author: SMITH, Justice,

text:
    AMERICA SOUTHWEST CORPORATION et al. v. Reginald H. ALLEN et al.
    No. 48584.
    Supreme Court of Mississippi.
    Aug. 24, 1976.

      McLaurin & Nicols, Brandon, Brunini, Grantham, Grower & Hewes, William N. Norton, Wells, Gerald, Brand, Watters & Cox, A. Jerry Sheldon, Heidelberg, Woodliff & Franks, Luther M. Thompson, Craig Castle, Jackson, for appellants.
    O. B. Triplett, Jr., Forest, for appellees.
    Before PATTERSON, P. J., and SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court:

The appeal in this case is from a decree entered by the Chancery Court of Rankin County awarding damages to appellees, Reginald H. Allen (and others), royalty interest owners, as lessors of a tract known as the “Allen 40”, against appellants, America Southwest Corporation, (and others), owners of the “working” interest in the tract under an oil and gas lease.

After an extended evidentiary hearing the chancellor found that a producing well had been drilled within 150 feet of the west boundary of the “Allen 40” and was draining one-half of its production from oil which underlay the Allen tract. He held that a duty rested upon appellants, as owners of the working interests under the lease, to drill an offset well to prevent such drainage and that they had failed and declined to do this. As a result of this breach of duty, the chancellor found that appellees as royalty interest owners, had been damaged, that they were entitled to recover from appellants, and that thé amount of the recovery would be computed on the basis of the royalty clause of the lease on.an amount oil equal to one-half of the oil produced by the well located on the adjacent property known as the Boone 1-A. He also held that appellees were entitled to recover a further sum as damages for future drainage, by the Boone 1-A, projected approximately 20 years into the future during the anticipated productive life of the adjacent well. In addition, he awarded surface damages against appellants in the sum of $1,450.00. of

The evidence touching the controlling issues was irreconcilably conflicting. This was particularly true as to whether in fact, the Boone 1-A, drilled within 150 feet of the west boundary of the Allen 40 and a good producer, was or was not draining oil from a pool partly underlying the Allen tract. The chancellor’s finding that it was, in fact, draining the Allen tract is amply supported by credible evidence and, although contradicted in a number of particulars by witnesses for appellants, it is impossible for this Court to say from the record that his finding was manifestly wrong. The issue was one of fact and properly was for determination by the chancellor. Shell Oil Company v. James, 257 So.2d 488, 496 (Miss.1971).

In Monsanto Chemical Company v. Sykes, 245 Miss. 207, 223, 147 So.2d 290, 297 (1962), this Court stated the rule:

The obligations imposed upon appellants [lessees] by the implied covenant is designed by equity to require fair and reasonable efforts on the part of the lessees to prevent drainage. Equity neither requires improvident actions on the part of lessees nor permits lessees to deal unfairly or unreasonably with lessors. It recognizes that duty is measured by what is reasonable under the circumstances.

(Emphasis added).

The chancellor found that, under the circumstances in evidence in this case, a prudent operator would have been on notice that the oil produced by the well known as Boone 1-A drilled within 150 feet of the west line of the Allen tract and a good producer, was, in fact, draining oil from the pool which underlay, in part, the Allen 40, that appellants also had actual notice of such drainage, and that they failed and declined to act as prudent operators should have acted by drilling a protective well on the Allen 40 to offset such drainage, although requested to do so by appellees. The chancellor held that, consequently, the duty owed .to the royalty owners (appellees) by appellants to drill an offset well had been breached so that appellees became entitled to recover damages for losses sustained. These findings of fact are supported by credible evidence and the chancellor’s conclusions of law are correct.

The chancellor found that the appel-lees had suffered damages which had accrued to the date of the trial in the sum of $58,962.50 computed on the basis of the royalty specified in the lease on one-half the production of the Boone 1-A. This action of the chancellor was justified by the evidence and was in keeping with decisions of this Court and will be affirmed. Shell Oil Company v. James, 257 So.2d 488 (Miss.1971); Southwest Gas Producing Company, Inc., Et al. v. A. D. Seale, Et al., 191 So.2d 115 (Miss.1966); Phillips Petroleum Company v. Millette, 221 Miss. 1, 72 So.2d 176 (1954); Millette v. Phillips Petroleum Company, 209 Miss. 687, 48 So.2d 344 (1950).

A majority of the judges concur in affirming this award.

Likewise a majority concurs in holding that the chancellor’s award of $1,450.00 as surface damages was based on conflicting evidence and must be affirmed.

The chancellor then proceeded to go further. On the basis of expert testimony damages expected to accrue in the future (until 1995) by reason of future drainage by Boone 1-A were awarded, the chancellor, as stated, having found that the Boone 1-A was draining oil which underlay the Allen tract and that this constituted fifty percent of the oil Boone 1-A produced. Using the current market price of oil at the time, the chancellor awarded appellees an amount as damages to accrue in the future during the projected life of Boone 1—A. In 5, Williams and Meyers, Oil And Gas Law, section 825.5 (1975) the following statement appears as to this type of award.

However, damages may not be an adequate remedy for future drainage. Although the scientists and engineers may be able to estimate fairly accurately the amount of future drainage (if that be the measure) or the amount of future production from the hypothetical well, there is still uncertainty about future economic conditions that will affect the size of the award. Who knows, or can fairly estimate, what the price of oil and the rate of allowable production will be? True, these “facts” must be determined in order to decide whether a prudent operator would drill. But does it follow that estimates used for the purpose of determining liability should also be used to fix monetary damage? We suggest that this double doubt should be eliminated by restricting relief for future drainage to conditional cancellation of the lease — absent the circumstance discussed above where drainage has so depleted the leasehold that a commercial offset well can no longer be drilled. A proper decree would award monetary compensation for past drainage, where the price and allowable rate of production is known, and would forfeit the lease as to affected acreage if, within a specified time such as 60 or 90 days, the lessee fails to commence a protection well.

Since the above treatise was written it has become increasingly clear that the market value of oil and oil products is directly affected, not only by world economic conditions, but by unpredictable political upheavals and the worldwide conflicts of nations, as well as by embargoes and tariffs, and the extent to which productive fields can be discovered and exploited. Accurately determining how much oil an underground pool or reservoir contains, or predicting with any certainty the productive life of a well or the rate of its decreasing production are not inconsiderable difficulties and great expenditure of money and effort is presently being directed toward the discovery and development of synthetic fuels and energy sources. These and other factors are rationally unpredictable and are not so clearly foreseeable as to be reasonably capable of supporting an award of damages extended for many years into the future. Moreover, this precludes the possibility of a mitigation of damages by either party and assumes that they will be allowed to continue and accrue.

In Millette v. Phillips Petroleum Company, 209 Miss. 687, 48 So.2d 344 (1950) and Phillips Petroleum Company v. Millette, 221 Miss. 1, 72 So.2d 176 (1954) this Court drew on Bush Oil Company v. Beverly-Lincoln Land Company, 69 Cal.App.2d 246, 158 P.2d 754 (1945), in reaching certain conclusions. While the decision in Bush has become somewhat eroded since the above cases were decided by this Court, we have concluded that remedies suggested in Bush may be utilized to fashion a fairer and better remedy in cases of this kind than an attempt to project an award of damages into an unknowable future. Obviously, the latter process, involving, as it must, speculation as to unforeseeable events and conditions affecting the market price of this commodity, the exclusion of possibility of the mitigation of damages, as well as other imponderables, is quite likely to work a substantial injustice, whether to lessors or lessees.

For the above reasons, a majority of the judges concur in holding that the award of anticipatory damages, that is “lump sum” damages expected to accrue in the 20 years following the date of the decree appealed from shall be set aside, and the case remanded for further proceedings in keeping with the opinion written herein by Presiding Justice Patterson in which a majority of the judges concur.

The writer of this opinion differs from the majority, however, as to the best method by which this litigation may be brought to an early final conclusion and which will, at the same time, fairly protect the interests of the respective parties.

It is the writer’s view that, in lieu of the lump sum anticipatory damages awarded by the chancellor, appellants’ breach of duty should work a forfeiture of the lease if, following receipt of the mandate herein, appellants should fail to commence and complete an effective protective well to offset drainage of the Allen tract by the Boone 1-A, such well to be begun and completed within reasonable times to be fixed by the Court on remand. Meanwhile, in my view, appellees should continue to be entitled to recover damages from appellants on the basis of the royalty specified in the lease, computed on one-half of the Boone 1-A production, until such offset well has been completed to a point where it is substantially offsetting drainage by the Boone 1-A. If appellants should refuse or decline to do this within a reasonable time following receipt of the mandate herein and a forfeiture of the lease occurs for that reason, appellees should be entitled to recover of appellants damages computed at the same rate for an additional period of 90 days following such forfeiture, in order to afford them a reasonable time within which to drill the offset well themselves. This solution (again, in my view) would accomplish the desirable objective of bringing the matter to a close, and would seem to comport with the statement of this Court in Shell Oil Company v. James, 257 So.2d 488, 495 (Miss.1972), where there has been a breach of the covenant to prevent drainage. The Court stated:

If there is “substantial” oil or gas under the land in question the lessee is required to “drill or drop” the lease.

PATTERSON, Presiding Justice, for the Court:

I am of the opinion the appellees are entitled to future damages equal to the royalty they would have received had the appellants drilled a protective replacement well on the “Allen forty” to counter drainage from the Boone well. The lease, of course, provides for royalty payments once production begins which is to continue throughout the well’s productive life. The royalties are subject to the vagaries of market values and quantities produced during the well’s productive life. A lump sum payment under such circumstances, in my opinion, has the potential of injustice to either the lessor or lessee because of changing market values, quantities of production and duration of production. I am of the opinion that damages commensurate with one-eighth royalty upon one-half of the production of the Boone 1-A well less the royalty from the Allen No. 1 well (8150-foot zone) would be more attuned to the lease contract between the parties than would the payment of damages in a single sum.

