author:
BLOODWORTH, Justice.
      TORBERT, Chief Justice

text:
    Ranny Lee COCKRELL v. WORLD’S FINEST CHOCOLATE COMPANY, INC., a corporation.
    SC 2144.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Sept. 30, 1977.

      James H. Lackey, Mobile, for appellant.
    Mayer W. Perloff, Mobile, for appellee.
   BLOODWORTH, Justice.

Default judgment was entered against defendant, Ranny Cockrell, in favor of plaintiff, World’s Finest Chocolate Company, Inc., for $30,647.32 and costs. Defendant filed, and the court denied, a motion to set aside the default judgment. Later, defendant filed, and the court denied, a motion to reconsider the denial of his motion to set aside the default judgment. Defendant appeals, and plaintiff moves to dismiss the appeal with prejudice. The motion to dismiss the appeal is denied. The trial court’s denial of defendant’s motion to reconsider the denial of his motion to set aside the default judgment is reversed and remanded.

MOTION

Plaintiff contends that defendant’s notice of appeal, which was filed on October 25, 1976, was not filed within 42 days after the court’s entry of final judgment for plaintiff or the court’s denial of defendant’s motion to set aside the default judgment. Rule 4, Alabama Rules of Appellate Procedure. Judgment by default was entered on June 17, 1975, and the motion to set aside the judgment was filed on August 14,1975, and was denied on October 29,1975. Rule 60(b), Alabama Rules of Civil Procedure. Defendant’s motion to reconsider the denial of his motion was filed on October 31, 1975, and was denied on September 29, 1976, after several hearings before the court ore tenus. Plaintiff contends that this order is not an order from which an appeal may be taken. We disagree.

The order in question, like the order denying the motion to set aside the judgment, is a denial of a Rule 60(b) motion. Although a motion under Rule 60(b), ARCP, “does not affect the finality of a judgment or suspend its operation” and thus does not extend the time for taking an appeal, an order denying such a motion is appealable. An appeal of an order denying a motion under Rule 60(b) presents for review the correctness of the order, not the correctness of the final judgment which the movant seeks to have set aside. Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 411, 318 So.2d 271 (1975); Wright & Miller, Federal Practice and Procedure: Civil § 2871.

Plaintiff contends also that this appeal should be dismissed because defendant’s notice of appeal, by failing to state which order or judgment is being appealed, fails to comply with Rule 3(c), ARAP. The notice states:

“Notice is hereby given that RANNY LEE COCKRELL appeals to the above-named court from the order entered in this cause.”

Rule 3(c), ARAP, provides, inter alia, that the notice of appeal “. . . shall designate the judgment, order or part thereof appealed from . . . .” It is true that defendant’s notice of appeal does not state whether the appeal is being taken from the default judgment, the order denying the motion to set aside the judgment, or the order denying the motion to reconsider denial of the motion to set aside the judgment. This, however, is not fatal to defendant’s appeal, nor is it reason to dismiss it.

The time for taking an appeal from the default judgment and from the denial of the motion to set aside expired long before the notice of appeal was filed. Consequently, there is only one order from which this appeal could have been taken — the denial of the motion to reconsider the denial of the motion to set aside the judgment.

Under Rule 2(a), ARAP, dismissal of an appeal from an appealable order is mandatory only where notice of appeal was not timely filed. In other cases of failure to comply with the rules, dismissal is discretionary. Because Rule 1, ARAP, mandates that these rules “. . . shall be construed so as to assure the just, speedy and inexpensive determination of every appellate proceeding on its merits,” and because the deficiency in defendant’s notice of appeal has not left this Court or plaintiff uncertain as to which order is being appealed, we decline to dismiss the present appeal.

MERITS

On April 3, 1975, plaintiff filed suit against defendant, a former employee on open account, for money had and received, and for misrepresentation. On April 10, 1975, defendant was served with a copy of the summons and complaint.

On May 8,1975, defendant filed with the circuit court a document containing the name of the court, the style of the case, the case number, and defendant’s signature. The document was entered upon the docket as “Answer of Defendant,” and a copy was forwarded to plaintiff’s attorney. The document stated that defendant’s attorney would be replying in a few days, that defendant had been out of town since having been served, and that his attorney would be in contact very soon.

On June 17, 1975, on motion of plaintiff and without any notice to defendant, the court entered a default judgment.

