text:
    James F. TAYLOR, Jr., Clerk of Circuit Court of Hillsborough County, Appellant, v. TAMPA ELECTRIC COMPANY, a Florida Corporation, et al., Appellees.
    No. 76-135.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.
    John W. McWhirter, Jr., of Cason, McWhirter, Henderson & Stokes, Tampa, for appellant.
    James V. Lau of Holland & Knight, Tampa, for appellee Tampa Elec. Co.
   PER CURIAM.

This case comes before this court on an appeal from a final order of the circuit court directing the clerk of that court to refund commissions which had been collected on a portion of monies paid into the registry of the circuit court in an eminent domain proceeding.

Appellee, an electric company, was the petitioner in an eminent domain proceeding pursuant to Chapters 361 and 73, Florida Statutes. In the petition, the appellee sought to utilize the quick taking procedures provided by Chapter 74. Appellee deposited the appropriate sum into the registry of the court along with its declaration of taking. An order of taking was duly entered.

Appellee directed the clerk of the circuit court to refrain from deducting any clerk’s commissions from the respective defendants at the time of final judgment. After the final judgments were all entered the appel-lee requested a refund of all monies remaining in the registry of the court. The appellant, the clerk of the circuit court, demanded payment of a commission of $1,378.82 on the funds which had been distributed to the various defendants. No commission was sought upon the funds to be refunded.

Appellee paid the commission under protest, withdrew the remaining funds from the registry of the court, and filed a motion for an order directing the clerk to refund commissions exacted. The circuit court granted the motion. It is from that order that appellant appeals.

The issue before this court is whether a clerk of a circuit court may collect a commission on funds disbursed from the registry of the court to a defendant in an eminent domain proceeding utilizing Chapter 74 F.S. We hold that a clerk cannot collect such a commission.

Florida Statutes § 74.051 (1965) provided in part that:

“. . . [N]o sum paid into the registry of the court pursuant to this chapter shall be charged with commissions or poundage.”

In City of Sarasota v. Burch, 192 So.2d 9 (Fla.App.2d 1966) this court held that in eminent domain proceedings the above-cited statute prevented a clerk from collecting a commission on sums paid to defendants or refunded to a petitioner from funds deposited in the court registry.

Fla.Stat. § 74.051(3) (1975) presently provides in part that:

“No sum refunded to the petitioner from the registry of the court pursuant to this chapter shall be charged with commissions or poundage.”

Appellant contends that the change in statutory language manifests an intent by the legislature to allow the clerk of the court to charge a commission on funds paid over to defendants which are not refunded to the petitioner.

At the time the legislature made the above-cited change in language, the legislature also added the following language to Fla.Stat. § 74.051(3):

“The clerk is authorized to invest such deposits so as to earn the highest interest obtainable under the circumstances in state or national financial institutions in Florida insured by the Federal government. Any interest earned shall be credited to the secondary road fund of the respective county.”

The majority of condemnation proceedings under Chapter 74, F.S. are brought by governmental bodies which would have to use public funds to pay a commission to the clerk on the monies deposited in the registry of the court. Fla.Stat. § 74.011 (1975) provides that certain privately owned utility cooperatives or corporations may avail themselves of the chapter to acquire a “quick taking.”

In 1967, in order to receive some income from the monies deposited in the registry of the court, Fla.Stat. § 74.051(3) was amended to authorize the clerk to invest these funds to earn interest.

Therefore, we hold that the legislative intent in changing the language of Fla.Stat. § 74.051(3) was to allow the clerk of the court to make investments and not to authorize the collection of commissions.

Accordingly, the order appealed is AFFIRMED.

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DEMETREE BUILDERS, INC., et al., Appellants, v. James R. POWERS, Appellee.
    No. 75-1444.
    District Court of Appeal of Florida, Second District.
    July 23, 1976.

      Robert Goldhagen and C. R. Talley, of Himes & Talley, Tampa, for appellants.
    James W. Bauman, of Gormin, Geoghe-gan, Easley, Gránese & Bauman, P. A., Clearwater, for appellee.
   PER CURIAM.

This is an appeal from a final judgment for a masonry subcontractor on a claim of lien transferred to a bond. The testimony sustains the court’s view that the monies owed for completed work more than offset the value of any cleanup services which the subcontractor remained obligated to perform. Therefore, when the contractor refused to make further payments, the court was warranted in concluding that the subcontractor was entitled to leave the job and enforce a lien for the work he had finished less the cost of cleanup. The evidence is confusing and contradictory with respect to the exact amount which was owed, but we cannot say that there is insufficient evidence to support the court’s conclusion that the subcontractor should have been paid the net amount of $8,130.38.

The award of attorney’s fees cannot stand because there were no stipulations with respect to attorney’s fees and no testimony presented concerning what would be a reasonable fee. United Bonding Ins. Co. v. Presidential Ins. Co., Fla.App.2d, 1963, 155 So.2d 635. Likewise, the interest must be recomputed because the court erroneously calculated interest from April 3, 1973, when the record reflects that April 27, 1973, was the earliest date upon which any money was owing.

The case is remanded for a hearing to determine the amount of a reasonable attorney’s fee to be awarded appellee’s attorney for services in the trial court and to recompute the interest. Otherwise, the judgment is

AFFIRMED.

McNULTY, C. J., and BOARDMAN and GRIMES, JJ., concur.


text:
    Edward J. CONNOR, Appellant, v. Thelma DREYER and Frederick Dreyer, Jr., Appellees.
    No. 75-1659.
    District Court of Appeal of Florida, Second District.
    July 23, 1976.
    H. Vance Smith of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    No appearance by appellees.
   PER CURIAM.

Plaintiff-appellant Connor appeals from an order granting appellees’ motion to dismiss his action to foreclose a mechanic’s lien.

Appellant, a general contractor, contracted with appellees for the construction of a residence. The work was commenced on August 25, 1972 and performed until November 3, 1972 when appellees terminated the contract and ordered appellant to cease and desist from further performance of the work. At that point, the job was about 85% completed; and apparently a dispute had arisen concerning the manner in which appellant was performing the contract.

Appellant perfected a claim of lien, claiming approximately $19,350 due under the contract, and this action ensued. Ap-pellees filed a motion to dismiss because of appellant’s failure to file a contractor’s affidavit five days prior to institution of the suit as required by § 713.06(3)(d)(l), F.S. 1973. Thereafter, appellant demanded arbitration as provided for in the contract, and the action was held in abeyance pending the arbitration. An arbitration award was ultimately entered in favor of appellant in the sum of approximately $10,500, and he returned to the court seeking to foreclose his lien to the extent of the award. At that point, after hearing arguments, the court entered the order appealed from dismissing the action “for failure of the plaintiff to allege the service of the affidavit of the contractor upon the defendant-owners five days prior to the institution of the action, which is a prerequisite to plaintiff’s institution of its [sic] suit to enforce a lien pursuant to Florida Statutes § 713.06(3)(d)l.”

Section 713.06(3), F.S.1973, provides in material part as follows:

“(c) When any payment becomes due to the contractor on the direct contract, except the final payment:
1. . The owner may require (and in such event, the contractor shall furnish as a prerequisite to requiring payment to himself) an affidavit as prescribed in paragraph (d)l. of this subsection, on any payment made or to be made on a direct contract; .
******
(d) When the final payment under a direct contract becomes due the contractor: 1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner such affidavit. The contractor shall execute said affidavit and deliver it to the owner at least five days before instituting suit as a prerequisite to the institution of any suit to enforce his lien under this chapter.” (Italics supplied.)

Appellant contends that an affidavit is required as a condition precedent to suit only, as provided for in the quoted subsection (d)(1), when payment is sought for the final payment due under a direct contract. With respect to any payment due before the final payment, he argues that such an affidavit is required only when requested by the owner as is contemplated by subsection (c)(1), supra. It appearing that this suit was not instituted to recover a final payment; therefore, and the appellees not having yet alleged or shown that they requested such an affidavit with respect to a nonfinal payment, appellant insists it was error to dismiss his complaint. He’s correct.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.

      . Cf. Renuart Lumber Yard v. Stearn (Fla.1957), 95 So.2d 517.


author: GRIMES, Judge.

text:
    Frank DANIELS, Appellant, v. Michael GILLESPIE, Appellee.
    No. 76-427.
    District Court of Appeal of Florida, Second District.
    July 23, 1976.

      Frank Kowalski, Chief Asst. City Atty., Clearwater, for appellant.
    Allen P. Allweiss, of Allweiss & Kay, St. Petersburg, for appellee.
   GRIMES, Judge.

This is an interlocutory appeal from a temporary restraining order issued against appellant, Clearwater Police Chief, enjoining him from suspending appellee from the police force for violation of Fla.Stat. § 561.-25 (1975).

Fla.Stat. § 561.25 (1975) prohibits a policeman from owning an interest in or being employed in any manner by a business licensed under the beverage laws and dictates that a violation thereof shall result in suspension. On December 1, 1975, Police Chief Daniels sent a memorandum to the appellee pointing out that he had acquired an interest prohibited by the statute by reason of the fact that his new wife owned a 50% interest in a restaurant holding an alcoholic beverage license. In the memo, appellant stated he was allowing appellee sixty days within which to bring himself into compliance with the law. The memo concluded with the statement: “Failure to comply with this directive will result in appropriate action on the part of this office.”