I am of the further opinion that a conditional cancellation of the Allen lease as it affects the 8150 zone would be inappropriate for the present circumstances. The Boone 1-A well was completed as a producer in December 1969. The situation that existed within a reasonable time thereafter from which it could be determined that a prudent operator would drill an offset well is vastly different from the present circumstances which would be determinative of whether a prudent operator would presently drill. The price of oil, the cost of drilling and producing, as well as depletion of the zone by draining since 1969 are some of the factors to be considered in determining whether a prudent operator could presently drill with reasonable expectation of profit above cost.

I therefore think that the remand should be without prejudice to the appellants to drill or not drill as they think proper. Meanwhile, the payment in damages is to continue as mentioned and in the event a protective well is drilled to the 8150 zone, that damages be continued, mitigated or terminated, dependent upon the subsurface disclosures of that well.

In sum, we hold that damages be paid to the appellees on the basis of royalty upon one-half of the production of the Boone 1-A well as long as the Allen forty (8150 zone) is being drained by it, but without prejudice to the appellants to determine whether they, as prudent operators, should presently drill.

This case was considered by a conference of the justices en banc.

AFFIRMED ON LIABILITY, AFFIRMED IN PART ON DAMAGES AND REVERSED IN PART AND REMANDED ON DAMAGES.

INZER, P. J., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

GILLESPIE, C. J., did not participate in the decision.


source: Caselaw Access Project

license: Public Domain

text:
    Wilford Willis LEWIS v. STATE of Mississippi.
    No. 49231.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Andalman, Bergmark, Adelman & Steiner, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.

LEE, J., took no part.


author: LEE, Justice,

text:
    James BLACK v. STATE of Mississippi.
    No. 49263.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Andrew M. Gambrell, Hattiesburg, for appellant.

      A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court.

James Black was convicted of armed robbery in the Circuit Court of Forrest County and was sentenced to serve a term of twenty (20) years in the state penitentiary. From that conviction and judgment he appeals.

The only error assigned is that the trial court erred in overruling a motion for judgment notwithstanding the verdict. Appellant requested a peremptory instruction of not guilty and we treat this assignment as a refusal to grant the requested instruction.

On February 6, 1975, at about 9:30 A.M., Darlene Anderson (armed with a shotgun), Gloria Moody and Princess Smith robbed James Fluker, manager of Pineview Apartments in Hattiesburg, of five hundred fifty-six dollars ($556.00). After the robbery, Fluker saw them drive off in a gray and black Buick automobile with tag number 555 CAW; there were more than three persons in the vehicle. Shortly thereafter, appellant and Darlene Anderson were arrested at the Highway Host Motel, and Princess Smith and Gloria Moody were arrested downtown later during the day. Princess Smith testified for the State at the trial of appellant, who introduced no evidence in his own behalf.

Appellant contends that his conviction results from the uncorroborated testimony of the accomplice, Princess Smith; that her testimony should be viewed with great caution and suspicion; that it is not reasonable; and that it is contradicted in several respects.

The trial judge instructed the jury that the law looks upon the testimony of an accomplice with suspicion and distrust, and that the jury should weigh the testimony of Princess Smith with great care and caution and look upon it with distrust and suspicion as if coming from a corrupt and polluted source. He also instructed the jury that, if it could reconcile the evidence upon any reasonable hypothesis consistent with the defendant’s innocence, the verdict should be not guilty.

The law is settled in this state that the uncorroborated testimony of an accomplice will support a guilty verdict, but the rule requires that such uncorroborated testimony should be viewed with great caution and suspicion, and that it must be reasonable and not improbable or self-contradictory, or substantially impeached. Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953).

The testimony of Princess Smith was not unreasonable, improbable, or contradictory, and it was corroborated in the following respects:

(1) She testified that the car they were in was Black’s — the evidence indicated it was his brother’s car and that he had borrowed it.

(2) She testified that appellant told her to go in the apartment and find out whether there was any money — she went in, asked Fluker to change a dollar, saw the money in the cash register and reported it to appellant.

(3) She testified that Black drove the automobile away from the apartment and to the Highway Host Motel — Fluker said there were four or more people in the car as it drove off. Shortly after the robbery, Black and Darlene Anderson were arrested at the motel.

(4) She testified that they stopped before getting to the Highway Host Motel and that Black took the tag off the car — officers spotted the car from the description received, and there was no tag on it.

(5) She testified that all four of them checked into the motel and then she and Gloria Moody left — shortly after the robbery the officers arrested appellant and Anderson at the motel; Princess Smith and Gloria Moody were not there.

(6) Appellant and the three females traveled from Gulfport to Hattiesburg and were in the company of each other on February 5 and 6 (the date of the robbery).

(7) Officer Bobby Earl Richardson asked appellant at the Highway Host Motel who was driving the gray automobile in the back at the motel and appellant told him that he was.

(8) At the time of his arrest, appellant had the keys to the automobile in his pocket.

The evidence supports the verdict, and the judgment of the trial court is affirmed.

AFFIRMED.

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


author: LEE, Justice:

text:
    PEOPLE’S REALTY AND DEVELOPMENT CORPORATION v. Earl SULLIVAN et ux.
    No. 48780.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Rehearing Denied Oct. 5, 1976.
    Guy M. Walker, Laurel, J. C. Martin, Jr., Waynesboro, for appellant.
    W. Vol Jones, William Vol Jones, Jr., Waynesboro, for appellees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice:

People’s Realty and Development Corporation filed its bill of complaint in the Chancery Court of Wayne County for a mandatory injunction requiring Earl R. Sullivan and Lela B. Sullivan, husband and wife, to remove a fence enclosing approximately seven (7) acres of its land and for other relief. The chancellor found that the Sullivans were vested with title to the property by adverse possession for a period of more than ten (10) years, and from that decree People’s Realty and Development Corporation appeals. We reverse.

Appellant owns the Southeast quarter (SE-Vi) Section 6, Township 8 North, Range 6 West, Wayne .County, Mississippi, and the disputed area lies west of a reed brake fence and east of a fence designated, as the “Cooley fence” in the northwest corner of said tract. Appellees and two witnesses testified that they built a four-strand wire fence through the middle of the reed brake in 1961 by nailing the wire to trees, and Mr. Sullivan further testified that he cut some timber on the land in 1969, and that he grazed and claimed the land since 1961. Evidence for appellant disclosed that no fence was in the reed brake until 1969, and, upon discovering same in 1973, steps were taken to remove it, that appellees’ cattle did not graze the disputed area, and that there was no ingress or egress through the Cooley fence. Martin (appellant’s manager) testified that in 1959 and again in 1965, Sullivan sought to buy the disputed property from him' and that he told Sullivan it was not for sale. This testimony was not denied by appellees. All witnesses agreed that the fence, if there, could not be seen or discovered unless a person actually entered and crossed the reed brake.

The question confronting the Court is whether or not the conduct of appellees was sufficient to put appellant upon notice that its land was being held under an adverse claim of ownership. A landowner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen into title against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious possession. Sporadic and temporary activity on the property is not sufficient to give notice of an adverse claim, nor is an owner put upon such notice by occasional pasturing of cows, or by occasional cutting of timber.

In Berry v. Houston, 195 So.2d 515 (Miss.1967), the Court said:

“The acquisition of title by adverse possession, as that phrase is used in real property law, contemplates a special kind of possession. It is the intendment of the law that title to real property belonging to another may never be acquired by mere possession, however long continued, which is surreptitious or secret, or which is not such as will give unmistakable notice of the nature of the occupant’s claim. Such occupancy must not only be adverse, hostile, and exclusive as to others, but it must also be peaceful, uninterrupted, and continuous, under claim of ownership. In addition, the occupancy, under claim of ownership, must be actual, open, notorious, and visible.” 195 So.2d at 518.

We conclude that the cutting of timber one time in 1969 for the purpose of repairing barns and building troughs, the occasional pasturing of cattle upon the disputed land, the running of four strands of wire through the reed brake by nailing them to trees, which could not be discovered except by going across the reed brake, together with the fact that there was no denial by appellees of the testimony that Sullivan attempted to buy the disputed property from appellant in 1959 and in 1965, are insufficient to constitute adverse, hostile and exclusive occupancy contemplated by the statute, and that the chancellor was manifestly wrong in holding appellees acquired title to the disputed property through adverse possession.

For the reasons stated, the judgment of the trial court is reversed, judgment is rendered here for the issuance of an injunction requiring appellees to remove the fence from appellant’s property, and enjoining appellees from trespassing upon said property, and the cause is remanded to the trial court for the purpose of determining damages, if any, which may have accrued by reason of appellees’ cutting timber thereon.

REVERSED AND RENDERED; REMANDED TO THE TRIAL COURT.

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


text:
    The ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. MISSISSIPPI PUBLIC SERVICE COMMISSION.
    No. 48792.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Tally D. Riddell, Quitman, for appellant.
    A. F. Summer, Atty. Gen., by Bennett E. Smith, Asst. Atty. Gen., Jackson, Stewart & Burks, Picayune, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


author: W. W. BROWN, Commissioner,

text:
    Dolan McARTHUR, d/b/a M & M Plumbing v. ACME MECHANICAL CONTRACTORS, INC.
    No. 48752.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Gordon & Myers, Pascagoula, for appellant.
    Ransom P. Jones, III, Pascagoula, for ap-pellee.
    Before INZER, P. J., SUGG and LEE, JJ., and W. W. BROWN, Commissioner.
   W. W. BROWN, Commissioner,

for the Court:

Appellee, Acme Mechanical Contractors, Inc., brought suit in the Circuit Court of Jackson County against Dolan McArthur, d/b/a M & M Plumbing Co., on an open account for plumbing supplies sold on credit. Upon the trial before the circuit judge, sitting as judge and jury, the appellant stipulated that the debits and credits on the account were true and correct but pled the statute of limitations as a bar to all debits accruing three years prior to the filing of the suit. If the statute is to apply, the only debits upon which appellant has a continuing cause of action amount to $186.00. The court below held that the three year statute of limitations did not apply and entered judgment for all debits past due and owing in the amount of $2,525.27. From that judgment this appeal is prosecuted.