On this appeal, defendant contends that the document which he filed on May 8, 1975, constituted an appearance in the action and entitled him to three days’ written notice of the application for a default judgment. Rule 55(b)(2), ARCP. He contends further that plaintiff’s failure to serve such notice rendered the default judgment void. Alternatively, defendant contends that the judgment is voidable for mistake, inadvertence, surprise, or excusable neglect and that the trial court erred in refusing to set it aside. Rule 60(b)(1), ARCP.

Plaintiff contends that in order to be entitled to relief under Rule 60(b) the mov-ant must allege and prove facts which would constitute a good and meritorious defense and that defendant did not do so.

We hold that the document filed by defendant on May 8, 1975, constituted an appearance and that defendant was entitled to the “3 days” notice required by Rule 55(b)(2), ARCP.

An appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court. Port-wide Container Co., Inc. v. Interstate Maintenance Corp., 440 F.2d 1195 (3rd Cir. 1971); H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 139 U.S.App.D.C. 256, 432 F.2d 689 (1970); Anderson v. Taylorcraft, Inc., 197 F.Supp. 872 (W.D.Pa.1961). See also Wright & Miller, supra at § 2686; Anno., 27 A.L.R.Fed. 620; Anno., 73 A.L.R.3d 1250.

The document which defendant filed with the court on May 8, 1975, clearly indicated an intention to submit to the jurisdiction of the court and to defend the action. Plaintiff does not dispute defendant’s contention that he had appeared in the action and was entitled to “3 days” notice of application for entry of default.

We hold further that failure to give the required notice in this case requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not. Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963); Press v. Forest Laboratories, Inc., 45 F.R.D. 354 (S.D.N.Y.1968). In so holding, we do not decide whether a default judgment entered without the required notice is void or merely voidable.

It is the view of Wright & Miller that lack of notice should not automatically entitle the defaulting party to relief but should be one of the factors which the court considers when it exercises its discretion in ruling on a motion to set aside the judgment. Wright & Miller, supra at § 2695. See 6 Moore’s Federal Practice ¶ 55.05[3]. We do not think this is the better view. Wright & Miller offer no reason for regarding this as the preferable view, and the courts are not in agreement as to the effect of failure to give notice. See Anno., 51 A.L.R.2d 837.

We think that our approach is more consistent with our policy which favors the determination of cases on the merits and disfavors default judgments. Moreover, our rule makes for certainty in the law— namely that the notice required by Rule 55(b)(2), ARCP, must be given when the defaulting party has filed an appearance, as here, and has indicated a clear purpose to defend the action.

The dissent makes two assertions, to which we direct a short response.

First, is the notion that “ . . . the ‘Motion to Reconsider’ should be considered as a post-judgment motion deemed denied, under Rule 59.1, ARCP, 90 days after it was filed . . . .” The answer is that both parties and the trial judge, below and here, treated the motion as a Rule 60(b) motion. Also, Rule 59.1 states that only post-trial motions filed pursuant to Rule 50, 52 or 59 shall remain pending longer than 90 days. Rule 50 refers to motions for directed verdict and N. O. V., Rule 52 to findings by the Court, and Rule 59 to motions for new trial. No mention is made in Rule 59.1 of a Rule 60(b) motion. The judge held hearings on this motion from the time it was filed until it was acted on September 29, 1976.

Second, it is suggested that our decision will “further delay the disposition of this action, [and] be more expensive.” We think not. If a defendant has entered an appearance he is entitled to the three days’ notice, because the Rule says so, and if the trial courts ensure, as we know they will, that the three days’ notice is given, the merits will be reached, delay will be minimized, and justice will be served.

REVERSED AND REMANDED.

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

TORBERT, C. J., and MADDOX, J., dissent.

TORBERT, Chief Justice

(dissenting):

The motion to set aside the default judgment, entered June 17, 1975, was filed August 18, 1975, and was denied October 20, 1975. A motion to reconsider the denial of the motion to set aside the default judgment (the second motion) was filed October 31, 1975, and was denied September 29, 1976, some 11 months later. The majority holds that this appeal was taken from the denial of the second motion rather than the first motion to set aside the default judgment; otherwise, this appeal would not have been timely filed.