During the sixty-day period, the appellee filed suit for declaratory judgment that he was not in violation of Fla.Stat. § 561.25. Pending disposition of the suit, appellee obtained the temporary restraining order from which this appeal is taken.

Under the Clearwater City Code, the authority to suspend or discharge a policeman appears to rest with the city manager rather than the chief of police. In any event, at the time the temporary restraining order was issued, there was no certainty that appellee was going to be suspended or discharged from the police force for violation of Fla.Stat. § 561.25. Since appellee had sustained no legal injury of which he could complain, there was no justiciable issue before the court. Morrison v. Plotkin, Fla.1955, 77 So.2d 254. The Declaratory Judgment Act cannot be invoked by a mere colorable dispute to obtain the opinion of the court upon a question of law. Colby v. Colby, Fla.App.2d, 1960, 120 So.2d 797. Should a suspension or discharge occur, appellee will have ample opportunity to test its propriety before the Clearwater Civil Service Board from which he will still have access to the courts.

In view of the fact that appellee had not presented a cause of action for declaratory relief, he was not entitled to a restraining order.

REVERSED.

HOBSON, A. C. J., and SCHEB, J., concur.


author: BOYER, Chief Judge.

text:
    Ruth S. MITCHELL, Appellant, v. The SCHOOL BOARD OF LEON COUNTY, Florida, Appellee.
    No. BB-380.
    District Court of Appeal of Florida, First District.
    July 26, 1976.

      Brian S. Duffy and Joseph C. Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellant.
    C. Graham Carothers and Michael Pearce Dodson of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appel-lee.
   BOYER, Chief Judge.

Pursuant to a reorganization plan, appellant’s position as supervisor of guidance and testing was abolished. She sought declaratory judgment and other relief. The question ultimately to be decided in that litigation is whether appellee acted properly in abolishing appellant’s position. Appellant, via discovery, sought to discover who participated in formulation of the plan. Two persons deposed by appellant were the Superintendent and Director of Pupil Personnel Services. When appellant sought to elicit the substance of the conversations with the school board attorney concerning the reorganization plan, appellee’s counsel instructed the deponents not to answer. Upon application to the trial judge for an order compelling discovery it was held that the “Government in the Sunshine Law” (F.S. 286.011) did not abrogate the attorney-client privilege as applied to a public body. This interlocutory appeal followed.

Requisite to application to the Sunshine Law is a meeting between two or more public officials. (Hough v. Stembridge, Fla.App.3rd 1973, 278 So.2d 288). That law was never intended to become a millstone around the neck of the public’s representatives when being sued by a private party, nor should it be construed to discourage representatives of the people from seeking legal counsel. Although the Sunshine Law applies to actions of school boards (see Canney v. Board of Public Instruction of Alachua County, Sup.Ct.Fla. 1973, 278 So.2d 260. See also City of Miami Beach v. Berns, Sup.Ct.Fla.1971, 245 So.2d 38, Town of Palm Beach v. Gradison, Sup. Ct.Fla.1974, 296 So.2d 473 and Time Publishing Company v. Williams, Fla.App.2nd 1969, 222 So.2d 470) those cases do not reach the point here urged by appellant. The situation sub judice is analogous to that involved in Bassett v. Braddock, Sup.Ct.Fla. 1972, 262 So.2d 425, wherein our Supreme Court, emphasizing that a labor negotiator employed by the school board was an attorney, said:

“The public’s representatives must be afforded at least an equal position with that enjoyed by those with whom they deal. The public should not suffer a handicap at the expense of a purist view of open public meetings, so long as the ultimate debate and decisions are public and the ‘official acts’ and ‘formal action’ specified by the statute are taken in open ‘public meetings.’ This affords the adequate and effective protection to the public on the side of the ‘right to know’ which was intended.” (Cites omitted: 262 So.2d 427)

Sub judice, appellant takes a broad approach, asserting that the trial judge erred in holding that the attorney-client privilege between the school board and its attorney is waived by F.S. 286.011, the Sunshine Law. The facts of this case do not require us to rule so broadly. As above recited, application of the Sunshine Law must be bottomed upon a meeting. Sub judice no meeting was involved; therefore the Sunshine Law is not applicable. Whether we would hold all communications between a public body and its attorney to be exempt from application of the Sunshine Law must await a case involving appropriate facts requiring that decision. (But compare Bassett v. Braddock, supra and Time Publishing Company v. Williams, supra.)

AFFIRMED.

McCORD and SMITH, JJ., concur.


text:
    Damarys Ann STRAKER et al., Appellants, v. Helen Drago LYNCH and Iowa National Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. Z-326.
    District Court of Appeal of Florida, First District.
    July 27, 1976.
    Angus W. Harriet, Harriet & Sproull, Palatka, for appellants.
    J. Robert McClure, Jr., and William C. Owen, McClure, Wigginton, Campbell & Owen, Tallahassee, Joe C. Miller, II, Miller, Perry & Miller, Palatka, for appellees.
   BOYER, Chief Judge.

Appellants, plaintiffs in the trial court, obtained judgment in their favor, but nevertheless appealed, asserting that the jury’s award of damages was grossly inadequate.

On August 21, 1972, appellant Damarys Ann Straker was proceeding south on U.S. Highway 17. As she stopped to make a left turn, her automobile was struck in the rear by an automobile driven by appellee Helen Lynch. Appellee Lynch and her insurer, Iowa National Mutual Insurance Company, admitted liability, and a trial was held on the issue of damages.

At trial, appellant Mrs. Straker, testified that she received extensive treatment for pain which she had not experienced before the August, 1972 accident. She testified that $4,639.37 was spent for medical treatment of injuries sustained in that accident and that the bills were reasonable and necessary. She admitted that she had had a previous accident in March of 1972, and that as a result she incurred medical expenses in excess of $1,900.00; but claimed that she had recovered from that accident before being involved in the second accident in August of 1972.

Four doctors testified, two testifying directly at trial while the depositions of two others were introduced and read into the record. Dr. Farrar, testifying on behalf of appellant, stated that appellant’s injury had its origin in the August, 1972 accident. Although Dr. Farrar modified his opinion somewhat on cross-examination, he nevertheless adhered to his original position that appellant’s neck injury originated in the accident of August, 1972. Dr. Barrineau, who treated Mrs. Straker for both the March, 1972 and August, 1972 accidents, testified that when he saw Mrs. Straker on May 10, 1972, she had fully recovered from the March accident. Dr. Gillispie, whose deposition was introduced at trial and who first examined Mrs. Straker more than two years after the August accident, stated that in his opinion Mrs. Straker did not receive any permanent residual injuries as a result of either the March or August accidents, but did not really differentiate the injuries received in the two. Finally, Dr. Lynde could not relate the cause of Mrs. Straker’s injuries, but did question whether the August accident caused the symptoms of which she complained at the time she consulted him.

Despite the fact that medical bills totaling $4,639.37 were introduced into evidence, the jury awarded only $1,500.00 to Mr. Straker for medical expenses and loss of consortium. The jury also awarded $5,000.00 compensatory damages to Mrs. Straker, and, pursuant to a stipulation between the parties, $1,500.00 for damage to the Straker automobile.

We are of the view that the $5,000.00 award to Mrs. Straker, though conservative, is not subject to successful challenge. In Griffis v. Hill, Sup.Ct.Fla. 1969, 230 So.2d 143, the applicable rule was stated:

“The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict. This test is simply stated but may be difficult to apply in a particular case. We are aware of the difficulties and frustrations courts experience in the search for the mythical jury of reasonable men. The appellate court must be ever alert against the temptation to substitute its ‘verdict’ for that of the jury. On the other hand, we must not refuse to act to relieve the injustice of either a grossly inadequate or excessive verdict.” (230 So.2d at page 145)

However, as to Mr. Straker, the jury verdict is clearly inadequate. While a review of the testimony indicates that the medical witnesses were vague as to the causation of Mrs. Straker’s present condition, Mrs. Straker stated positively that the medical expenses for which compensation was sought were incurred as a result of the August, 1972 accident. (See Morris Kirschman and Company, Inc. v. Garrett, Fla.App. 1st 1975, 308 So.2d 575; Garrett v. Morris Kirschman and Company, Inc., Sup.Ct.Fla., 336 So.2d 566, opinion filed June 9, 1976.) That evidence was uncontradicted. Indeed, there was no other evidence on that point.

Appellees’ reliance on Haddock v. Robinson, Fla.App. 1st 1974, 289 So.2d 449 is misplaced. In that case this Court recognized the general rule in determining the adequacy of a verdict to be whether a jury of reasonable men could have returned that verdict, citing Griffis v. Hill, supra. Applying that general rule, the Court held that the facts in that case met “the reasonable man test” and sustained the jury award. The general rule, of course, must be applied according to the particular facts of the case under consideration. In the Haddock case, this Court significantly noted that the verdict was more than $1,000.00 in excess of the actual claimed medical expenses. Sub judice, as to Mr. Straker’s claim, such is not the case. The jury award to Mr. Straker barely amounts to one-third of the claimed medical expenses. That fact when coupled with the uncontradicted evidence that the medical expenses were caused by the subject accident forces us to conclude that the jury award to Mr. Straker was inadequate. We, therefore, reverse and remand for a new trial on the issue of damages as to Mr. Straker only.

Affirmed in part and reversed in part.