Mississippi Code Annotated section 15-1-29 (1972) provides:

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after.

No issue is raised concerning the Uniform Commercial Code. The appellee relies upon some language in the case of Anderson v. Laurel Oil & Fertilizer Company, 228 Miss. 95, 87 So.2d 556 (1956), that the application of certain credits in that case tolled the statute of limitations. Although the language therein may appear ambiguous in ruling on the weight of the evidence concerning certain credits, there is no principle of law in Anderson that changes or alters our previous application of the language of Mississippi Code Annotated section 15-1-31 (1972), which provides:

In all other actions upon open accounts, the period of limitation shall commence to run against the several items thereof from the dates at which the same respectively became due and payable.

This case involves a simple debit and credit open account. The transactions of debits and credits have been completed. A balance is still due and owing by the appellant that could be extinguished by payment and was by appellee expected to be extinguished by payment in cash. There was no further agreement nor anything to be done to adjust the account or accounting between the parties. This is not a “mutual and open current account” within the meaning of the omitted part of the above section of the Mississippi Code. See Stephenson v. Louisiana Oil Refining Company, 180 Miss. 410, 177 So. 912 (1938).

Appellee contends that the Mississippi rule which allows creditors to apply payments to the oldest part of the debt keeps the entire account active and tolls the statute of limitations. The one proposition does not necessarily follow from the other. The North Dakota Court, in applying the same rule, held that payments may be applied to the oldest debits on an account, even those barred by statute, so as not to reduce the obligation incurred within the statute, but partial payment of a simple account without a written acknowledgment or promise does not toll the statute. Erenfeld v. Erenfeld, 196 N.W.2d 406 (N.D.1972). Where there is an open running account which is not also a mutual account, the cause of action arises from the date of each item and they are severally barred when as to each the statute has run. 1 Am.Jur.2d, Accounts & Accounting, § 15 (1962).

In M. G. Travis & Company v. Mosley, 148 Miss. 368, 114 So. 628 (1927), the partial payment of an account after suit had been filed did not revive a cause of action already barred by the statute at the time suit was filed. (However, the partial payment was applied to the debits which were barred by the statutes; i. e., to the oldest part of the debt). Simple acknowledgment of a debt on account, even in writing, is not sufficient to take the account out of the operation of the statute. Trustees of Canton Female Academy v. Gilman, 55 Miss. (Brown & Hemingway) 148 (1877); Westbrook v. Beverly, 19 Miss. (11 Smedes & M.) 419 (1848).

In United States Fidelity & Guaranty Company v. Krebbs, 190 So.2d 857 (Miss.1966) where a partial payment on a note was in issue, this Court adopted the following rule:

The rule in Mississippi is that a partial payment does not take a case out of the operation of the running of the statute of limitations unless such partial payment is accompanied by (1) an express acknowl-edgement of a further indebtedness, and (2) an express promise to pay. (190 So.2d at 861).

This rule will be applied under the provisions of Mississippi Code Annotated section 748 (1956), [Mississippi Code Annotated Section 15-1-73 (1972)], which provide that:

In actions founded upon any contract, an acknowledgment or promise shall not be evidence of a new or continuing contract whereby to take any case out of the operation of the provisions of this chapter or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing signed by the party chargeable thereby. .

The operation of a “running open account” is generally governed by rule of contract. 3A, A. Corbin, Corbin on Contracts, § 698 (1960). In Mississippi an open account is an unwritten contract. Hembree v. Johnson, 119 Miss. 204, 80 So. 554 (1919). In the case of Foote v. Farmer, 71 Miss. 148, 14 So. 445 (1893), this Court in construing the three year statute of limitation said:

The statute mentioned bars actions on any unwritten contract in three years. To take a case out of this statute there must be a writing evidencing an acknowledgment of indebtedness, or promising to pay, in such terms as to render any supplementary evidence unnecessary. (71 Miss. at 150, 14 So. at 446).

We, therefore, now apply the rule adopted in Krebbs, supra, on “partial payment” to apply to a simple debit and credit open account. So, therefore, the payment and credit of the $50.00 by appellee on date of April 27, 1972, did not toll the statute of limitations. The learned judge erred in holding that the statute of limitations did not apply and is therefore reversed, and judgment entered here in the principal amount of $186, together with interest at the legal rate from and after February 28, 1974, the date of the judgment.

REVERSED AND RENDERED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Ed TURNER et al. v. Vance CLEMMER, Jr., and Watts Clark d/b/a Clemmer & Clark, Architects.
    No. 48828.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Wallace R. Gunn, Hattiesburg, for appellants.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Hattiesburg, Young, Scanlon & Ses-sums, Watkins & Eager, P. N. Harkins, Jackson, for appellees.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and PIGOTT, Commissioner.
   AFFIRMED AS MODIFIED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


author: SUGG, Justice,

text:
    Jerry Wayne BRIDGES v. STATE of Mississippi.
    No. 49251.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Moore, Epps, Ginger & Coleman, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court.

Defendant, Jerry Wayne Bridges, was indicted, tried and convicted of burglary in the Circuit Court of Scott County. At the time of his trial the defendant was awaiting sentencing on a forgery charge in Louisiana to which he had pled guilty. On cross-examination during the burglary trial evidence of his prior guilty plea was elicited from the defendant. The issue is whether a guilty plea is admissible for the purpose of impeaching a defendant’s credibility as a witness when sentence has not been imposed and final judgment has not been entered on the plea of guilty.

Mississippi Code Annotated Section 13-1-13 (1972), provides “Any witness may be examined touching his interest in the cause or his conviction of any crime . . ” A defendant who chooses to testify is within the rule set out in the statute. The prosecution has a right to cross-examine a defendant concerning his previous convictions for the purpose of impeaching his credibility as a witness. Thornton v. State, 313 So.2d 16, 18 (Miss. 1975); Brooks v. State, 192 Miss. 121, 123, 4 So.2d 886 (1941); Hartfield v. State, 186 Miss. 75, 92, 189 So. 530, 533 (1939).

The United States Supreme Court discussed the effect of a guilty plea in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), wherein the Court stated:

A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the Court has nothing to do but give judgment and sentence. (274 U.S. at 223, 47 S.Ct. at 583, 71 L.Ed. at 1012).

This Court expressed approval of the foregoing quote in King v. State, 254 Miss. 917, 923, 183 So.2d 494, 496 (1966). While the precise question presented in Kercheval, supra, is not at issue on this appeal, nevertheless, the language is applicable.

The lower court committed no error by allowing evidence of the defendant’s guilty plea. A plea of guilty is tantamount to a conviction for purposes of Mississippi Code Annotated section 13-1-13 (1972). Until the court in which the guilty plea is entered permits the plea to be withdrawn, it is admissible for the purpose of impeaching a defendant’s credibility as a witness.

AFFIRMED.

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

LEE, J., took no part.


text:
    CORINTH COMMUNITY DEVELOPMENT, INC., et al. v. W. B. C., INC.
    No. 49230.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Rehearing Denied Oct. 5, 1976.
    Smith, Downs, Coleman & Ross, Corinth, for appellants.
    James H. Mathis, Corinth, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   AFFIRMED IN PART AND REVERSED IN PART ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ., concur.


text:
    Leonard WELLS v. K. D. B. LEASING CORPORATION.
    No. 48817.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    Scales & Scales, Fred T. Rucker, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Kenneth W. Barton, Jackson, for appel-lee.
    Before PATTERSON, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.

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


author: GILLESPIE, Chief Justice,

text:
    Frank PRICE, III and Jerry D. Williams, Jr. v. STATE of Mississippi.
    No. 49248.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    J. W. Kellum, Sumner, Tom T. Ross, Clarksdale, for appellants.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court.

Jerry D. Williams, Jr. and Frank Price, III, were jointly indicted, tried and convicted in the Circuit Court of Coahoma County of armed robbery and sentenced to serve terms of twenty-one years in the penitentiary.

The sole question is whether the court erred in overruling defendants’ request for a severance. This question has two points of inquiry as hereinafter stated and discussed.

1. Is a separate trial a matter of right where two or more persons are jointly indicted for a felony"!

Mississippi Code Annotated section 99-15-47 (1972) states as follows:

Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases.

On March 21, 1975, Rule 29 of the Uniform Rules for Circuit Courts of Mississippi was adopted in the following language:

The trial judge will have the discretion of granting or refusing a severance in all criminal cases where the death penalty is not involved.

The appellants rely on Greer v. State, 54 Miss. 378 (1877). In Greer the Court recognized that at common law the right to a separate trial was discretionary with the court, but held that “what the common law regarded as a privilege, to be granted or not at the pleasure of the court, is by this positive enactment converted into a right which the court cannot refuse.” 54 Miss. at 380. The statute interpreted by the Court in Greer read as follows: “When two or more persons are joined in one indictment the court shall on application grant a severance, and permit them to be tried separately.” Id. (Emphasis appearing in opinion.) However, since 1880 and at present the statute provides the defendants may be tried separately. In several cases since the statute was changed to its present form, the Court has used language indicating that severance is a matter of right if seasonable application is made. Thompson v. State, 231 Miss. 624, 97 So.2d 227 (1957); Dueitt v. State, 225 Miss. 254, 83 So.2d 91 (1955); Bolin et al. v. State, 209 Miss. 866, 48 So.2d 581 (1950); Malone v. State, 77 Miss. 812, 26 So. 968 (1900). However, in each of those cases the Court did not have squarely before it the question whether a separate trial was a matter of right; therefore, the statements in these cases were obiter dictum. We hold that the word “may” in section 99-15-47 should be given its ordinary meaning, and whether a severance should be granted is addressed to the sound discretion of the trial judge.