I am troubled with the opinion of the majority in its decision to treat the second post-judgment motion (a motion to reconsider the denial of the motion to set aside the default judgment) as a 60(b) motion. Can there be successive 60(b) motions ad infinitum? I do not think so, at least not in this case where no additional or different grounds were assigned in the second motion from which the majority holds the appeal was taken. The reasoning of the majority would lead to results certainly not intended, that is, successive 60(b) motions over whatever period of time the movant decided to extend the judicial proceeding where a final judgment was rendered. Would the majority hold that another “60(b) motion” to reconsider the motion to reconsider the denial of the motion to set aside a default judgment is an appealable 60(b) motion, with the result that, if a defect [failure to give the three days notice required by Rule 55(d)(2) ARCP] were found in the original default judgment, it would, therefore, be set aside?

In any event, this “first” 60(b) motion did not affect the finality of the default judgment or suspend its operation, or toll the time for appeal from the judgment. Rule 60(b) ARCP; Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975). The trial court denied the “first” 60(b) motion on October 29, 1975. This order of denial was a final order and ap-pealable as such. 7 Moore’s Federal Practice, § 60.30[3].

Since the order of denial was entered prior to December 1, 1975, the defendant had six months within which to appeal from that order, that is, April 29, 1976. He did not do so. He followed a route followed by defendants in two recent federal cases. In Pulliam v. Pulliam, 156 U.S.App.D.C. 25, 478 F.2d 935 (1973), defendant had suffered a default against him. He filed what he styled a “Motion to Reinstate Cause,” which the district court treated as a 60(b) motion, and which the court denied. Defendant changed counsel and new counsel filed what he styled a “Motion to Reconsider Motion to Reinstate Cause Herein, Interpreted as a Motion to Set Aside Default.” This motion was also denied by the court. At page 27, 478 F.2d at page 937, the court said:

“On August 6, 1970, defendant, represented by new counsel, filed a document entitled a Motion to Reconsider Motion to Reinstate Cause Herein, Interpreted as Motion to Set Aside Default. Defendant resolved any doubts as to his intentions when, four days later, he filed a statement of points and authorities indicating that his document should be taken as a motion to set aside the default judgment. Again, however, no supporting affidavits were filed. The motion was denied on Aug. 14, 1970. We need not now become involved in the issue whether the defendant’s default was premised on the excusable neglect of his counsel or whether the trial court abused its discretion in denying the defendant’s rule 60 motion to set aside the default judgment. Defendant had 30 days in which to appeal to this court from that decision. He did not do so. The issue of the default judgment must therefore be taken as settled in this case.

In Burnside v. Eastern Airlines, Inc., 519 F.2d 1127 (5th Cir., 1975), that court reached a similar result:

“Plaintiffs Burnside, Wooten and Hunter filed their initial complaint in this title VII employment discrimination suit on August 3, 1973. On January 18, 1974, the district court dismissed remaining plaintiff Burnside’s amended complaint for failure to respond to defendant’s motion to dismiss. At the same time, the district judge ordered that the cause be dismissed as a class action by reason of plaintiff’s failure to appear at a special hearing called to consider the appropriateness of proceeding with the class action. Almost seven months later, on August 8, 1974, plaintiff Burnside filed a Rule 60(b) motion for relief from the district court’s granting of the motion to dismiss. The district court denied plaintiff’s motion, and plaintiff failed to prosecute an appeal from that denial. After substitution of counsel, plaintiff filed a second Rule 60(b) motion for relief on January 23, 1975. Six days later the district court denied plaintiff’s second motion and plaintiff filed timely notice of appeal.
“The clear purpose of plaintiff Burnside’s second Rule 60(b) motion for relief from judgment was circumvention of the time limit for notice of appeal provided in Fed.R.App.Proc. 3(a) and 4(a). The proper course of action for plaintiff Burnside, at best, would have been to file a notice of appeal within thirty days of the district court’s granting of the motion to dismiss. At a minimum, the filing of notice of appeal in the district court after denial of the initial Rule 60(b) motion might well have afforded plaintiff some relief. Had plaintiff pursued the latter, appellate review would be limited to the district court’s exercise of discretion in denying the Rule 60(b) motion, and would not have extended to consideration of the motion to dismiss granted on January 18, 1974. Saenz v. Kenedy, 5 Cir. 1950, 178 F.2d 417, 419; Wagner v. United States, 2 Cir. 1963, 316 F.2d 871. The well-recognized rule, however, and that which comports with the time limit imposed by Rules 4(a) and 3(a), precludes the use of a Rule 60(b) motion as a substitute for a proper and timely appeal. Horace v. St. Louis Southwestern R. Co., 8 Cir. 1974, 489 F.2d 632; Hodgson v. United Mine Workers of America, 1972, 153 U.S.App. D.C. 407, 473 F.2d 118; Wojton v. Marks, 7 Cir. 1965, 344 F.2d 222; Demers v. Brown, 1 Cir., 343 F.2d 427, cert. denied, 1965, 382 U.S. 818, 86 S.Ct. 40,15 L.Ed.2d 64.

