cards that we had had come from the computer selection of them from the voting list on the computer. He felt that the situation was an emergency and that jurors were immediately necessary in order that our court system could function. We had Mr. Culp come to the Judges office with the available cards and with a printout of them that we felt could be used as a Jury Roll. Judge Nicol agreed and we put in the Jury Box the several thousand jury cards which were the product of our random selections from the voters list.
Thus, on January 31, 1975, the Jury Roll was re-formed and the Jury Box was refilled.” [Italics added.]

The defendant was entitled to a cross section of the community without purposeful exclusion, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690. Since trial was after January 21, 1975, Taylor controls. See Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790.

The judgment below is reversed and the cause is remanded for new trial.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents.

ON REHEARING

CATES, Presiding Judge.

The prosecution’s brief on rehearing in argument ignores: Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; Gibbs v. State, 44 Ala.App. 15, 200 So.2d 518; Stallworth v. State, 45 Ala.App. 254, 229 So.2d 26; and Washington v. State, 46 Ala.App. 539, 245 So.2d 824.

The State took the last three cases to the Supreme Court of Alabama without success. We know that the denial of the discretionary writ of certiorari creates no precedent; however, in view of Sims v. State, 286 Ala. 712, 246 So.2d 439, approving Gibbs, supra, and the action of the Supreme Court of the United States in Coleman, supra, we are confident that we are following established decisional law and not creating new principles.

The application is overruled.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur, except DeCARLO, J., who dissents.

      . “No person over the age of sixty-five years shall be required to serve * * * unless willing to do so.” See also T. 30, § 55(8).

      . Gibbs is cited with express approval in Sims v. State, 286 Ala. 712, 246 So.2d 439.

      .In view of the Supreme Court’s setting up of a committee to recommend new Rules of Criminal Procedure, Alabama may soon have an express procedural guide to replace the Coleman principle. A clear cut and uniform rule would seem to be permissible under Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).