2. Did the trial judge abuse his discretion in overruling the motion for a severance?

In a conference in chambers, with all defense counsel present, the judge asked whether there was any conflict of interest between the two defendants and counsel for appellant Price stated: “As far as a conflict of interest we are of the opinion that it does not exist.” Counsel for the defendant, Williams, remained silent. Absent a showing of prejudice there are no grounds to hold that the trial court abused its discretion.

Because Circuit Court Rule 29 made no change in the law, no question arises under the constitutional prohibition against ex post facto laws.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Ben R. GLASS, a minor, by and through his father and next friend, Joe B. Glass v. Gary P. GRAVES, a minor, by and through his father and next friend, Ben Graves.
    No. 48770.
    Supreme Court of Mississippi.
    Sept. 7, 1976.
    White & Morse, Gulfport, for appellant.
    Holmes, Dukes & Sullivan, Carl W. Wel-born, Hattiesburg, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   AFFIRMED.

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


text:
    Charles W. BAKER v. STATE of Mississippi.
    No. 49125.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    John C. Webb, Thomas R. Trout, Green-ville, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty., Gen., Jackson, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   REVERSED AND REMANDED.

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


author: KERMIT COFER, Commissioner,

text:
    Sandra CHISOLM et al. v. Irvin BOZEMAN et al.
    No. 48858.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Laurel G. Weir, Philadelphia, for appellants.
    Bourdeaux & Jones, Meridian, for appel-lees.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and COFER, Commissioner.
   KERMIT COFER, Commissioner,

for the Court:

The cause is before this Court on appeal from the Chancery Court of Neshoba County-

Appellants, the widow and children of Stennis Chisolm, deceased, brought this suit for damages and temporary and permanent injunction against the appellees, Bozeman, the surety on his bond as coroner of Nesho-ba County, the Circuit Clerk of Neshoba County, and the State Board of Health.

The complainants alleged that said Stennis Chisolm died, December 23,1973, as the result of accidentally inflicted wounds; that, before his body was removed, appellee Bozeman appeared at the scene and, claiming to be coroner of the county, undertook to hold an inquest; that a jury was assembled without the issuance of a precept, and proceeded without instruction to the jury; and, when the inquest had been completed, and the jury was ready to render its verdict, Bozeman ordered the jurors to sign their names to a blank sheet of paper stating to them that he would fill out their verdict; the jury, in the hearing, determined that the decedent met death as the result of accidentally self inflicted gunshot wounds, but Bozeman was undertaking, contrary to the advice of the sheriff, district attorney, and county attorney, to fill in the jury verdict to state that the death resulted from self inflicted gunshot wounds without showing the wounds were accidentally inflicted; when the jurors learned they had been “tricked into this situation” by Bozeman,, they demanded him to return their true verdict by filling in the blank verdict, but he wilfully and intentionally refused to do so, instead undertaking to turn in and file a fraudulent and untrue verdict; the jurors met and signed a true verdict, an exhibit to the bill of complaint, but Bozeman refused to meet with them for that purpose.

They alleged that they will suffer irreparable injury and damage if the coroner’s false verdict is filed and accepted as the jury’s verdict and that they will be deprived of insurance on the decedent’s life payable for accidental death but not for suicidal death; they will be embarrassed and humiliated, justice will be defeated, and the jury’s verdict will be ignored, and Bozeman was also undertaking to use his alleged version of the jury’s verdict to prepare a certificate of death for the decedent which would be a permanent record in the State Board of Health and could be used as evidence for the insurors in a suit or suits on the insurance policies.

They alleged that they have suffered and will in the future continue to suffer extensive pain and suffering because of the wrongful acts of Bozeman, that they have lost income and will continue to lose income, and have incurred medical expenses and will continue to do so in the future, because of the wrongful conduct of Boze-man.

They alleged that Bozeman was undertaking to return the false verdict to the circuit clerk and the State Board of Health, and will do so, unless temporary injunction is issued enjoining him from rendering and ■ filing the same with the circuit clerk, and the clerk from receiving or filing the same, and sought injunction, temporary and permanent, against Bozeman, the clerk, and the State Board of Health, and damages including the penalty of Bozeman’s coroner’s bond.

Temporary injunction was granted.

Bozeman and his surety filed general demurrers charging no equity on the face of the bill of complaint and full, adequate, and exclusive remedy at law by way of writ of mandamus. On these defendants’ motion to dissolve the injunction, the chancellor sustained the demurrers, dissolved the injunction, awarded damages on the injunction bond, and dismissed the suit.

The general demurrers admit all facts well pleaded. The bill of complaint states a cause for relief. First National Bank v. Langley, Miss., 314 So.2d 824 (1975). Mandamus, does not lie in the circuit court because the coroner’s inquest proceeding is such that there is involved here more than a ministerial act, performance of which may be required by that remedy. Miss. Code Annotated Sections 11-41-1 et seq. (1972). Injunction alone is available to appellants to prevent continuing damage to them.

The demurrers should have been overruled, and the cause will be reversed here, the temporary injunction reinstated, and the cause remanded.

REVERSED AND REMANDED.

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

      . Sitting pursuant to Chapter 430, Laws < ;1976. The above' opinion is adopted as the opinion of the Court.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. W. T. JACKSON et ux.
    No. 48794.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Reeves & Reeves, McComb, for appellant.
    Mounger & Mounger, Tylertown, for ap-pellee.
    Before INZER, P. J., SMITH and BROOM, JJ., and BROOME, Commissioner.
   AFFIRMED.


text:
    John T. RHODES v. Betty J. RHODES.
    No. 48957.
    Supreme Court of Mississippi.
    Sept. 14, 1976.

      Brown & Stanfield, Jackson, for appellant.
    0. B. Triplett, Jr., Thomas D. Lee, Forest, for appellee.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and COFER, Commissioner.
   KERMIT COFER, Commissioner,

for the Court:

This is an appeal from the Chancery Court of Scott County.

In a decree awarding a divorce to appel-lee, appellant was required to pay child support and a solicitor fee, and appellee was awarded the use of the parties’ home belonging to appellant. Appellee filed a petition for contempt citation for appellant’s failure to pay the solicitor fee and for modification of the decree to increase the child support because of material changes in circumstances. This appeal is from the decree entered on the latter petition.

The chancellor adjudged appellant to be in contempt of court for failure to pay the solicitor fee. Between the announcement of that finding and entry of decree on the issues, appellant paid the fee and the chancellor purposely withheld order thereon in his decree.

Viewing, by misdirection, that the finding was of criminal contempt, Evans v. Evans, 193 Miss. 468, 9 So.2d 641 (1942), appellant has assigned as error the adjudication. Having paid the amount which he had been ordered to pay, and it being a civil contempt adjudication, Masonite Corporation v. International Woodworkers of America et al., 206 So.2d 171 (Miss.1967), the error, if any, in the chancellor’s holding has become moot and decision by this Court would be an exercise in academics. Ford et al. v. Miss. Power Company, 289 So.2d 694 (Miss.1974) and Insured Savings and Loan Association et al. v. State, etc., 242 Miss. 547, 555, 135 So.2d 703 (1961).

Appellant assigned as error the allowance to appellee of monthly alimony. She had prayed alimony in her original bill, and was allowed the use of the home, which is in the nature of continuing alimony payable by the month. Savell v. Savell, 290 So.2d 621 (Miss.1974). In her modification petition, she only prayed adjustment of child support warranted by material changes in circumstances, and did not pray for alimony, nor does it appear from the proof that she was seeking support for herself. Appellant contends that he was taken by surprise and was denied opportunity to meet a claim for alimony. Due process required that he be given notice of the claim, which notice he did not have. The decision in Wansley v. Schmidt, 186 So.2d 462 (Miss.1966), is controlling here, and requires reversal of the lower court for this error.

Several other errors were assigned but they are not well taken.

The cause is, therefore, reversed as to the allowance of alimony, without prejudice to the parties with respect thereto, and is affirmed in all other respects.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

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

LEE, J., took no part.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Ann A. NASON v. James BIDDIX, an individual and Jim Biddix Realty.
    No. 48898.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Rehearing Denied Oct. 5, 1976.
    Bailey & Sadler, E. Foley Ranson, Ocean Springs, for appellant.
    Bryan, Nelson, Allen & Schroeder, James W. Backstrom, Pascagoula, for appellee.
    Before INZER, P. J., SMITH and BROOM, JJ., and BROOME, Commissioner.
   AFFIRMED.


text:
    W. P. BRIDGES, Jr., Bridges Properties, Inc. and Bridges Development Company, Inc., v. Ray BRAGG, d/b/a Ray Bragg Paint & Hardware Supply Company.
    No. 48814.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Donald 0. Simmons, Gulfport, for appellant.
    Cumbest & Cumbest, Pascagoula, for ap-pellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.


author: PATTERSON, Presiding Justice,

text:
    Bill HANNAH v. STATE of Mississippi.
    No. 49035.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Rehearing Denied Oct. 5, 1976.

      Dannye L. Hunter, Jerry L. Bustin, Forest, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice,

for the Court:

Bill Hannah, a Justice of the Peace of Scott County, was indicted for converting $8,823.50, the property of Scott County, in his possession by virtue of his office, to his own use, contrary to Mississippi Code Annotated section 97-11-25 (1972). He was convicted and sentenced to seven years in the penitentiary, with four years suspended, and two years on probation. He appeals and assigns thirty-one points for reversal.