McCORD and MILLS, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    James H. WILLIAMS, Secretary of the Department of Administration of the State of Florida, Appellant, v. Floyd T. CHRISTIAN, Appellee.
    No. Z-454.
    District Court of Appeal of Florida, First District.
    July 14, 1976.

      Robert L. Shevin, Atty. Gen., Kenneth F. Hoffman, Asst. Atty. Gen., and L. Keith Pafford, Tallahassee, for appellant.
    Joseph C. Jacobs, Robert J. Angerer and E. C. Deeno Kitchen of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellee.
   RAWLS, Acting Chief Judge.

The central issue of this case is whether or not an adjudication of guilt under Section 838.06, Florida Statutes (1973), constitutes a finding of guilt of the offense of “bribery in connection with the employment” as contemplated by Section 121.-091(5)(f), Florida Statutes (1973). By its summary final judgment in favor of appel-lee (Christian), the trial court held, inter alia:

“ . . . unauthorized compensation for performance or nonperformance of duty) and adjudication of guilt therefor, does not constitute a finding of guilt as to ‘ . . . committing, aiding, or abetting . . . bribery . . . ’ as contemplated by Section 121.091(5)(f), Florida Statutes (1973), and, accordingly, does not serve to invoke the provision of the statute last cited requiring a forfeiture of all retirement rights and benefits granted plaintiff [Christian] under Chapter 121, Florida Statutes . . ..”

We agree and affirm.

Appellee Christian has been a member of various state retirement plans since their inception in 1941. The following facts are extracted from an affidavit executed by T. Edward Austin, assigned State Attorney: In 1974, the Leon County Grand Jury returned several indictments setting forth some 19 counts which had been prepared and submitted by T. Edward Austin, assigned State Attorney. Two of the counts charged Christian with the crime of bribery pursuant to Section 838.012, Florida Statutes (1973), and one count with the crime of receiving unlawful compensation pursuant to Section 838.06, Florida Statutes (1973). All nineteen counts were dismissed as a result of the decisions of the Supreme Court in Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975), and Rudd v. State ex rel. Christian, 310 So.2d 295 (Fla.1975). Subsequently, Austin filed direct informa-tions in nine counts which included a count of bribery and a count of receiving unlawful compensation. As a result of plea bargaining engaged in between Christian and the state, it was agreed that Christian would enter a plea of nolo contendere to three counts, including the count involving receiving unlawful compensation, and that the remaining six counts, including the count involving bribery, would not be refiled. During the plea negotiations, both parties agreed and proceeded on the premise that the only plausible construction of Section 121.091(5)(f), Florida Statutes, would provide that the plea of nolo conten-dere to acceptance of unlawful compensation would not jeopardize Christian’s retirement benefits.

The elements of the offense of bribery are as follows: 1) knowledge on the part of the accused of the official capacity of the person to whom the bribe is offered, 2) the offering of a thing of value, and 3) the intent to influence the official action of the person to whom the bribe is offered. The offense of bribery as punished in this state applied to the one who corruptly offers, gives, or receives anything of value to influence the receiver’s action. Section 7486, while infected with the element of bribery, is much broader in scope than bribery statutes. It reaches only the acceptor of the bribe, but it also includes the crime of extortion and affects the officer if he accepts a bribe for the performance or nonperformance, or violation of any act, rule or regulation that he may be called on to perform.

Appellant relies primarily upon isolated extracts from our opinion in Smith v. State to sustain his contention that Section 838.06, F.S. (1973), constitutes bribery as contemplated by the legislature in enacting Section 121.091(5)(f), F.S. (1973). Smith involved the prosecution of a Jacksonville City Councilman for acceptance of a bribe as denounced in Section 838.012, F.S. This court observed that the evidence was not sufficient to make out “bribery” but would have supported a conviction under Section 838.06, F.S. We specifically observed in Smith that “the testimony of the State’s witness may have substantially proved the violation of F.S. 838.06 . . . which has a broader scope in bribery than 838.012 . .” As quoted by appellant, the Smith opinion does state that the “two statutes in question are dealing with the same offenses, the offenses of bribery — acceptance of bribes by public officers, as provided in Section 838.012, and the taking of unauthorized compensation for performance or nonperformance of duties by public officers as provided in Florida Statutes Section 838.06”. The language, although loosely used, clearly recognizes “two offenses”; that is, “bribery” and the “broader in scope than bribery” of acceptance of unauthorized compensation. Had not we recognized such distinctions, the Smith judgment would have been affirmed instead of reversed. Appellant would have this court judicially enact two bribery statutes, while the legislature, which is presumed to know existing statutes and case law construing them, provided one bribery statute and one separate and distinct statute proscribing acceptance of unlawful compensation.

The legislature, in providing for forfeiture of pension benefits in Section 121.091(5)(f) in 1973, clearly intended that “bribery” would be applied in those cases where a “corrupt motive” and an “intent to influence an official act” were alleged and proved. The state had charged Christian in the instant case with such conduct. It agreed to plea bargain and in such bargain nolle prossed the bribery charge against Christian. Section 838.06, F.S. (1973), does not clearly require a forfeiture of Christian’s retirement benefits. This construction is buttressed by the affidavit of T. Edward Austin, one of Florida’s most distinguished state attorneys, as well as by the subsequent legislative amendments to the two statutes here involved.

No citation of authority is required to support the rule that forfeitures are not favored in law. They are considered harsh exactions, odious, and to be avoided when possible. Statutes imposing forfeiture will be strictly construed in a manner such as to avoid the forfeiture and will be liberally construed so as to avoid and relieve from forfeiture.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Florida Statute 838.06 (1973) provides:
      “Unlawful for officers to accept unauthorized compensation for performance or nonperformance of duty. It is unlawful for any public officer, agent, servant or employee to request, solicit, exact or accept any reward, compensation, or other remuneration, other than those provided by law, from any person whatsoever for the past, present or future performance, nonperformance or violation of any act, rule or ’ regulation that may be or may have been incumbent upon such public officer, agent, servant or employee to administer, respect, perform, execute or have executed; provided that nothing herein shall be construed so as to preclude a sheriff, deputy sheriff, constable, deputy constable, city marshal or policeman from accepting rewards or remuneration for services performed in apprehending any criminal.” Amended in 1974 (Ch. 74-383, Laws of Florida) specifically modifying the proscribed acts with the word “corruptly”. Now Section 838.016, Florida Statutes (1975).

      . Florida Statute 121.091(5)(f) (1973) provides: “Any member who is found guilty in a court of competent jurisdiction of committing, aiding, or abetting any embezzlement or theft from his employer or bribery in connection the employment, committed prior to retirement, or any member whose employment is terminated by reason of his admitted commitment, aiding or abetting of an embezzlement or theft from his employer or such bribery shall forfeit all rights and benefits under this chapter except the return of his accumulated contributions as of his date of termination.”
      Amended in 1975 providing forfeiture of retirement benefits by any member found guilty of any felony specified by Chapter 838, Florida Statutes. Chapter 75-86, Laws of Florida.

      . Austin also stated in his affidavit:
      “Thus, while I plainly had no authority to bind the State retirement system and made no representations at any time that I could or would personally insure that FLOYD T. CHRISTIAN would receive his pension benefits, such a result was impliedly assured by our mutual good faith construction of Section 121.09[l](5)(f), F.S. [1973]”

      . Nell v. State, 277 So.2d 1 (Fla. 1973).

      . Predecessor of Section 838.06, F.S. (1973).

      . Richards v. State, 144 Fla. 177, 197 So. 772 (1940).

      . Smith v. State, 253 So.2d 465 (1 Fla.App. 1971).

      . Tamiami Trail Tours v. Lee, 142 Fla. 68, 194 So. 305 (1940).

      . In State v. Greene, 247 So.2d 102 (3 Fla.App. 1971), the Third District Court of Appeal correctly observed: “This statute [838.06] is not the typical bribery statute . . .

      . See notes (1) and (2) supra.

      . Ireland v. Thomas, 324 So.2d 146 (1 Fla.App. 1975); 37 C.J.S. Forfeitures § 4.b.


text:
    Horace Oliver RUCKER, Appellant, v. The STATE of Florida, Appellee.
    No. 73-1252.
    District Court of Appeal of Florida, Third District.
    July 16, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer and Elliot H. Scherker, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

This cause recurs for consideration upon the mandate of the Supreme Court of Florida pursuant to the opinion and judgment of that court filed April 7,1976 (330 So.2d 470) vacating the judgment of this court in this cause entered on November 26, 1974, 307 So.2d 830.

In accord with the directive of the judgment of the Supreme Court of Florida this court’s mandate heretofore issued in this cause on February 21, 1975 is withdrawn, this court’s judgment filed November 26, 1974 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court as to appellant’s Point I.

After a careful consideration of the appellant’s remaining two points on appeal, we find no reversible error has been made to appear. Accordingly, the judgment of conviction and sentence is affirmed.


text:
    Margaret A. PANTUSO, Appellant, v. Andrew P. PANTUSO, Appellee.
    No. 75-1549.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.

      John M. Mankin of Hill, Hill & Dicken-son, Tampa, for appellant.
    Roland F. Cribbs, Tampa, for appellee.
   PER CURIAM.

Plaintiff-appellant wife raises one meritorious point on appeal from the final judgment of dissolution of marriage: that relating to the denial by the trial court of her prayer for partition of certain jointly owned parcels of real estate. We agree with her and reverse that part of the judgment.