It is apparent that, as defendant failed to appeal from the entry of the default judgment or from the denial of his 60(b) motion, the issue of the default judgment must be taken as settled. Pulliam, supra.

At most, the “Motion to Reconsider” should be considered as a post-judgment motion, attacking the judgment of denial of the 60(b) motion, which was a final appeala-ble order. So considered, it was deemed denied, under Rule 59.1, ARCP, 90 days after it was filed, in absence of consent of all the parties, in the record, or unless extended by the appropriate appellate court, this court in this case. Under Rule 59.1, the motion was pending for more than 90 days on January 29, 1976; hence, any appeal from the denial of that motion should have been filed within 42 days after January 29, 1976.

Because the default judgment was entered prior to December 1, 1975, the effective date of the Alabama Rules of Appellate Procedure, the defendant had six months within which to appeal rather than the 42 days now provided. However, he did not appeal, but filed a 60(b) motion on August 18, 1975, apparently because more than thirty days had passed since the entry of the judgment by default. See Committee Comments to Rule 55, which reads:

“Rule 55(c) differs from the Federal Rule. It has no express reference to Rule 60, Relief From Judgment or Order, as does the Federal counterpart. This was eliminated in order to insure the court’s power to set aside a default judgment in thirty days in an instance where Rule 60 might not afford justification. No time limit is expressed with respect to an entry of default. Of course, Rule 60 becomes available when more than thirty days has passed since the entry of the judgment by default.”

The majority would also vacate a default judgment irrespective of the fact that the defendant failed to offer evidence of a meritorious defense to the action. The better view, I submit, would be to require some showing of a meritorious defense in cases of this sort. For example, in Vastavia Country Club v. Armstrong, 271 Ala. 294, 123 So.2d 130 (1960), this court cited with approval the law with respect to the setting aside of a judgment rendered without proper service:

“While a court of equity, or a law court acting under the four months statute— Section 9521 — will set aside a judgment rendered without proper service against a party to the suit, yet to secure such relief the aggrieved party must both allege and prove that he has a meritorious defense, and that he was prevented by surprise, accident, mistake or fraud, without fault on his part, from interposing such meritorious defense to the action. He is required to allege and prove a meritorious defense for the reason that it would be idle and useless to set aside a judgment, when, so far as it is made to appear, the judgment rendered was correct, and on another trial a like judgment would be rendered.”

Id. at 297, 123 So.2d at 133 (citations omitted).

In Trueblood v. Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D.Va.1963), District Judge Hoffman set forth the meritorious defense requirement as follows:

“Not only must there exist a good reason to set aside the default on the ground of ‘mistake, inadvertence, surprise, or excusable neglect,’ but the moving party must show that he has a meritorious defense to the action. The bare wording of Rule 60(b) does not require the showing of the existence of a meritorious defense but this is judicially established and apparently is left within the sound discretion of the trial court. Just as there are few guideposts as to what constitutes excusable neglect or inadvertence in any given case, there is no universally accepted standard among courts as to what satisfies the requirement that a party show a meritorious defense.”

32 F.R.D. at 196.

Where in this case the defect complained of was the failure to give the three days notice it should follow that the aggrieved party (the defendant) be required to show that he had a meritorious defense to the action. The cases cited by the majority to the contrary did not involve a second motion as here, to-wit: a motion to reconsider the denial of the motion to set aside the default judgment because of the failure to give three days notice.

Undoubtedly, the defendant’s first post-judgment motion to set aside the default judgment was a 60(b) motion, the denial of which would support an appeal. However, defendant’s second motion was not an attack on the default judgment itself, but was merely a motion requesting the trial court to reconsider its prior ruling on a 60(b) motion. Moreover, the second motion, even if considered as a 60(b) motion, presents for review the correctness of the order, not the correctness of the final default judgment. Coosa Marble Co., Inc. v. Whetstone, supra. Therefore, in cases of this sort, the appellate court should pay deference to the discretion of the trial court. On appeal, the appellate court should not set aside the trial court’s exercise of discretion unless it finds under the circumstances of the particular case the trial court abused its discretion. Hand v. United States, 441 F.2d 529 (5th Cir. 1971). Rule 55(c) ARCP clearly recognizes the discretion of the trial court as to the setting aside of a default judgment.