The first is that the trial court erred in overruling the demurrer to the indictment. The demurrer’s theory is that the indictment was brought under Section 97-11-25 (a felony) entitled “Embezzlement — officers, trustees and public employees converting property to own use,” a general statute stating offenses relating to public officials, rather than Section 9-11-19 (a misdemean- or) directed to the duties of justices of the peace in accounting for fine? and penalties. It is urged the two statutes apply to the same subject matter and because Section 9-11-19 specifically refers to justices of the peace, it prevails over Section 97-11-25, the statute relating to public officers generally.

Section 9-11-19 creates and defines the legal obligation of each justice of the peace to account for, report, and to pay the fines and penalties received into the county treasury. Section 97-11-25 speaks to the unlawful conversion of monies or property which comes into the hands of a public officer by virtue of his office. The first is directed to the duties of a justice of the peace, its violation being a misfeasance in office, a misdeméanor. The latter is not directed to duties of office, but to the wrongful and unlawful conversion of public funds to personal use by a state officer.

While it is true that Section 97-11-25 applies to public officials generally and that Section 9-11-19 refers specifically to the duties of a justice of the peace, there nevertheless remain substantive differences between the two — violation of the method of performing a duty on the one hand as opposed to the unlawful conversion of public funds on the other — precluding control of the general statute by the more specific one, considering their different subjects. Bence v. State, 240 So.2d 630 (Miss.1970); McCaffrey’s Food Market, Inc. v. Mississippi Milk Comm’n., 227 So.2d 459 (Miss.1969); and Sanders v. State, 141 Miss. 289, 105 So. 523 (1925). We conclude that the court properly overruled the demurrer to the indictment.

The next argument is that the trial court erred in not quashing the indictment. Hannah asserts he was immune from the prosecution because the indictment was based upon personal records unlawfully taken from him and because he testified before the grand jury that returned the writ. We are of the opinion the motion to quash was correctly overruled because the evidence discloses the records were not presented to the grand jury as contended and were therefore not the basis of its indictment. Moreover, we adhere to the rule that “the law does not permit the court to go behind an indictment to inquire into evidence considered by the Grand Jury to determine whether it was in whole or part competent and legal.” Davis v. State, 255 So.2d 916 (Miss.1971); State v. Matthews, 218 So.2d 743 (Miss.1969).

On March 4, 1974, Hannah appeared before the grand jury and evidently responded to questions by it concerning the duties of his office. It is uncontradicted that the vote to return the indictment was on the afternoon of March 3, the day prior to his grand jury appearance. Since this is true, his testimony on March 4 was not used against him in violation of constitutional prohibitions. We conclude the motion to quash the indictment on this contention was properly overruled.

Hannah argues under the foregoing point that the district and county attorneys were present when the grand jury voted to return the indictment against him and that he was prejudiced thereby. This contention points out a repeating occurrence provoking justified criticism of our judicial system since it suggests undue influence and unfairness by the presence of prosecuting attorneys, advocates of the state, when critical votes are made affecting the well-being and liberty of those not similarly represented. Once again, we concur with that stated in Grantham v. State, 214 Miss. 756, 59 So.2d 344 (1952), as follows:

While this Court in prior decisions has said that it is the better practice for the district attorney to absent himself from the grand jury room while the grand jurors are voting on an indictment, the Court has nevertheless held that the presence of the district attorney at such time in the grand jury room is only an irregularity and constitutes no reversible error in the absence of proof of injury or prejudice resulting therefrom to the defendant. . . . (214 Miss, at 759, 59 So.2d at 346)

We conclude the irregularity does not constitute reversible error. We nevertheless feel constrained to state that it is not the better practice and policy requires that it not be done. The difficulty of an indictee proving prejudice emanating from the secrecies of a grand jury room makes this so. The suspicion of undue influence should be avoided by prosecuting attorneys removing themselves from the grand jurors’ presence when votes for indictment are cast.

It is urged that error occurred by the court’s suggesting to the state’s attorney that an objection should be made to the testimony being offered. The sheriff was being interrogated in support of defendant’s motion to quash the indictment because the grand jury’s actions were not secret. He was questioned concerning the apparent suicide of another justice of the peace who had also been indicted and particularly whether he had knowledge of a suicide note that might have been left by the decedent. The court inquired as to the relevancy of the testimony to which defense counsel replied that the testimony would substantiate the fact that the grand jury’s actions were not secret.

The court then inquired of the district attorney whether he had objection to the question and upon receiving an affirmative reply sustained the objection because it had no materiality. We are of the opinion the court’s query was not a suggestion to object, but rather was an inquiry only, and moreover, a valid one because it does appear that the question was irrelevant to the issue. A trial judge has the responsibility, within judicial discretion, of confining the testimony during trial to the issues before it. We observe no prejudice to the appellant from the court’s inquiry. Indeed, we discern no proffer of testimony to preserve the point had the witness been permitted to testify. Jones v. State, 306 So.2d 57 (Miss.1975).

It is suggested by the next two points that the court erred in permitting an amendment to the indictment and while doing so, compounded the error by commenting upon the evidence.' The comment occurred at the time the district attorney moved the court to amend the indictment by changing the amount allegedly embezzled from $8,823.50 to $1,176.50. When defense counsel was asked whether he had any objection, the following response was made:

If it please the Court, the Defendant would object to the Indictment being amended. The Defendant has the right and is prepared to answer the charges and the evidence presented to the Grand Jury, and this Court has a right to see it. There have been volumes of publicity about this case, and we have spent hours and hours preparing to defend the indictment served against him, and at this time if the State can’t prove its case, it ought to be dismissed.

The Court responded:

The objection is over-ruled. The amendment is allowed. We could stay here a month. The defendant can’t complain about reducing the amount to $1,176.50. Draw an Order and let the Order be entered immediately.

Thereupon counsel requested the jury to retire and when it did so, objected to the court’s comment. He cites Mississippi Code Annotated section 99-17-35 (1972) in part as follows: “The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of the evidence, . . . ” and numerous cases of this Court condemning comment upon the evidence by a trial judge, an example of which is Stallworth v. State, 310 So.2d 900 (Miss.1975).

There can be no doubt the statute and cases enjoin comment by a judge upon the evidence because the very position of a judge during trial makes each comment unusually susceptible of influencing a juror or the jury. The question presently reduces itself to whether or not the judge’s statement was a comment upon the evidence. We think the remarks of the judge were responsive to the terms of the objection that there had been volumes of publicity about the case and “hours and hours” of preparation to defend against the indictment and therefore the comment was evoked by the objection. Moreover, a fair reading of the colloquy, in our opinion, does not portray comment likely to prejudice the jury against Hannah, but is rather an explanation by the court for its ruling upon the amendment. This is permissible. Ratliff v. State, 313 So.2d 386 (Miss.1975); Bumpus v. State, 166 Miss. 276, 144 So. 897 (1932).

There follows argument that the amendment was improper. We are not persuaded because the amendment was of form and not substance. It is authorized by Mississippi Code Annotated section 99-17-13 (1972). And see Sanders v. State, 313 So.2d 398 (Miss.1975).

The probability that Mississippi Code Annotated section 13-5-1 (competent jurors), et seq. (1972) will permit a constitutional trespass on Hannah’s rights is assigned for reversal. The reason asserted is that he “could have and may have” been forced to trial absent a juror or jurors from his district. The premise for the probability arises from the Sixth Amendment to the Constitution of the United States in part as follows: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, . ” (Emphasis added.) We think the probability of error is insufficient for reversal. The burden of demonstrating that the jury selection system was discriminatory, thereby denying due process or equal protection of the law was upon Hannah. Reed v. State, 199 So.2d 803 (Miss.1967). No effort was made to comply with this burden, requiring this argument to be rejected.

A reversal is next sought upon the basis of Peters v. State, 314 So.2d 724 (Miss.1975), which holds that a trial judge has the exercise of judicial discretion in the manner the voir dire examination of a jury panel is conducted. Hannah contends that interrogating forty-nine prospective jurors distributed among five panels cause so much confusion that he was handicapped in his voir dire examination. The court offered all the time Hannah desired for the preliminary examination and advised that a full panel of twelve jurors accepted by the state would be submitted to the defendant for further questioning, if desired, before final acceptance for jury service. No proof was., offered to support the allegations of preju-' dice and we conclude there was no abuse of discretion by the court in the method of jury selection.

Daisy Holmes, a state witness, testified that she paid $150 to Policeman Gibson for the release of Sammy Holmes who was detained in the Scott County Jail for drunken driving. When both the state and the defendant had concluded their interrogation of the witness, the court asked the following question: “Daisy how did you know the amount required to get your husband out of jail was $150?” She replied: “Maxie Powell called Judge Hannah for me and he told him.” Hannah objected to this testimony and without ruling upon it the court stated: “All right, stand aside.” He later sustained the objection and instructed the jury to disregard Daisy’s answer because it was hearsay.

The unusual argument is now made that this question by the trial judge was an attempt to assist the district attorney and the county attorney, the judge’s son, in the state’s prosecution. In our opinion the argument is specious. It is generally acknowledged that a trial judge has the right to interrogate witnesses, within sound judicial discretion, to develop the truths of an issue. Jones v. State, 223 Miss. 812, 79 So.2d 273 (1955); Breland v. State, 180 Miss. 830, 178 So. 817 (1937); and Griffin v. State, 171 Miss. 70, 156 So. 652 (1934). We have studiously reviewed the evidence and must conclude that the argument is simply not supported by fact.