It undisputedly appears that the wife’s amended complaint requesting partition contained the necessary allegations and notice as required by § 64.041, F.S.1975, relating to partition. Further, defendant-appel-lee husband did not contest the prayer for partition at trial nor does he on this appeal. Under the facts presented, therefore, the partition should have been granted.

In view whereof, the judgment appealed from insofar as it denies plaintiff-appellant’s prayer for partition should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith. In all other respects the judgment appealed from is affirmed.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.

      . See Rankin v. Rankin (Fla.App.2d, 1972), 258 So.2d 489.


text:
    ASSOCIATED HOUSING CORPORATION, Appellant, v. KELLER BUILDING PRODUCTS OF JACKSONVILLE, INC., etc., Appellee.
    No. AA-37.
    District Court of Appeal of Florida, First District.
    July 19, 1976.

      Edward C. Tietig, Miami, for appellant.
    Philip C. Owen, Jacksonville, for appellee.
   BOYER, Chief Judge.

After striking affirmative defenses filed by defendants, appellants here, a summary final judgment was entered in favor of plaintiff, appellee here. This appeal followed.

By amended complaint, Keller sought to recover for goods sold to Associated. The individual defendants were joined as guarantors. The complaint alleged, inter alia, that goods were sold to Associated and that as an inducement to Keller to sell such goods on credit the guarantors (the individual defendants, and appellants here) jointly and severally executed a written guaranty, a copy of which was attached. The defendants’ answer admitted the sale, the guaranty and that the guaranty was an inducement to Keller to sell the goods on credit. It also, as amended, alleged five affirmative defenses. The trial court, on motion, struck the affirmative defenses and entered summary judgment for Keller.

We have examined the record and find that if the affirmative defenses were properly stricken then the summary judgment was appropriate. If, on the other hand, striking the defenses was error then there were unresolved issues of material fact rendering entry of summary judgment error. (Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194)

Three of the alleged affirmative defenses (the first, third, and fifth) contained no legal (nor equitable) defensive matter. They were properly stricken and no useful purpose will be served by discussing them here.

Judith Stewart, Gretchen Glantz and Norma R. Poole, wives of the three male individual defendants, affirmatively alleged in the second affirmative defense that their guarantys were obtained “through the economic duress of the plaintiff and/or through the personal duress of their spouses * * * all of which the plaintiff well knew beforehand.” While the claimed “economic duress”, as alleged, was properly stricken, the allegation of personal duress was a proper defense and should not have been stricken. It matters not from whom the duress emanates, if an instrument is signed under duress and known to have been so induced by the party in whose favor it redounds then duress is a proper defense to an action on that instrument. Whether there was in fact duress, and if there was whether it was known to the plaintiff, are matters of fact which were not negated by affidavit nor otherwise; therefore as to the three defendants last above named that affirmative defense was improperly stricken and the summary judgment improvidently entered.

In their fourth affirmative defense the defendants alleged that the goods sold by Keller to Associated were “building materials of a general nature” to which Keller “had a special right and title * * * until paid” and that “if the plaintiff had exercised those rights, the materials could have been retaken and resold * * * with only minor loss of transportation, interest, overhead, etc. That * * * defendants informed Keller of the facts and requested that they enter upon the property and remove those building materials which Keller failed and/or refused to do.” Thus, the defendants claimed, Keller failed to mitigate its damages.

Copies of the invoices which are in the record reveal that each contains a provision that: “Title to materials delivered and/or installed pursuant to this order shall remain in the name of Keller Building Products, Inc., until same is paid in full, * * * ”,

Although titled, “Estoppel, Lach-es, Release and Waiver,” defendants’ fourth affirmative defense essentially alleged the doctrine of mitigation of damages or avoidable consequences. “This doctrine states that a party cannot recover damages flowing from consequences which that party could reasonably have avoided.” 9A Fla. Jur. 250, “Damage”, § 23. There is no indication that defendant waived the doctrine by word or deed. In Florida a contractor has a duty to take reasonable action to mitigate damages. (Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669 (5th Cir. 1963), cert. den. 377 U.S. 909, 84 S.Ct. 1169, 12 L.Ed.2d 178 (1964)) It follows that the fourth defense should not have been stricken. That defense raises a material issue of fact as to whether plaintiff failed to mitigate its damages. An issue to be resolved at trial is whether plaintiff should have pursued its remedy under F.S. 713.15 as part of its duty to mitigate damages.

The summary judgment should not have been entered.

Reversed and remanded for further proceedings consistent herewith.

McCORD, J., and SCHLEGEL, LEW, Associate Judge, concur.

      . F.S. 713.15 provides, in pertinent part:
      “If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the improvement which have not been incorporated therein and for which he has not received payment may peaceably repossess and remove such materials or replevy the same and thereupon he shall have no lien on the real property or improvements and no right against any persons for the price thereof, but shall have the same rights in regard to the materials as if he had never parted with their possession.”


author: PER CURIAM. DOWNEY, Judge

text:
    Clarence COLEMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-974.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.

      Richard L. Jorandby, Public Defender, Frank B. Kessler and Paul Herman, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Appellant-defendant, Clarence Coleman, Jr., appeals a judgment adjudging him guilty and imposition of sentence for the offense of robbery. We reverse.

Appellant was charged by information with the robbery of one Kenneth James Hanna. Trial was by jury. The jury returned a verdict finding appellant guilty of the robbery charged. The trial court entered judgment accordingly and imposed sentence. It is from this judgment and sentence that the appellant takes his appeal.

On appeal appellant contends that the trial court committed reversible error in admitting testimony of Kenneth James Hanna to the effect he, Kenneth James Hanna, had been offered one hundred dollars not to testify against appellant at trial. We must agree. Such testimony was not only hearsay but was totally immaterial to the issue at trial, viz., did the appellant rob Kenneth James Hanna. The only purpose that the testimony could have served was to create prejudice in the minds of the jury based on the suggestion that appellant himself offered or appellant procured a third person to offer Kenneth James Hanna one hundred dollars not to testify against him (appellant) at trial.

Accordingly, the judgment and sentence herein appealed is reversed and the cause is remanded for new trial.

Reversed and remanded, with directions.

CROSS, J., and WEAVER, SIDNEY M., Associate Judge, concur.

DOWNEY, J., specially concurs, with opinion.

DOWNEY, Judge

(concurring specially).

In my judgment the appellant is entitled to a new trial because the circuit court should have granted appellant’s motion for a mistrial after Kenneth Hanna, the purported robbery victim, testified that someone other than appellant — not acting with appellant’s knowledge — offered him $100 to not testify in the case. That testimony was inadmissible hearsay, and I therefore concur in the decision to reverse.

I would also point out that the circuit court should have granted appellant’s motion to strike the unresponsive testimony of Carl Lord, a polygraph operator, that appellant had been convicted of a narcotics charge in 1974.


text:
    Norman E. PELLERIN, Petitioner, v. FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, Respondent.
    No. 76-136.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.

      Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for petitioner.
    Howard Hadley and Vaughan David Hulse, Winter Park, for respondent-Florida Real Estate Commission.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and James R. Parks, Miami, for statutory respondent-Florida Dept, of Commerce Division of Employment Security.
   PER CURIAM.

Petitioner, Norman E. Pellerin, petitions this court for a writ of certiorari to review an order of the Florida Industrial Relations Commission disqualifying petitioner from unemployment compensation benefits.

On February 18, 1975 petitioner, Norman E. Pellerin, Was discharged from his employment as a Real Estate Investigator I with respondent, Florida Real Estate Commission. The reason given by respondent for petitioner’s discharge was that petitioner had not reached the level of performance required for his position.

Petitioner filed his claim for unemployment compensation benefits with the Florida Bureau of Unemployment Compensation. The bureau’s claims examiner determined that the petitioner was discharged from his employment due to unsatisfactory work performance, not for misconduct connected with his work, which would by law disqualify him from unemployment compensation benefits. The claims examiner, therefore, granted petitioner’s claim. Respondent filed an appeal with the Florida Unemployment Compensation Appeals Tribunal. An evidentiary hearing was held. The appeals referee entered a decision affirming the determination of the claims examiner. This decision was appealed by respondent to the Florida Industrial Relations Commission. The Industrial Relations Commission determined that the record did not support the decision of the appeals referee, and entered an order reversing said decision and disqualifying petitioner from unemployment compensation benefits. It is from this order that petitioner petitions for a writ of certiorari.

Upon review of the transcript of the record and after consideration of the briefs submitted by counsel for the respective parties, we determine that there existed competent substantial evidence to support the decision of the appeals referee. Therefore, the Florida Industrial Relations Commission erred in entering its order reversing said decision and disqualifying the petitioner from unemployment compensation benefits.

Accordingly, certiorari is granted and the order of the Florida Industrial Relations Commission is quashed, and the cause remanded to the Florida Industrial Relations Commission to reinstate the decision of the Florida Unemployment Compensation Appeals Tribunal.

Certiorari granted, with directions.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


text:
    Billy PITTS, Appellant, v. STATE of Florida, Appellee.
    No. Y-166.
    District Court of Appeal of Florida, First District.
    July 27, 1976.
    Brooks Taylor, Crestview, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   ENGLAND, ARTHUR J., Jr., Associate Judge.