The majority reasons that Rule 1 ARAP which mandates that the rules be construed to assure the “just, speedy and inexpensive determination of every appellate proceeding on its merits” supports its result. But it can just as easily be reasoned that the decision of the majority will further delay the disposition of this action, be more expensive, and, since the appellant failed to show a meritorious defense, will not determine the matter on its merits. Justice Story’s apothegm states it succinctly:

“It is for the public interest and policy to make an end to litigation . . . ” so that “ . . . suits may not be immortal, while men are mortal.”

Ocean Ins. Co. v. Fields, 18 F.Cas. pp. 532, 539 (No. 10,406) (C.C.D.Mass.1841).

I would hold that the appeal was not timely filed and therefore should be dismissed. In the alternative, there being no showing that the trial court abused its discretion, I would affirm its decision.

MADDOX, J., concurs.

      “6 Fed.R.App.P. 4(a). The time for filing an appeal is not tolled by filing a set aside motion pursuant to rule 60.”

      “1 Plaintiff Burnside’s amended complaint of November 30, 1973, deleted Wooten and Hunter as plaintiffs and sought additional class relief for all past and present Black employees of Eastern Airlines.

      “2 Filing of notice of appeal within the 30 day time period specified in Rules 4(a) and 3(a) is mandatory and jurisdictional, and absent compliance, the appeal must be dismissed. Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 5 Cir. 1970, 435 F.2d 150; Knowles v. United States, 5 Cir. 1958, 260 F.2d 852, 854.”


source: Caselaw Access Project

author: MADDOX,. Justice.

license: Public Domain

text:
    Charles P. DOBBS and Beryl B. Dobbs v. S. T. HUFFSTUTLER.
    SC 2233.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    George S. Brown, Birmingham, for appellants. '
    W. L. Longshore, Jr., Birmingham, for appellee.
   MADDOX,. Justice.

Plaintiff, S. T. Huffstutler, sought specific performance, and in the alternative, damages, for a breach of a land sale contract made by defendants, Charles and Beryl Dobbs, husband and wife.

The facts are not complex. During January, 1975, the Dobbs told a realty broker that they wanted to sell their house. The Dobbs’ title is what is commonly referred to as a joint tenancy with right of survivor-ship.

Huffstutler inspected the Dobbs’ house, and after a period of negotiation, agreed to purchase it for $22,000. Both Charles and Beryl Dobbs signed the contract of sale and their signatures were witnessed. At closing, however, they refused to execute a deed. Huffstutler filed the instant suit.

The trial judge ordered the Dobbs to perform or, in the alternative, pay damages in the sum of $5,000 within thirty days. The Dobbs filed a motion for a new trial. The trial judge denied the motion and allowed the order for specific performance to stand. However, he did reduce the damages from $5,000 to $2,500.

In his order, the trial judge recognized that the decree of specific performance could be contrary to some old case law of this state. He found:

“. . . Surely the Supreme Court of Alabama, . . . could not have meant that in a particular situation such as is present in the instant case, under all the evidence, that simply because the subject real property was the homestead of the Defendants that an innocent party who dealt with the Defendants-sellers in good faith should be damaged because the sellers had a change of mind upon becoming convinced that the property was worth more than the agreed sales price.”

The issues presented are: (1) Whether a court of equity has the power to specifically enforce a contract for the sale of the homestead jointly owned by the husband and wife when the wife refuses to sign a deed of conveyance; (2) Whether the evidence justified the granting of specific performance; (3) Whether the amount of damages awarded alternatively was excessive.

On the first issue, the sellers rely heavily on Section 205 of the Constitution of Alabama, 1901, Title 7, § 626, Code of Alabama, 1940, and this Court’s cases of Jenkins v. Harrison, 66 Ala. 345 (1880); Lyon v. Hardin, 129 Ala. 643, 29 So. 777 (1900).