During the course of the trial several checks which had been used to make partial payments on fines were referred to by the state. The defendant objected for the reason the checks had not been timely produced in response to defendant’s application for the production of evidence authorized by Mississippi Code Annotated section 11-1-51 (1972). The motion had been sustained by- the court and it is true that the checks were not produced in accord with the order. However, the record reveals the district attorney had only received some of the checks “fifteen minutes” prior to their being offered into evidence and others the day before. Although it was disputed that shortly after they were received by the district attorney and prior to their introduction appellant was offered an opportunity to examine them, the trial court allowed the checks into evidence. From these circumstances we are of the opinion the court did not abuse its discretion in permitting the documents into evidence because we are unable to state the defendant was prejudiced thereby. Bright v. State, 293 So.2d 818 (Miss.1974); and Armstrong v. State, 214 So.2d 589 (Miss.1969).

There follows other argument that the court’s statement concerning Exhibit 14 to.the testimony of state’s witness‘Pettus was prejudicial as a comment upon the evidence. It was admitted into evidence over objection, the court stating: “Well it is a duplicate receipt of a receipt that is already in evidence, but I will permit the duplicate receipt to be admitted also. Let it be marked and admitted.” We a'gain think the remarks were in explanation of the court’s ruling. Ratliff, supra. We adhere to the philosophy stated in Bumpus v. State, 166 Miss. 276, 144 So. 897 (1932):

It is true that “an overspeaking judge is no well-tuned cymbal,” but, in language somewhat similar to that of Mr. Justice McReynolds, in Berger v. U. S., 255 U.S. 22, 43, 41 S.Ct. 230, 65 L.Ed. 481, 489, . . . neither is an aphonic dummy a becoming receptacle for judicial power.” (166 Miss, at 281-282, 144 So. at 899)

We think there was no prejudice resulting from the judge’s remark and observe there is no way a judge can conduct a trial in silence nor do we think it can be logically argued that his every word is a comment upon the evidence.

The trial of the defendant, a justice of the peace, created much public interest. During its course the district attorney permitted himself to be interviewed by a television journalist outside the front door of the courtroom. The interview was filmed and later portrayed to the public during a “TV” newscast at 6:00 and 10:00 p. m. The city of Forest where the trial was being conducted was within the area covered by the newscast. There is testimony from the bailiff for the female jurors that the motel rooms in which these jurors were staying had television sets in them. There is no testimony that any juror observed the interview with the district attorney on television. Since this is so, we conclude that Hannah was not prejudiced by the interview. We do state, however, that such action by a state’s attorney is the most logical and certain way to secure a reversal in a criminal case presently known to the bench and bar.

In the same vein, complaint is made that some members of the jury had access to the May 28, 1975, issue of the Scott County Times, a newspaper which carried a front page story of the trial. The testimony indicates that it was thought by a bailiff that one of the female jurors had gotten a copy of the paper. The bailiff for the male jurors did not know whether or not the male jurors had one of the papers. On cross-examination it was shown that no one knew whether the juror with the paper had read the article or not. The court in overruling the motion for a mistrial found there was no proof that any juror except the one had access to the Scott County Times and no proof that this juror had read the article. He was of the opinion that exposure to the newspaper by this juror did not impinge upon the right of the defendant to a fair trial. We concur and are of the further opinion, from the newspaper article before us, that it accurately portrayed the facts of the trial with which the jurors were already familiar and contained no prejudicial statement against either the state or the defendant. In Odom v. State, 172 Miss. 687, 161 So. 141 (1935), we stated:

The paper contained no prejudicial statement against either appellant or Rit-chie or the Federation of Labor. There was nothing in it calculated to bias the mind of the reading public for either one side or the other; it merely stated facts known to everyone. The evidence, on the motion failed to show that the juror, Rimmer, read the account of this proceeding in the paper. (172 Miss. at 696, 161 So. at 142)

The court’s refusal to grant Hannah several instructions and granting of others to the state are designated as error. We have considered each within the context of the argument directed to it and conclude there was no error either in the refusal to grant certain instructions and the granting of others. For brevity we do not elaborate.

We are requested through sincere argument to find the verdict of the jury not substantiated by the evidence, the thesis being that fines imposed by Hannah would be paid to Hannah or his wife and at the end of the month payment was made to the county at the time of their settlement report. This procedure, it is urged, was normally followed, but when an individual could not pay his fine, partial payments were accepted, thus leading to a discrepancy in the records rather than an actual shortage of funds. The record is replete with numerous instances of unofficial receipts being issued for a definitive sum and thereafter an official receipt issued in a lesser amount, the difference between the two not being reported. Abbreviated examples follow.

Westbery: Westbery issued a. check for $77 on May 26, 1973, payable to Hannah to satisfy a fine. An unofficial receipt for $77 was signed by Glaze and on May 30, 1973, the check was deposited to Hannah’s bank account. Hannah’s justice docket reflects that Westbery pleaded guilty to the charges of driving under the influence and having no driver’s license for which he was fined a total of $67 by Receipt Book No. 7, Receipt No. 4024. Hannah paid $67 to the county treasury.

Holmes: In September 1974 Holmes was jailed for driving while under the influence. His wife paid his $150 fine in cash and received a receipt for this amount from Donald Gibson (policeman) which states on its face: “By order of Judge Bill Hannah.” Gibson kept the money locked in his box at the police department for several days before it was turned over to Hannah. The official receipt, Book No. 15, Receipt No. 3778, was for $110 and that amount was reflected in Hannah’s settlement report.

No good purpose would be served by detailing the numerous similar incidents of irregularity and petty thievery. There was ample evidence to support the verdict and we cannot conclude it was against the overwhelming weight of the evidence.

The record before us reflects the unlawful conversion of public funds by a public officer to his own use in derogation of law and there being no prejudicial error therein, the cause will be affirmed.

AFFIRMED.

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

LEE, J., took no part.


text:
    GENESCO, INC. v. J. F. ANDREWS and T. J. Moody.
    No. 48810.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Thompson, Alexander & Crews, Jackson, for appellant.
    Burgin, Gholson, Hicks & Nichols, John W. Crowell, Columbus, for appellees.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   Affirmed on direct and cross-appeals.


text:
    Bessie Irene MARSHALL v. Terry L. MARSHALL.
    No. 49066.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Smith, Downs, Coleman & Ross, Corinth, for appellant.
    Charles R. Wilbanks, W. Jett Wilson, Corinth, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.


text:
    C. J. CHANEY v. STATE of Mississippi.
    No. 49268.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    Thomas J. Brewer, Jr., Pearl, for appellant.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J. and SUGG and WALKER, JJ.
   Affirmed.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Wilmer L. AULTMAN et al.
    No. 48784.
    Supreme Court of Mississippi.
    Sept. 14, 1976.
    John K. Keyes, Collins, A. F. Summer, Atty. Gen., Jackson, for appellant.
    Ingram & Matthews, Hattiesburg, for ap-pellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

The Mississippi State Highway Commission instituted proceedings against Wilmer L. Aultman and Elizabeth Aultman, owners, Daughtrey-Hughes, Inc., lessee, and Dynamic Industries, Inc., sublessee, to condemn 0.09 acres of land in Covington County. From a judgment in the Eminent Domain Court entering an additur of twenty-five thousand dollars ($25,000.00) or granting a new trial to Daughtrey-Hughes, Inc., the Commission appeals.

The jury returned a verdict for all parties in the aggregate sum of fifteen thousand five hundred ninety-four dollars and twenty-six cents ($15,594.26) and, of that amount, apportioned eleven hundred dollars twenty-six cents ($1,100.26) to the Ault-mans, three thousand four hundred ninety-four dollars ($3,494.00) to Daughtrey-Hughes, Inc., and eleven thousand dollars ($11,000.00) to Dynamic Industries, Inc. The trial court granted an additur to Daughtrey-Hughes, Inc. of twenty-five thousand dollars ($25,000.00), thereby increasing its award to twenty-eight thousand four hundred ninety-four dollars ($28,-494.00) and increasing the aggregate judgment to forty thousand five hundred ninety-four dollars and twenty-six cents ($40,-594.26). The judgment provided that Mississippi State Highway Commission pay said amount within thirty (30) days from date, or a new trial was granted. The Commission paid the amount awarded to the Ault-mans, and Dynamic Industries, Inc., who are not parties to this appeal, but declined to accept and pay the additur entered for Daughtrey-Hughes, Inc.

Appellee obtained a lease from the Ault-mans to one-half (%) acre of land at the intersection of U.S. Highway 49 and State Highway 590 for a period of ten (10) years with the right to extend same for an additional ten (10) years. It then constructed a small grocery store, restaurant, laundromat and carwash on the property and subleased to Dynamic Industries, Inc., with the right to install gas pumps and gas tanks thereon. Appellee received two hundred fifty dollars ($250.00) per month from that lease, plus one cent (1$) per gallon on all gas over seventeen thousand (17,000) gallons.

The property condemned is a strip along State Highway 590 one hundred (100) feet long and twenty-five (25) feet in width, gradually widening to approximately sixty (60) feet at the rear. Dynamic Industries, Inc. was required to move its gas pumps as well as two underground gas tanks. The property had an access of fifty (50) feet to Highway 590 which was reduced to forty (40) feet after the taking, and the new right-of-way line was thirty-five (35) feet from the corner of the buildings. On June 11, 1958, the Aultmans conveyed to the Mississippi State Highway Commission by warranty deed a parcel of land along the right-of-way of U.S. Highway 49, and throughout the trial in the lower court, the parties, their attorneys and the court proceeded on the theory that appellee had no access to U.S. Highway 49 even though appellee’s customers used the right-of-way for parking and for entering the premises prior to the condemnation proceedings.