This case is before us to determine whether the Circuit Court of the Fourteenth Judicial Circuit (Washington County) erred in denying a motion to suppress a confession made by the appellant during a custodial interrogation.

Appellant argues that the interrogating officers failed to apprise him of his right to have counsel present during questioning, that he was incapable of knowingly and voluntarily waiving his right to remain silent, and that the trial judge failed to make a clear finding that his confession was voluntarily given.

We find it unnecessary to resolve the first two issues raised by appellant since it is clear that the trial court erred in failing to make a specific finding of voluntariness as required by the Florida Supreme Court. McDole v. State, 283 So.2d 553 (Fla.1973). As in McDole, there was contradictory direct and medical evidence presented by the police, and by the defendant, as to voluntar-iness, and the trial judge’s ruling consists solely of the words “Motion will be denied.” The state argues, however, that this case is controlled by Trolinger v. State, 300 So.2d 310 (Fla. 2nd DCA 1974), cert. denied, 310 So.2d 740 (Fla.1975), and that in any event the original defect was rectified four days later when, in the course of the trial, the judge announced that it would not be necessary to inquire into the voluntariness of the confession out of the presence of the jury because the confession had been ruled voluntary at the suppression hearing.

Trolinger is not applicable here, In that case, the trial judge made express findings which were found adequate under the McDole standard. In this case the trial judge made no findings of voluntariness whatsoever when he ruled on the admissibility of the confession. As regards the judge’s comment during trial, which did not with particularity indicate why the confession had been given voluntarily, it is obvious that the mere reference to a legally deficient ruling could not undo the original error.

Appellant’s conviction and sentence are reversed, and this case is remanded for a new trial where the voluntariness of appellant’s confession can be properly determined.

McCORD, J., and LEE, THOMAS E., Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    Edward WIDE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1792.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.
    Jack 0. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant was charged by a one-count information with the single offense of armed robbery. He pled guilty to two lesser included offenses: (1) assault with intent to commit a felony, to wit: robbery, and (2) possession of a firearm while in the commission of a felony. The trial court accepted the plea, adjudged appellant guilty of both offenses, and sentenced him to serve 15 years in the state prison.

Due to the fact that the appellant was charged with the commission of only one offense, it was error for the trial court to adjudicate the appellate guilty of the second offense of possession of a firearm in the commission of a felony. However, even if one were to assume that the trial court did have such authority, the offenses arose out of a single transaction. Therefore, only one sentence would be appropriate pursuant to the holding in Cone v. State, Fla.1973, 28 So.2d 12.

Accordingly, all reference in the judgment and sentence to the offense of possession of a firearm in the commission of a felony must be stricken. Inasmuch as only one sentence of 15 years was actually imposed for the offense of assault with intent to commit robbery, and it was within the maximum sentence allowable under the applicable statute, it is left undisturbed.

As amended, the judgment and sentence are affirmed and the cause is remanded to the trial court with directions to correct the judgment and sentence consistent with this opinion.

AFFIRMED and REMANDED with directions.

McNULTY, C. J., and GRIMES, J., concur.


text:
    DADE COUNTY, etc., et al., Appellants, v. MARINE EXHIBITION CORP., a Florida Corporation, Appellee.
    No. 73-995.
    District Court of Appeal of Florida, Third District.
    July 16, 1976.
    Stuart L. Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for appellants.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Woodrow M. Melvin, Jr., Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered in this cause on June 25, 1974 (296 So.2d 652) affirming the summary final judgment of the Circuit Court for Dade County, Florida, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 7, 1976, 330 So.2d 459 and mandate now lodged in this court quashed this court’s judgment and remanded the cause for further proceedings;

IT IS ORDERED that the mandate of this court heretofore issued in this cause on July 11,1974 is withdrawn, the judgment of this court filed herein on June 25, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the summary final judgment of the circuit court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida as adopted by this court. Costs allowed shall be taxed in the trial court (Rule 3.16 b, F.A.R.).


author: RAWLS, Judge.

text:
    Simon PORTER et al., Appellants, v. James O. BUCK, Appellee.
    No. Y-257.
    District Court of Appeal of Florida, First District.
    July 26, 1976.

      Franklin Reinstine of Reinstine, Rein-stine, Panken & Oberdorfer, Jacksonville, for appellants.
    Edward McCarthy, Jr., of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellee.
   RAWLS, Judge.

Appellee-plaintiff Buck filed this suit to quiet title to Government Lots 1, 2, and 3, Section 3, Township 1 South, Range 28 East, Duval County, Florida Plaintiff deraigned his title by a uninterrupted chain which originated in Patent # 16 dated June 23, 1882, from the United States of America to the State of Florida, pursuant to the Swamp and Overflow Act of 1850.

Appellants-defendants filed an answer and counterclaimed to quiet title to the same lands. Defendants based their claim of title by an uninterrupted chain which originated in a United States of America Patent # 1181810 dated April 29,1958, pursuant to the provisions of Chapter 7, Title 32, Revised Statutes of the United States, and legislation supplemental thereto.

The sole issue before the trial court and now submitted to this court is whether Patent # 16, in conveying “[t]he whole of fractional sections . . . three”, conveyed the surveyed lots in Section 3 to the State of Florida. Defendants contend that Patent # 16 only conveyed the unsurveyed portion of Section 3 to the State of Florida. The trial court held, inter alia:

“The ‘Swamp Lands’ Act of 1850, and Patent No. 16, issued in 1882, effectively vested title to said Lots 1, 2, and 3 in the State of Florida, so that Patent Number 1181810 issued in 1958 was ineffective to vest any right or interest in said lots in Simon S. Porter.”

and quieted title to same in plaintiff.

Defendants, in arguing that the trial court failed to consider what the character of the subject land was on the date Patent # 16 was issued, reason that since the contested lots were surveyed in 1850 and established to be upland and cultivatable in character, title to same could not have vested in the State of Florida under the “Swamp Lands Act”. Their argument fails for several reasons. First, it is undisputed that surveyed Lots 1, 2, and 3 are a part of fractional Section 3. Second, the evidence is not undisputed that these lands were not swamp and overflow lands in the year 1850. Third, Patent # 16 recites that the lands described therein (the whole of fractional section three) had been selected as “ ‘Swamp and Overflowed Lands,’ inuring to the said State [Florida] under the act aforesaid [Swamps Lands]”. Fourth, the object of a United States curative statute has been construed to extinguish any right the government may have in the land and vest a perfect title in the adverse holder, after six years from date of the patent, regardless of any mistake or error in the land department or fraud or imposition of the patentee.

The United States of America, having in 1882 conveyed to the State of Florida the whole of fractional Section 3 “[t]o have and to hold ... in fee simple, and to its assigns forever”, was without any lawful authority some 76 years later, through the opinion of a federal functionary, to convey the same land. Defendants’ Patent # 1181810 is nothing more than a “wild deed”.

AFFIRMED.

BOYER, C. J., and MELVIN, WOODROW M., Associate Judge, concur.

      . Pertinent parts of Patent #16 provide:
      “WHEREAS, by the act of Congress approved September 28, 1850, entitled ‘An Act to enable the State of Arkansas and other States to reclaim the “Swamp Lands” within their limits,’ it is provided that all the ‘Swamp and Overflowed Lands,’ made unfit thereby for cultivation, within the State of Florida which remained unsold at the passage of said act, shall be granted to said State:
      “AND WHEREAS, in pursuance of instructions from the General Land Office of the United States, the several tracts or parcels of land hereinafter described have been selected as ‘Swamp and Overñowed Lands,’ inuring to the said State under the act aforesaid, situate in the District of Lands subject to sale of St. Augustine and Gainesville, Fla., to wit:

        “Township one (1) South Range twenty eight (28) East, the whole of fractional sections one, two, three. . . .

      “Now, therefore know ye, that the United States of America in consideration of the premises, and in conformity with the Act of Congress aforesaid, Have Given and Granted, and by these presents Do Give and Grant, unto the said State of Florida, in fee simple, subject to the disposal of the Legislature thereof, the tracts of land above described.
      “To have and to hold the same together with all the rights, privileges immunities, and appurtenances thereto belonging unto the said State of Florida, in fee simple, and to its assigns forever.” (Emphasis supplied.)

      . 43 U.S.C. § 1166 (1970) (Act of March 3, 1891).

      . United States v. Winona & St. Peter R. Co., 165 U.S. 463, 17 S.Ct. 368, 41 L.Ed. 789 (1897); see also Hogan v. United States, 72 F.2d 799 (9th Cir. 1934), cert. den., 295 U.S. 752, 55 S.Ct. 833, 79 L.Ed. 1696 (1935).


author: SMITH, Judge.

text:
    STATE of Florida, Appellant, v. Richard Byron DETLEFSON, Appellee.
    No. AA-321.
    District Court of Appeal of Florida, First District.
    July 27, 1976.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellant.

      Rudy Hernandez, Jacksonville, for appel-lee.
   SMITH, Judge.

The State appeals from an order suppressing drugs and drug paraphernalia seized pursuant to a warrant held insufficient by Fourth Amendment standards. We reverse.

The affidavit on which the warrant was issued recited that patrolman Fouty had observed two marijuana plants on the front porch of the specified dwelling house on September 30, 1975, after observing the plants “on the porch at certain times and not visible at certain times” for approximately two weeks. His attention was initially called to the plants by an informant whose reliability was not demonstrated and is not here relied on by the State. Patrolman Fouty’s testimony revealed that he entered the yard and front porch of the premises on suspicion derived from the informant’s tip and his own inconclusive identification from the street, and that he positively identified the growing marijuana only on approaching it closer.