Section 205 provides:

“Every homestead not exceeding eighty acres, and the dwelling and appurtenances thereon, to be selected by the owner thereof, and not in any city, town, or village, or in lieu thereof, at the option of the owner, any lot in a city, town, or village, with the dwelling and appurtenances thereon owned and occupied by any resident of this state, and not exceeding the value of two thousand dollars, shall be exempt from sale on execution or any other process from a court; for any debt contracted since the thirteenth day of July, eighteen hundred and sixty-eight, or after the ratification of this Constitution. Such exemption, however, shall not extend to any mortgage lawfully obtained, but such mortgage or other alienation of said homestead by the owner thereof, if a married man, shall not be valid without the voluntary signature and assent of the wife to the same.”

Title 7, Section 626, provides:

“No mortgage, deed or other conveyance of the homestead by a married man shall be valid without the voluntary signature and assent of the wife, which must be shown by her examination before an officer authorized by law to take acknowledgments of deeds, and the certificate of such officer upon, or attached to such mortgage, deed or other conveyance, which certificate must be substantially in the form of acknowledgment for individual prescribed by section 30 of Title 47 of this Code.”

The purpose of Section 205 and Title 7, Section 626, Code, which require the voluntary signature of the wife, has been held to be that of safeguarding the wife from undue influence and duress of the husband. See Watkins v. Pennell, 285 Ala. 208, 231 So.2d 83 (1970); Weatherwax v. Heflin, 244 Ala. 210, 12 So.2d 554 (1943). If the main purpose of the constitutional and statutory provision is to safeguard a wife from duress of the husband, that purpose has not been thwarted here, because it is undisputed that the husband did not coerce his wife to sign the contract for sale. In fact, there is evidence from which the court could have found that the wife initiated the negotiations for the sale of the house.

The sellers contend that whether the husband used duress against the wife or not begs the question — that a contract to convey the homestead, even though she assents, is not a conveyance or alienation of the homestead and is ineffectual to transfer it. Jenkins and Lyon are authority, albeit old authority, for the sellers’ contention, at least, when a “married man” is the “owner” of the homestead. Both Section 205 of the Constitution and Title 7, Section 626, which require the assent of the wife refer to “owner” and “married man.” We could distinguish Jenkins and Lyon and say that both those cases involved situations where a “married man” was the “owner” of the homestead. However, we think that to distinguish this case on the fact that here the wife was part owner of the homestead would be making a distinction without a difference. Consequently, we hold that a valid executory contract to sell a homestead may be specifically enforced against a wife if she has voluntarily assented to the contract. Insofar as Jenkins and Lyon and cases of similar import are in conflict with this holding, they are hereby overruled. If we held otherwise, it would give a married woman a right to void a contract to sell the homestead which would be unavailable to men, single women and widowed women. To hold otherwise than as we hold would create an inequity, at least, and an unequal protection of the law, at most. Cf. Peddy v. Montgomery, 345 So.2d 631 (Ala.1977), where this Court struck down a state statute which classified marriéd women differently from men and unmarried women.

On issues 2 and 3, we find no error. The trial judge’s determination that the contract of sale was not unjust is supported by the evidence. Furthermore, his alternative award of $2,500 as damages for nonperformance of the contract is fair.

AFFIRMED.

TORBERT, C. J., and FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

BLOODWORTH and ALMON, JJ., concur in the result.


author: BEATTY, Justice.

text:
    Buddy Larry THORNE v. Margaret Jo Lollar ODOM.
    SC 2330.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      Harvey S. Jackson, Jr., of Tweedy, Jackson & Beech, Jasper, for appellant.
    Hugh D. Parris, Jasper, Charles E. Clark, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal under Rule 5, ARCP from an interlocutory order of the Circuit Court of Walker County which held that by virtue of the desertion of the father, the plaintiff-mother of a deceased child was the proper party under Title 7, § 118, Alabama Code, to bring this action for wrongful death. We reverse and remand with directions.

The plaintiff, Margaret Lollar Odom, filed a complaint on May 5,1976 under Title 7, § 119, alleging the death of her minor child, Gary Lollar, in an automobile accident on March 3,1976. She also alleged her previous divorce from Gary’s father; the award of custody of their three children, including Gary; the divorce decree which required their father to make “reasonable monthly support payments;” that these had not been made “as so required;” and that their father had not exercised the rights of visitation awarded to him in the divorce decree. Though she did not allege in so many words that the father had deserted his deceased child, the plain intendment of her allegations was to place her within the standing of a mother to maintain an action for wrongful death under Title 7, § 118, Alabama Code, viz.:

A father, or in case of his . . desertion of his family, . . . the mother may sue for an injury to a minor child, a member of the family.

A jury trial was demanded.