Jerry Wallace, Staff Appraiser for the Mississippi State Highway Department, testified that the fair market value of the entire property, including improvements, is forty-five thousand eighty-eight dollars ($45,088.00), and that the after value is thirty-three thousand seven hundred fifty dollars ($33,750.00),. leaving total damages of eleven thousand three hundred and thirty-eight dollars ($11,338.00). Of this damage, he allotted ten thousand six hundred sixty-three dollars ($10,663.00) for the removal of the gasoline equipment and six hundred seventy-five dollars ($675.00) for the land. The Highway Commission’s only other appraiser was J. Ed Turner, a real estate man with thirty years’ experience, who testified that, in his opinion, the value of the property before the taking was forty-five thousand five hundred sixty-eight dollars ($45,568.00), and after the taking thirty-two thousand six hundred twenty dollars ($32,620.00), leaving damages of eleven thousand nine hundred forty-eight dollars ($11,948.00). He allotted one thousand thirty-five dollars ($1,035.00) for the land, two hundred fifty dollars ($250.00) for gravel and improvements on the land taken, and ten thousand six hundred sixty-three dollars ($10,663.00) for removal of the gasoline equipment. Neither appraiser allotted or fixed any damage to appellee. Thus, at the conclusion of the appellant’s case, there was no evidence and no guide for the jury to determine the damages of appellee.

W. O. Thomas, appraiser for appellee, testified that the before value of the property [Lessee’s interest] is fifty-nine thousand eight hundred dollars ($59,800.00), and the after value is seventeen thousand nine hundred forty dollars ($17,940.00) leaving damages of forty-one thousand eight hundred sixty dollars ($41,860.00) to appellee. Appraiser Arnold Moody testified that the value before taking [Lessee’s interest] is one hundred eleven thousand four hundred fifteen dollars and thirty cents ($111,415.30), and the after value is thirty-three thousand four hundred fifty-eight dollars and four cents ($33,458.04), leaving damages of seventy-seven thousand nine hundred fifty-seven dollars and twenty-six cents ($77,-957.26) to appellee. In this state of the record, it is difficult to see how the jury could arrive at $3,494.00 as due compensation to appellee or how the trial judge could grant an additur of $25,000.00, making an aggregate damage to appellee of $28,494.00.

The jury followed the correct procedure in finding total damages and then allocating damages to the landowner, the lessee and the sublessee, but it simply had no credible evidence to reasonably guide it in fixing damages to appellee [Lessee], and the result was the same as if the verdict were contrary to the overwhelming weight of the evidence. See Seago Enterprises, Inc. v. Mississippi State Highway Commission, 330 So.2d 588 (Miss.1976). Likewise, the trial judge judge struggled to remedy the situation, and it is manifest that he did not abuse his discretion in granting the new trial and that he was correct in doing so. Dorris v. Carr, 330 So.2d 872 (Miss.1976). However, we find that he manifestly abused his discretion in making an additur in the amount of $25,000.00.

Appellant contends that by its acquisition of U.S. Highway 49 right-of-way in fee simple and assertion of its police powers granted by statute, appellee was precluded from any right to damages by virtue of loss of access to U.S. Highway 49. Since this question was not presented to the lower court, nor considered by it, we arrive at no conclusion and render no opinion as to rights, if any, of the appellee raised by this question.

Appellant contends that the order sustaining the motion for new trial and granting the additur is a nullity for the reason that the court had no jurisdiction of the cause at the date of entry of such order. The court retained jurisdiction and had not entered a final order at that time, and the contention is without merit.

For the reasons stated, the judgment of the trial court is affirmed as to granting a new trial and is reversed as to the additur, and this cause is remanded to the lower court.

AFFIRMED IN PART; REVERSED AND REMANDED.

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


author: PER CURIAM:

text:
    CLOW CORPORATION v. J. D. MULLICAN, INC. and Insurance Company of North America.
    Misc. No. 700.
    Supreme Court of Mississippi.
    Sept. 14, 1976.

      Watkins, Pyle, Ludlam, Winter & Stennis, Walker W. Jones, III, Ross F. Bass, Jr., Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Hubbard T. Saunders, IV, Jackson, for appellees.
   ON MOTION FOR LEAVE TO AMEND APPEAL BOND

PER CURIAM:

J. D. Mullican, Inc., (Mullican) filed suit in the Chancery Court of Hinds County against Impar Enterprises, Inc. (Impar), Clow Corporation (Clow), and Insurance Company of North America (Insurance Company). The suit resulted in a judgment in favor of J. D. Mullican, Inc., against Clow and Impar in the sum of $36,819.35, and against Insurance Company in the sum of $34,380. The decree further provided that Insurance Company recover on its cross-bill from Clow and Impar .the said sum of $34,380.00 if Insurance Company alone pays the amount of said judgment and a reasonable attorney’s fee of $3,000.00 plus interest.

On July 20, 1976, Clow filed its appeal bond for an appeal to this Court. The bond was in the penal sum of $49,774.18, and the obligee was J. D. Mullican, Inc.

After the expiration of the forty-five-day period within which an appeal bond may be filed, Clow filed a motion for leave to amend the appeal bond so as to add the name of Insurance Company of North America as an obligee therein.

Insurance Company contends that the motion is not well taken and should be overruled because Clow did not appeal as to Insurance Company within the forty-five-day period provided by Mississippi Code Annotated section 11-51-5 (Supp.1975). Clow contends that it is entitled to the benefit of Mississippi Code Annotated section 11-3-5 (1972), which reads as follows:

An appeal to the supreme court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because of any failure by an officer to comply with the requirements of law in reference to appeals; but all defects and irregularities may be cured by amendment so as to perfect the appeal and obtain the judgment of the supreme court in the case; but the court may dismiss an appeal for a failure of the appellant to do, within a reasonable time, what may be necessary to perfect his appeal.

The Court has construed section 11-3-5 in a number of cases. In Snipes v. Commercial and Industrial Bank, 225 Miss. 345, 82 So.2d 895 (1955), the Court stated:

This statute is broad in its terms and we should not limit its application to trivial defects and irregularities. It should be liberally construed in favor of allowing the case to reach final judgment on the merits. 225 Miss, at 360, 82 So.2d at 896.

And in First National Bank of Vicksburg v. Cutrer, 190 So.2d 883 (Miss.1966), the Court again held that the Legislature intended a liberal approach to the problem now before the Court.

In the present case the bond was filed in the correct amount within the statutory period and the Court is of the opinion that under the facts of this case the motion should be sustained. Accordingly, leave is hereby granted Clow to file an amended appeal bond in accordance with the copy of the proposed bond attached to its motion. This motion was considered by the Court en banc.

PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG and LEE, JJ., concur.

GILLESPIE, C. J., and SMITH, WALKER and BROOM, JJ., dissent.


author: FAULKNER, Justice.

text:
    STATE of Alabama v. Scott M. CORLEY et al.
    SC 1805.
    Supreme Court of Alabama.
    Sept. 3, 1976.
    William T. Denson, Goodwater, for appellant.
    Teel & Teel, Rockford, for appellees.
   FAULKNER, Justice.

This is an appeal from a condemnation evaluation case in which the Circuit Court of Coosa County declined to rule on the State’s motion to abandon condemnation. We affirm.

The State of Alabama instituted condemnation proceedings in the Probate Court of Coosa County on August 11, 1975, to condemn a 7.63 acre tract of land in Coosa County owned by Scott M. Corley and Florence Corley. The landowners appealed the commissioners’ award to the Circuit Court. In a pretrial order the parties stipulated that the State had the right to condemn the land, and that the only issue for trial was the amount of damages, and compensation, if any, to which the landowners were entitled for the land. A jury verdict and judgment on November 4 placed damages at $35,000.

On November 14, the State filed a motion to abandon condemnation proceedings. On December 3, the State filed a motion for a new trial. The motion for a new trial was overruled on January 6, 1976. The State then filed notice of appeal. The trial court took judicial notice of the State’s notice of appeal, and declined to rule on the motion to abandon condemnation proceedings, on the ground that the State’s appeal divested the trial court of jurisdiction to rule on the motion.

The major issue is whether the State of Alabama can abandon a condemnation project because of the amount of a jury award after the condemnation order has been signed by the Probate Court, damages have been paid into the Probate Court, and the State has obtained the right to enter into, and upon, the condemned property.

Notice of the appeal was filed before the trial court ruled on the motion to abandon condemnation proceedings. In fact, the trial court never ruled on this motion. As stated by this court recently in State of Alabama v. Newberry, Ala., 336 So.2d 181 (1976), “This court is a court of appellate review and will not entertain review proceedings until after the trial court has ruled. 2 Ala. Digest Appeal & Error, Sec. 242(1).”

In addition, the State in brief mentions that the lower court failed to rule on the question of excessive damages. The motion for new trial did not raise that issue and the motion to abandon condemnation proceedings did not contain a statement as to why the motion was filed. “Since the trial judge did not have an opportunity to act on the issue of excessive damages, this court will not consider that issue on appeal. State v. Ferguson, 269 Ala. 44, 110 So.2d 280 (1959); State v. Graf, 280 Ala. 71, 189 So.2d 912 (1966).” State of Alabama v. Newberry, supra.

AFFIRMED.

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


author: SHORES, Justice. MADDOX, Justice

text:
    Carlos LaGRAVE and Catherine W. LaGrave v. George JONES and Richard Grogan.
    SC 1667.
    Supreme Court of Alabama.
    Aug. 20, 1976.

      Vincent F. Kilborn, Mobile, for appellants.
    Tonsmeire, McFadden & Riley and J. H. Fernandez, Mobile, for appellees.
   SHORES, Justice.