The informer’s tip provided patrolman Fouty with only a suspicion that the growing material on appellant’s porch was marijuana. But that suspicion, coupled with his own observations, justified crossing the yard to look closer. The entry into the yard and onto the porch to identify suspected contraband plainly visible in less detail from the street did not violate Fourth Amendment standards. State v. Belcher, 317 So.2d 842 (Fla.App.2d, 1975); Boim v. State, 194 So.2d 313 (Fla.App.3d, 1967). It cannot be said the defendant had a reasonable expectation of privacy in the front porch of his home where, presumably, delivery men and others were free to observe the plants thereon. E. g., People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 (1969). See also State v. Clarke, 242 So.2d 791 (Fla.App.4th, 1971), cert. den. 246 So.2d 112 (Fla.1971). The officer’s identification of the marijuana at close range, together with his prior observation that the plants so identified were periodically removed from and returned to the porch, supplied an adequate basis for the issuance of a warrant. Cf. Howell v. State, 333 So.2d 491 (Fla.App.1st, 1976).

REVERSED.

BOYER, C. J., and MILLS, J., concur.

      . An affidavit otherwise sufficient is not tainted by reference to an inadequate tip by an informant. State v. Smith, 233 So.2d 396, 398 (Fla.1970).


text:
    OPINION OF THE JUSTICES.
    No. 224.
    Supreme Court of Alabama.
    July 6, 1976.
   Honorable George C. Wallace

Governor of Alabama

State Capitol

Montgomery, Alabama 36130

Dear Sir:

We acknowledge receipt of yours of 28 June 1976 that reads:

“The Honorable Chief Justice ánd Associate Justices of the Supreme Court of Alabama
Judicial Building
Montgomery, Alabama 36130
“Dear Sirs and Madam:
“Important constitutional questions have arisen concerning the validity of an amendment to the Constitution of Alabama of 1901 which was proposed in Act No. 921 enacted at the 1975 Kegular Session of the Legislature of Alabama and approved by the qualified electors of the State in an election held on January 13, 1976 (‘Act No. 921’). The amendment authorizes the State to issue and sell $15,-000,000 principal amount of general obligation bonds (‘the bonds’), the proceeds from the sale of which are to be utilized for the following purposes: $7,000,000 for the construction of security mental health facilities; $2,000,000 for the construction of a seed technology center and a seed processing facility; and $6,000,000 for the construction of prison rehabilation facilities. As a result of the constitutional questions raised concerning Act No. 921, the validity of the enabling legislation enacted as Act No. 1230 at the 1975 Regular Session of the Legislature of Alabama (‘Act No. 1230’), which act specifies the procedures to be followed in the sale and issuance of the Bonds, is also in issue.
“By the terms of Section 3 of Act No. 1230, the Director of Finance, the Chairman of the Alabama Mental Health Board and I, as Governor, are constituted a Bond Commission charged with the duty of establishing the terms of the Bonds and supervising their sale and issuance. Under the provisions of Act No. 1230, I am designated the chairman of the Bond Commission and it is to meet at my call. In the event the Bond Commission determines to issue the Bonds, under the terms of Act No. 1230,1, as Governor, will execute the Bonds in the name of the State. The purpose of this letter is to request you, pursuant to the provisions of Section 34 of Title 13 of the Code of Alabama of 1940 to furnish me with your written opinions on the constitutional questions presented in this request, so that I might be appropriately guided in taking the actions required of me by the aforesaid legislation.
“Constitutional questions presented. Your written opinions on the following import constitutional questions are respectfully requested:
“1. Did the submission of the aforesaid constitutional amendment to the electorate as a single proposition violate Section 284 of the Constitution of Alabama of 1901, as amended?
“2. Did the submission of the aforesaid constitutional amendment to the electorate as a single proposition violate Section 285 of the Constitution of Alabama of 1901?
“3. Was Act No. 921 adopted by the Legislature in violation of the requirement of Section 284 of the Constitution of Alabama of 1901, as amended that a bill proposing a constitutional amendment be read on ‘three several days’ in each house of the Legislature?
“4. Does Act No. 1230 violate the requirement of Section 45 of the Constitution of Alabama of 1901 that a law contain but one subject?
“5. Does Act No. 1230 violate the requirement of Section 61 of the Constitution of Alabama of 1901 that ‘no bill shall be so altered or amended on its passage through either house as to change its original purpose’?
“6. Was Act No. 1230 adopted by the Legislature in violation of the requirement of Section 63 of the Constitution of Alabama of 1901 that ‘every bill shall be read on three different days in each house’?
“Attached as an exhibit is a description of the proceedings of the Legislature regarding the adoption of Act No. 921 and Act No. 1230 as reflected in the Journals of the House and Senate for the 1975 Regular Session of the Legislature.
“Respecfully submitted,
“/s/ George C. Wallace
Governor”

Your questions are answered in the order propounded:

One and two are answered in the negative. The provisions of Section 284, as amended, and Section 285 of the Constitution of Alabama of 1901 do not prohibit submission to the electorate of a so-called dual proposition. See Brittain v. Benefield, 263 Ala. 171, 81 So.2d 667 (1955). Were there such a prohibition, the amendment under consideration would not violate it. The single proposition put before the electorate was whether the State of Alabama would become further indebted, for capital improvements and equipment, by amending its constitution to avoid prohibitions against further debt found in Section 213, as amended. The electorate was fully informed of the choice presented. In compliance with Section 284 the complete text of the proposed amendment was published four times, during the same number of weeks, in newspapers throughout the State. A conclusive presumption that the electorate was aware of the terms of the amendment was thereby created. Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917).

Assuming, as we must, that the ballots used in the referendum paraphrased or summarized the title of Act 921, there was compliance with Section 285. That Section requires the substance or subject matter of each proposed amendment to be printed upon ballots, used at elections per Section 284, so that the nature of the amendment be clearly indicated. The nature was clearly indicated by reference to the basic subject matter in the title, in these words:

“ * * * an amendment to the Constitution of Alabama authorizing the issuance of not exceeding a total of $15,-000,000 principal amount of General Obligation Bonds of the State of Alabama * * *7)

A general scheme was presented to the public for its decision, on .the basic inquiry, whether to authorize the State to become indebted to the extent of $15,000,000. Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703 (1908), Jones v. McDade, supra.

Three is answered in the negative. Was Act No. 921 read on “three several days” in each house of the Legislature as required by Section 284? Act 921 originated as House Bill 335. As introduced, it proposed a constitutional amendment authorizing issue and sale of General Obligation Bonds, in principal amount of $7,000,-000, to fund construction of security mental health facilities. It was twice read at length. It was amended by a substitute bill that raised the authorization to $9,000,000 and, in addition, provided that part of the money be used to construct a seed technology center and seed processing facility. That bill was read at length and passed by the House. It was sent to the Senate and read at length there twice. It was amended in the Senate to up the authorization to $15,000,000 and to provide that a portion of the additional proceeds from sale of bonds be used to construct prison rehabilitation facilities. The amended bill was read at length and passed by the Senate.

Were the amendments to the bill required to be read on “three several days” in each house in order to comply with Section 284? They were not.

“ * * * The proposed amendments [to the Constitution] shall be read in the house in which they originate on three several days * * * ”, commands Section 284.

There was substantial compliance with 284. Storrs v. Heck, 238 Ala. 196, 190 So. 78 (1939); See also Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1936). The central question in the proposed constitutional amendment, posed by original House Bill 335, was whether Alabama would incur debt. No amendment of that bill changed that question. Each of the three readings in the respective houses of the Legislature posed that question to those houses.

Four is answered in the negative. Section 45, Constitution of 1901, provides that: “ * * * Each law shall contain but one subject * * *.” The subject of the proposed amendment was debt, that of Act 1230 was the same. It was passed as “enabling legislation”, contingent upon adoption of the amendment, to implement the amendment. This court has held that Section 45 will not apply to invalidate Acts of the Legislature proposing amendments to the Constitution. Bonds v. State Department of Revenue, 254 Ala. 553, 49 So.2d 280 (1950). The general comprehensive scheme of both the Act and the Amendment being the same, the former to implement the latter, then there is but one subject of Act 1230. See Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973).

Five is answered in the negative. Was Act 1230 so altered or amended on its passage through either house [of the Legislature] as to change its original purpose? It was not. It originated as House Bill 334. Its purpose was to implement the proposed amendment. Its legislative history is, in all material respects, substantially identical to that of Act 921. Throughout the process of adoption the original purpose of 334 never changed, effecting the objectives for which debt was to be incurred. There was no violation of Section 61 of the Constitution when the amendments to 334 were adopted. This is true on the same rationale and supported by the same authorities as were employed in answer to question four.

Six is answered in the negative. The reasons are the same as those stated to support the answer to question three.