In May, 1975, the LaGraves (hereinafter sellers) executed an instrument and delivered the same to Jones and Grogan (hereinafter buyers), which provided:

“ . . .1 hereby grant to you [buyers] the option to purchase that certain real property situated in the City and County of Mobile, Alabama described as Lot[s] 5 and 6, Block 4, of Pinehurst Subdivision .
“This purchase agreement is granted on the following terms and conditions:
“1. The agreement to purchase the said property shall expire at midnight on the 10th day of July, 1975, unless prior to such expiration time you have exercised the said agreement as hereinafter provided.
“2. This agreement is subject to purchaser being able to secure the zoning classification change for subject property to provide the erection of an office building whose purpose it is to conduct Insurance business.
“3. The purchase price shall be ELEVEN THOUSAND FIVE HUNDRED AND NO/100 ($11,500.00) DOLLARS at closing.
“If the zoning of the aforementioned property is not accomplished during the option period, then the option monies shall be refunded. If the zoning is accomplished, a warranty deed will be issued and the option monies will apply to the purchase price and the down payment at closing.”

On May 5,1975, the buyers applied to the Board of Adjustment of the City of Mobile for a use variance “To erect a one story office building of approx 1000 to 1200 sq ft to be used as an insurance office.” At the time of the option, the lots were zoned R-l, Residential.

On June 2, 1975, the Board of Adjustment denied the application for a use variance and notified the buyers of that fact on June 3rd. The buyers appealed the denial of the use variance and notified the sellers on June 9th that they were thereby exercising the option to purchase the lots. By letter of July 10th, the buyers again notified the sellers that the option was being exercised and that the buyers were willing to accept the property under the existing zoning classification, “since they have taken a formal appeal from the adverse decision rendered by the Board of Adjustment.”

The sellers refused to convey the property and returned the $1,000 down payment to the buyers on July 10th, the last day for exercising the option. The buyers refused the refund and brought this suit for specific performance.

The buyers filed motion for summary judgment based on the pleading. The sellers filed a motion for summary judgment supported by an affidavit, which was countered by the buyers by affidavit. The trial court granted summary judgment in favor of the buyers and the sellers appealed.

The sellers’ affidavit asserted that “ The change in zoning classification mentioned in paragraph 2 of the agreement if accomplished by the [buyers] would have permitted commercial usage, to-wit, an insurance office building and would have materially benefited me, as it would have changed the character of the area from residential to commercial and would have made it easier for me to commercially develop my nearby property. This benefit to me in changing the zoning of Lots 5 and 6 was one of the inducements in the signing of the agreement by myself and my wife.”

The buyers’ counter-affidavit stated in part:

. . Prior to May, 1975, we had negotiated with Mr. Carlos LaGrave . to purchase lots five and six of the Pinehurst Subdivision. During these negotiations we were aware that the [sellers] owned other nearby lots, in fact, the defendant Carlos LaGrave told us he had sold some nearby property to a dentist who wanted to build an office in the area. Nothing was said by either of the defendants before, during, or at the time of their presentation to us of the option to purchase which is the subject matter of this suit to indicate that the defendants were at all interested in the zoning variance being obtained. At all times it was our understanding that the clause allowing the return of the option monies in the event a variance wasn’t obtained and making the option subject to obtaining such a variance was for our exclusive benefit because we would have no use for the property if we could not construct thereon an insurance office. In fact, Richard Grogan specifically requested of defendant Carlos LaGrave that such a clause be included in the option. When the initial request for a variance was denied, we decided to exercise the option and purchase the property hoping to secure such a variance in the future. We are presently attempting to secure such a variance.”

The sellers concede that if the condition for securing a zoning variance was for the exclusive benefit of the buyers, then they have the right to waive such a condition, and, of course, that is true.

“While a party to a contract may not waive stipulations in favor of the other party, or rights to which the other party is entitled, he may waive contractual provisions for his benefit. . . . ” 17A C.J.S. Contracts § 491.

But, the sellers contend that the condition was for the benefit of both the buyers and the sellers, which assertion they make in their affidavit. This, they say, presents a genuine issue of a material fact, making the ruling of the trial court in granting the buyers’ motion for summary judgment erroneous.

WTiether such conditions are for the benefit of the buyer, or the seller, or both, must be determined under the facts and circumstances of each case and, of course, by the language of the agreement entered into between them.

We think it is clear from the language of the agreement and the undisputed facts presented by the respective affidavits that this provision was inserted in the contract for the benefit of the buyers. The Supreme Court of Pennsylvania,, presented with an argument similar to that advanced by the sellers here, i. e., that the provision was intended for the mutual benefit of the parties, said in Funke v. Paist, 356 Pa. 594, 52 A.2d 655, 656 (1947):

“ ‘. . .it seems clear that the contingency clause was included in the agreement of sale solely at the suggestion and for the benefit and protection of the plaintiff [buyer] ... It was only natural that he did not desire to bind himself to purchase a property of which he could make no use. On the other hand, it is difficult to see of what use or benefit such a provision could possibly be to the defendants, the sellers. Once they sold their property, their interest in its use would naturally terminate. The only reason advanced now is that it would afford neighboring property owners an opportunity to object to the use plaintiff intended making of the property. This appears to be more of an afterthought in defense, rather than a reason for relying on the clause at the time the agreement was signed. Consequently, we cannot agree that the clause was included for the mutual benefit of both vendors and vendee.’ ”

The sellers here contend that their nearby property, other lots in the same subdivision, would be benefited because, as Mr. LaGrave said in his affidavit “ . . .it would have changed the character of the area from residential to commercial and would have made it easier for me to commercially develop my nearby property.”

The fallacy with this argument is found in the undisputed facts adduced by the affidavits of both parties. The agreement charged the buyers with attempting to get the Board of Adjustment to issue a use variance as to Lots 5 and 6 of Pinehurst Subdivision. Such a use variance would not have affected the zoning classification of other lots in this subdivision which the sellers owned and which were “nearby” Lots 5 and 6. Had the variance been granted, Mr. LaGrave would not have been able to commercially develop his property. We can find nothing to indicate that the parties intended this condition in the option agreement for the benefit of the sellers. By this, we do not mean that such provisions are always for the benefit of the buyer. Under proper circumstances, such a provision could benefit both parties. Indeed, it is conceivable that only the seller would gain a benefit by such a provision.

In Godfrey Co. v. Crawford, 23 Wis.2d 44, 126 N.W.2d 495, 496 (1964), the instrument had the following proviso:

“‘The Buyer shall be joined by the Seller and Gary F. Krause and Virginia Krause (owners of the adjacent . premises) in petitioning the Milwaukee Common Council for certain revisions in zoning that will permit the development and construction of facilities shown attached and marked Exhibit “D”; such petition shall be filed on or before January 3, 1963, and in the event the petition for rezoning is denied or cannot be consummated on or before March 1, 1963, then in that event this offer to purchase shall become null and void and all monies paid hereunder shall be returned to the Buyer.

Prior to March 1, 1963, the buyer notified the sellers that it waived the rezoning condition and stood ready to complete the purchase, and tendered the balance of the purchase price, which the sellers refused. There, the Wisconsin Court found that the provision as to time was for the benefit of the sellers, because the failure to get the property rezoned within the option period terminated the sellers’ liability on the contract, and left the sellers free to sell the property to someone else at the end of the option period. However, in that case the buyer waived the condition prior to the end of the option period. The court said:

“The fact that this particular provision is held to be for the benefit of the sellers as well as the buyer, however, does not in itself preclude the buyer from waiving prior to March 1, 1963, the condition that the zoning revision be consummated by March 1, 1963. This is because it is alleged in the amended complaint that the zoning change was for the protection of the buyer, and the general rule is that a party to a contract can waive a condition that is for his benefit. [Citations Omitted]
“By permitting the buyer to waive the condition with respect to zbning revision, providing such waiver occurs prior to the specified cut-off date of March 1, 1963, there is no interference with the protection afforded sellers by the provision in the contract that, if the zoning revision is not consummated by that date, the contract is rendered null and void. The prior waiver has the same effect as a consummated zoning revision insofar as the rights of the sellers are concerned. In either event the buyer is absolutely obligated to pay the balance of purchase price on the. closing date of March 1,1968. ...” (126 N.W.2d at 498)

Cases from other jurisdictions are collated in 76 A.L.R.2d 1195. Some courts hold that such provisions are for the benefit of the buyer; and some hold that they are for the benefit of both parties; but, in every case which we have found, the determination was made by looking to the contract between the parties and considering the circumstances of each case. Such, we think, is a sound approach.

Looking to the written instrument in this case and the affidavits offered by both sides in support of their respective motions for summary judgment, we think the trial court correctly held that the provision in this case was inserted for the benefit of the buyers and, hence, enabled them to waive that condition before the option expired. There is nothing to support the sellers’ contention that their nearby property would benefit from the use variance, if granted as to the lots subject to the option agreement.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

MADDOX, J., dissents.

HEFLIN, C. J., not sitting.

MADDOX, Justice

(dissenting).

Plaintiffs’ motion for summary judgment was based only “on the pleadings.” Defendants’ affidavit, which was filed in opposition to plaintiffs’ motion, states:

* * * The change in zoning classification mentioned in Paragraph 2 of the agreement if accomplished by the Plaintiffs would have permitted commercial usage, to-wit, an insurance office building and would have materially benefited me, as it would have changed the character of the area from residential to commercial and would have made it easier for me to commercially develop my nearby property. This benefit to me in changing the zoning of Lots 5 and 6 was one of the inducements in the signing of the agreement by myself and my wife.” [Emphasis added.]

The majority concludes as a matter of law that the contract terms show the condition here was for the benefit of the buyers. I fail to see how the majority can so conclude, when the sellers dispute that, and the sellers’ affidavit is the only evidence on this issue which could be legally considered by the trial court.

Since buyers and sellers claim that the “zoning change” condition was for their benefit, there was a disputed issue of fact which should not be resolved except by a trial on the merits. Consequently, I respectfully dissent.