Respectfully submitted,

(s) Howell T. Heflin_ HOWELL T. HEFLIN Chief Justice

(s) James N. Bloodworth_ JAMES N. BLOODWORTH

(s) Hugh Maddox_ HUGH MADDOX

(s) James H. Faulkner_ JAMES H. FAULKNER

(s) Reneau P. Almon_ RENEAU P. ALMON

(s) Janie L. Shores_ JANIE L. SHORES

(s) Eric Embrv_ ERIC EMBRY

(s) Sam A. Beattv_ SAM A. BEATTY Associate Justices


text:
    OPINION OF THE JUSTICES.
    No. 223.
    Supreme Court of Alabama.
    June 30, 1976.
   To The Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama

Gentlemen:

We are in receipt of House Resolution No. 184, which reads as follows:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ALABAMA LEGISLATURE, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending bill H.B. 835, a copy of which is attached to this resolution and made a part hereof by reference:

1. Does H.B. 835 propose a general law within the meaning of Section 110 of the Alabama Constitution of 1901?

2. Does H.B. 835 authorize the incurring of a debt by the counties to which it applies in contravention of Section 224 of the Alabama Constitution of 1901?

3. Does H.B. 835 authorize the incurring of a debt by the cities to which it applies in contravention of Section 225 of the Alabama Constitution of 1901?

RESOLVED FURTHER, That the clerk of the House is hereby directed to send five true copies of the pending bill H.B. 835, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the justices of the Supreme Court forthwith upon adoption of this Resolution.

House.Bill No. 835 reads as follows:

A BILL . TO BE ENTITLED AN ACT

To authorize the county governing bodies of all counties having populations of not less than 75,000 nor more than 90,000, according to the most recent federal decennial census, and the governing body of any municipality in any such county to enter into long-term contracts for the disposal of solid waste, garbage, ashes and rubbish; to limit the term for which such contracts may be made; to prescribe certain stipulations that must be made in such contracts; and to declare that the entering of such contracts shall not constitute the incurring of a debt within the constitutional provision or statutory limitation on debts of the county and the municipality.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall apply to all counties in this state having populations of not less than 75,000 nor more than 90,000 according to the most recent federal decennial census, and to all municipalities within such counties.

Section 2. The governing body of any county to which this act applies or the governing body of any municipality in any such county, in lieu of or in addition to, maintaining a crematory for the destruction of garbage within its jurisdiction, may enter into a contract or contracts providing for the disposal of its solid waste, garbage, ashes and rubbish or any part thereof. The terms, provisions and conditions of the contract shall be such as the governing body deems appropriate and in the best interests of the city or county, as the case may be; and such contract may provide for the continuous disposal of such solid waste, garbage, ashes and rubbish from year to year, but not for more than twenty years. Any contract entered into by the governing body of a city or the county under authority of this act shall stipulate that any waste disposal system used by the contractor shall comply fully with regulations of the federal environmental protection agency and with rules and regulations of the state air and water pollution control agencies.

Section 3. Any cost to the county or a city under any contract entered into under authority of this act shall be paid annually out of the general operating funds of the county or city, as the case may be, and the entering of such contracts shall not constitute the incurring of a debt by such county or city within the state constitutional provision or statutory limitation on debts of the county or municipality.

Section 4. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

Section 5. This act is supplemental. It shall be construed in pari materia with other laws relative to the disposal of solid waste; however, any law or part of law which conflicts with this act is hereby repealed.

Section 6. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Question One: Does H.B. 835 propose a general law within the meaning of Section 110 of the Alabama Constitution of 1901?

It is the opinion of this court that this question should be answered in the negative in that the bill as written is a local law.

Section 110 of the Alabama Constitution of 1901 provides in pertinent part:

“A general law within the meaning of this article is a law which applies to the whole state; a local law is a law which applies to any political subdivision or subdivision of the state less than the whole

This court has addressed the question of whether a law which is based upon a population classification qualifies as a general law numerous times. See, e. g., Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973); Opinion of the Justices, 284 Ala. 626, 227 So.2d 396 (1969); Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968); Opinion of the Justices, No. 190, 281 Ala. 50, 198 So.2d 778 (1967); Opinion of the Justices, 275 Ala. 465, 156 So.2d 151 (1963).

Even when a law in its application applies to only one political subdivision it has been found to be a general law when the following test has been met: 1) The difference in population is substantial; 2) The classification is made in good faith by the Legislature; 3) The classification is reasonably related to the purpose sought to be achieved by the Act. Reynolds v. Collier, 204 Ala. 38, 39, 85 So. 465, 467 (1920). Applied in Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973); Opinion of the Justices, 284 Ala. 626, 226 So.2d 396 (1969); Birmingham v. Moore, 248 Ala. 422, 27 So.2d 869 (1946).

In the case of Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968) this court refined the application of this test by stating:

“We have held that even though an act, when passed, applies to one city only, this is not the test of whether it is a local or general law. If it will apply to all other cities as they come within the class based on population, the law is general * * * ” (Emphasis added.)

This requirement also applies to acts classifying counties by population.

The proposed bill under consideration ,contains the following language:

“This act shall apply to all counties in this state having populations of not less than 75,000 nor more than 90,000 according to the most recent federal decennial census * * * ” (Emphasis added.)

This court takes judicial notice of the fact that the most recent federal decennial census (1970) lists only one county in the State of Alabama with a population between 75,-000 and 90,000 — Morgan County with a population of 77,297.

Because this bill would not be applicable to other counties and municipalities as they come within the population classification, the test of Brittain is not met. Ordinarily the language used to satisfy the requirement of Brittain is “according to the latest and any subsequent federal decennial census.” Therefore, this bill, as presently drafted, must be construed to be a local bill within the meaning of Section 110 of the Alabama Constitution of 1901.

Questions 2 and 3 will be discussed together in that they involve the same questions of constitutional construction.

Question Two: Does H.B. 835 authorize the incurring of a debt by the counties to which it applies in contravention of Section 224 of the Alabama Constitution of 1901?

We answer in the negative.

Question Three: Does H.B. 835 authorize the incurring of a debt by the cities to which it applies in contravention of Section 225 of the Alabama Constitution of 1901?

We answer in the negative.

Section 224, as amended, provides:

“No county shall become indebted in an amount including present indebtedness, greater than five percentum of the assessed value of the property therein. Nothing herein contained shall prevent any county from issuing bonds, or other obligations; to fund or refund any indebtedness now existing or authorized by existing law to be created.” Ala.Const. Art. 12, § 224, Act No. 918, 1975 Acts of Ala. Vol. III, 1824 (Ratified January 22, 1976).

Section 225, as amended, provides:

“No city, town or other municipal corporation having a population of less than six thousand, except as hereafter provided, shall become indebted in an amount, including present indebtedness, exceeding twenty per centum of the assessed value of the property therein, except for the construction of or purchase of waterworks, gas or electric lighting plants, or sewerage, or for the improvements of streets, for which purposes an additional indebtedness not exceeding three per cen-tum may be created; provided, this limitation shall not affect any debt now authorized by law to be created, nor any temporary loans to be paid within one year, made in anticipation of the collection of taxes, not exceeding one fourth of the annual revenues of such city or town. All towns and cities having a population of six thousand or more are hereby authorized to become indebted in an amount, including present indebtedness, not exceeding twenty per centum of the assessed valuation of the property therein, provided that there shall not be included in the limitation of the indebtedness of such last described cities and towns the following classes of indebtedness, to-wit: Temporary loans, to be paid within one year, made in anticipation of the collection of taxes and not exceeding one fourth of the general revenues, bonds, or other obligations already issued, or which may hereafter be issued for the purpose of acquiring, providing, or constructing school houses, waterworks, and sewers; and obligations incurred and bonds issued for street or sidewalk improvements, where the cost of the same, in whole or in part, is to be assessed against the property abutting said improvements; provided, that the proceeds of all obligations issued as herein provided in excess of said twenty per centum shall not be used for any purpose other than that for which said obligations were issued. Nothing contained in this article shall prevent the funding or refunding of valid obligations existing at the time of such funding or refunding. This section shall not apply to the cities of Sheffield and Tuscumbia.
“The limitations specified in this section shall not be applicable to any obligations or indebtedness that may be exempted from the said limitations by the provisions of any portion of this Constitution, including any amendment thereto at any time adopted.” Ala.Const. Art. 12, § 225, Amend. No. 268 (Cum.Supp.1973).

The incurring of a contractual obligation by a city or county under a contract with private individuals for disposal of solid waste for a period of from one year to twenty years is not an indebtedness as defined under Section 224 and 225 of the Alabama Constitution of 1901 provided the annual amount payable under the contract is to be derived from the current revenues received for that year. Hillard v. Mobile, 253 Ala. 676, 47 So.2d 162 (1950); Abrasley v. Jefferson County, 241 Ala. 660, 4 So.2d 153 (1941); Brown v. Gay-Padgett Hardware Co., 188 Ala. 423, 66 So. 161 (1914).

The proposed bill provides that the cost of a contract entered into under its authority “shall be paid annually out of the general operating funds of the county or city.” This proviso satisfies the requirement that such an obligation will be payable out of current revenues and thus such an obligation will not be considered a debt within the meaning of Sections 224 and 225 of the Alabama Constitution of 1901.

Respectfully submitted,

(s) Howell Heflin_ Howell Heflin, Chief Justice

(s) James N. Bloodworth_ James N. Bloodworth

(s) Hugh Maddox_ Hugh Maddox

(s) James H. Faulkner_ James H. Faulkner

(s) Reneau P. Almon_ Reneau P. Almon

(s) Janie L. Shores_ Janie L. Shores

(s) Eric Embrv_ Eric T. Embry

(s) Sam A. Beatty_ Sam A. Beatty Associate Justices


author: BLOODWORTH, Justice.

text:
    Ida L. Waters HINESLEY et al. v. E. DAVIDSON, etc.
    SC 1605.
    Supreme Court of Alabama.
    July 9, 1976.
    Rehearing Denied Aug. 6, 1976.

      Bert S. Nettles, Mobile, for appellants.
    J. B. Blackburn, Bay Minette, for E. Davidson.
   BLOODWORTH, Justice.

This is an appeal from a dismissal for failure to state a claim upon which relief can be granted under Rule 12(b)(6), ARCP. We reverse and remand.

The nature of this action and the identity of the parties can best be stated by summarizing the plaintiffs’ complaint. Plaintiffs allege the following. Stanley M. Waters died in 1936 leaving certain acreage in Baldwin County to his wife for life and on her death to his children, who, with the exception of the oldest child, are plaintiffs in this action. (The wife is still living and, with the oldest child, is a defendant.) When Waters died, the land was subject to certain mortgages and a vendor’s lien, all of which were assigned to defendant E. Davidson and H. L. Taylor, (now. deceased) in February, 1941. Davidson and Taylor “were acting together as a partnership.” Waters’ wife, the life tenant, and his oldest child, one of ten remaindermen, executed a written instrument in 1941 purporting to convey the fee simple title to the land to Davidson and Taylor. (Apparently, this instrument was never recorded.) That instrument is void insofar as it purports to convey the fee simple title to the land, to which the transferors did not have the fee simple title. In February, 1941, Davidson and Taylor took possession and control of the land, but they never foreclosed under the mortgages and lien assigned to them. Taylor and defendant Davidson received the income from the land and removed timber and buildings from the land. Less than $3,500 was owed on the debts secured by the mortgages and the lien at the time that Davidson and Taylor took possession of the land. Davidson and Taylor (now deceased) have paid the taxes on said lands since taking possession thereof.

Plaintiffs seek the following relief: an accounting of “all the property, real, personal and mixed, belonging to Stanley M. Waters, deceased, or his estate, which has come into the possession” of Davidson and Taylor; an accounting of all income from the property; credit to Davidson and the partnership for amounts owed under the mortgages and the lien; payment to plaintiffs of any amounts that Davidson or the partnership “received in derogation of the rights of” plaintiffs, in excess of amounts owed on mortgages and lien, and satisfaction of mortgages and lien; cancellation of the instrument executed by the life tenant and one of the remaindermen; and, a declaration of the respective rights of the parties “in and to the property, real, personal and mixed, of the said Stanley M. Waters, deceased . . ..”

Defendant Davidson moved for dismissal on the following grounds: failure to state a claim upon which relief can be granted; laches; ten-year statute of limitations; prescription or the twenty-year statute of limitations; failure to join indispensable parties, viz, those who claim through H. L. Taylor; and res judicata as to those who claim through H. L. Taylor. (A previous action against Taylor and Davidson was dismissed because Taylor died while the action was pending and plaintiffs failed to revive the action within one year after his death. The dismissal was without prejudice to Davidson. The complaint in that case did not state that the action was against Davidson and Taylor as a partnership.)

The trial court found that “[plaintiffs’ alleged cause of action is barred by the doctrine of prescription or the twenty-year statute of limitations.” The court dismissed the action with prejudice and stated that it was not necessary to rule on the other points raised by defendant’s motion to dismiss. We hold that the trial court’s dismissal was erroneous. We reverse and remand.

I.

Neither prescription, the ten-year statute of limitations on actions to recover possession of lands, Tit. 7, § 20, Code of Alabama of 1940 (Recompiled 1958), nor laches affords any reason for dismissal of this action. As remaindermen, plaintiffs have no right to possession until the death of the life tenant. Consequently, there can be no possession adverse to them. Having no right to possession, they have no right to maintain an action for possession of the lands; thus, the statute of limitations cannot run against them. The rules of law applicable to these issues are well stated in Hammond v. Shipp, 292 Ala. 113, 119, 289 So.2d 802, 807 (1974):

“Finally, we come to the questions of adverse possession, prescription and lach-es. The rule is firmly established in this State that until the termination of the life estate the remaindermen have no right of action to recover possession of the land. The statute of limitations never runs against the remaindermen during the existence of the life estate for the reason that no cause or compelling right of action is in them, nor can there be any adverse possession to the remaindermen. Pickett v. Doe, 74 Ala. 122 (1883); Bolen v. Hoven, 143 Ala. 652, 39 So. 379 (1904); Dallas Compress Co. v. Smith, 190 Ala. 423, 67 So. 289 (1914); Bishop v. Johnson, [242 Ala. 551, 7 So.2d 281] supra; Head v. Taylor, 272 Ala. 241, 130 So.2d 4 (1961); Monte v. Montalbano, 274 Ala. 6, 145 So.2d 197 (1963). . . . The twenty year period of prescription does not begin to run until the death of the life tenant. Huey, [Huey v. Brock, 207 Ala. 175, 92 So. 904] supra; Kyser v. McGlinn, [207 Ala. 82, 92 So. 13] supra. Therefore, prescription is not applicable in this case.”

That plaintiffs’ interest is a remainder in the equity of redemption rather than in the legal title makes no difference. Even if plaintiffs had redeemed by paying off the mortgages and the lien, they would still have had no right to possession during the life of the life tenant.

For laches to run, plaintiffs must have, inter alia, failed to do something that equity requires persons in their position to do. What did plaintiffs here not do that they should have done? According to Hammond v. Shipp, supra at 119, 289 So.2d at 808, they were under no duty to bring an action to remove a cloud on their remainder:

“. . . And, while the remainder-man may maintain an action to remove a cloud on his reversion during the penden-cy of the life estate, he is under no duty to do so and cannot be guilty of laches if he does not do so. Huey v. Brock, 207 Ala. 175, 92 So. 904, cert. denied 259 U.S. 581, 42 S.Ct. 585, 66 L.Ed. 1074 (1922).

Defendant seems to argue that plaintiffs should have attempted to enforce their equity of redemption sooner. He quotes Charles B. Teasley, Inc. v. Dreyfus, 252 Ala. 41, 46, 39 So.2d 377, 380 (1949):

“Long delay of a mortgagor or his assigns to exercise the equity of redemption — for ten years or more — the mortgagee or his assigns being in adverse continuous possession is a complete bar to the right. Dixon v. Hayes, 171 Ala. 498, 55 So. 164; Richter v. Noll, 128 Ala. 198, 30 So. 740.”

In light of what we have said above, this quotation itself answers defendant’s contention: the right is barred by long delay where there is adverse possession. Since plaintiffs here have never had a right to possession, possession by defendant cannot be adverse to them, so far as the complaint shows.

Defendant also cites W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 66 So.2d 77 (1953), for his contention that plaintiffs’ action is barred by laches. That case was a suit by children of a deceased mortgagor, as remaindermen, to set aside a 1935 foreclosure of a mortgage on lands and to cancel the foreclosure deed issued in 1935 as a cloud upon title, on the ground of fraud. This Court held that the suit was barred by laches, even though the life estate was still outstanding. Smith is almost on “all fours” with the present case. However, there is one crucial difference. In Smith there had been a foreclosure, which, if valid, would have cut off the remainder-men’s equity of redemption and, even if invalid, gave the appearance of cutting off the equity of redemption. Here, there was no foreclosure; there was merely a deed, which, even if valid as to the interests of those who were parties to it, could not under any circumstances affect the interest of the remaindermen not parties to it and would not give any appearance of doing so. It is sound to require a timely challenge by remaindermen of a judicial action which, if valid, cuts off their interest and, if invalid, gives the appearance of cutting off their interest, but this policy provides no basis for requiring remaindermen ever to challenge an action which, even if valid, cannot affect their interest. This case presents no rationale for holding that plaintiffs in this case are barred by laches from enforcing their equity of redemption or from seeking the relief which they actually request.

II.

Defendant Davidson also argues that plaintiffs’ complaint should have been dismissed for failure to join necessary and indispensable parties, under Rules 12(b)(7) and 19, ARCP. The parties who defendant alleges should be joined are those who claim an interest in the land through the late H. L. Taylor. Defendant further alleges that those parties cannot be joined because an earlier action by plaintiffs stating the same claim against Taylor and Davidson was abated as to Taylor because of plaintiffs’ failure to revive the action after Taylor’s death.

Plaintiffs allege that Davidson and Taylor were acting together as a partnership when they were assigned the mortgages and the lien and when they later took possession of the land. However, plaintiffs have not named the partnership as a defendant. Only E. Davidson, “individually and as a partner in the partnership of E. Davidson and H. L. Taylor,” has been named as a defendant. If we assume for the sake of argument that plaintiffs have failed to join indispensable parties, dismissal of the action on this ground would be premature, since, under Rule 15(a), ARCP, “[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . .” It does not appear from the record that plaintiffs have yet attempted to amend their pleading. Nor does it appear that any responsive pleading has been served. Consequently, plaintiffs may still amend their complaint so as to join the allegedly indispensable parties, should they be so advised.

It should be pointed out that the effect of the abatement of the earlier action as to Taylor upon plaintiffs’ right to proceed against the partnership or even against those claiming under Taylor is not before us since plaintiffs have not yet attempted to join such parties.

REVERSED AND REMANDED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.

      . Neither of these parties interposed any defense in the trial court nor is either one a party to this appeal.