To this complaint the defendant Thorne filed a motion to dismiss alleging three grounds: (1) failure to state a claim upon which relief can be granted; (2) the action was not prosecuted in the name of the real party in interest; (3) the father is the proper party plaintiff. On the hearing of this motion testimonial evidence, depositions and exhibits were introduced, after which the trial court entered an order denying the motion on two grounds: (1) desertion by the father; and (2) the unconstitutionality of Title 7, § 118 by giving a preference to the father over the mother. In this situation, then, we will treat the motion to dismiss as a motion for summary judgment, see Rule 12(b), ARCP.

Initially, we hold that the trial court’s order declaring Title 7, § 118 unconstitutional was erroneous. Contrary to his finding, that statute does not give the father the absolute right over the mother to file such an action, but a conditional right as the remainder of our opinion will show. Additionally, we disagree that the statute imposes an arbitrary distinction. Under the Fourteenth Amendment to the United States Constitution, states may treat different classes of people differently when the classification rests upon a fair and substantial relation to the object of the legislation. Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975); Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The object of § 118 is to provide a right of action for the parent’s damages for loss of services, expense of treatment, etc. for the child's injury. Section 119, by the same token, allows a right of action in cases of wrongful death. The classification imposed by § 118 is not arbitrary, because the legislature has recognized that, between the two parents, the father has the primary and continuous duty to support and maintain his minor children reasonably according to his means. Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974); Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Stovall v. Johnson, 17 Ala. 14 (1849). This continuing obligation gives the father the priority in receiving any damages because of the injury or death of the child.

The threshold question is whether the evidence presented to the trial court made a material factual issue of the father’s alleged desertion upon which reasonable persons might differ. A summary of the evidence follows:

Gary Clay Lollar, father of the deceased child, testified that he was thirty-two years old, lived in Jasper, and presently employed by Alabama By-Products, Mary Lee No. 1, Gorgas (a coal mine). He and the plaintiff were married at one time and had three children whose ages at the time he and plaintiff were divorced, were five, four and two. Their divorce decree (dated May 22, 1972) was admitted into evidence and disclosed the ground of their divorce to have been incompatibility. It provided for his visitation with the three children at reasonable times and places, and the payment by him to plaintiff of “a reasonable sum of money for the support and maintenance of said children; and if the parties cannot agree on a reasonable sum, the Court retains the jurisdiction to set such. . . . ”

According to plaintiff's former husband, he and plaintiff reached an agreement on a reasonable sum (as provided in the decree). He agreed to pay plaintiff fifty dollars every two weeks, and began these payments in 1973, first in cash and thereafter by check. There is evidence of forty-one checks, issued from March 15, 1975 to August 27, 1976, each in the amount of fifty dollars except for five: one for five dollars, two for three dollars, one for fifty-six dollars, and one for fifty-five dollars. At the time of the child’s death, Gary was making the fifty-dollar support payments every two weeks for the three children. He also testified that he bought the children’s clothes year round, and purchased a TV set for them in 1973. He would visit the children on Friday and when school was out he would take them home with him to spend the night. He visited with the children on Christmas and bought them Christmas and birthday gifts. On the deceased child’s last birthday he took him to town, bought him something for his birthday, and got something to eat. After his former wife remarried in 1974 or 1975 he did not visit the children in the plaintiff’s home as much because he did not get along with her new husband.

He described some of their early married life, where they lived, his various occupations, their separations, and his continued contributions to the children’s support. He described his visits to see the children at the plaintiff’s home when they were not available, and his visits to their school and talks with their teachers to determine their school needs. He visited them over thirty times a year, carried them to various places, and had carried groceries to them.

Several witnesses testified on behalf of the plaintiff. Her brother, Richard Jones, stated that after plaintiff and Gary Lollar separated the children needed clothing, most of which they obtained from plaintiff’s family. It was his testimony that Lollar did not visit or take care of the children after the divorce, but he did not know whether Lollar visited when he was not at their home.

The plaintiff herself also described their marital past, their moves, their separations, and her former husband’s contributions to the children’s support which, she stated in March or April of 1972 was nothing. The record of her testimony is unclear regarding the sums of money contributed by Lollar and the specific periods of time; however it does establish that when they separated for the last time he was contributing thirty dollars each week for the support of herself and her children, and later reduced that to twenty-five dollars per week because he said he had switched jobs and didn’t make as much money. She also stated that he had not paid support for six months at the end of 1972, although he was contributing after she remarried.

She did not know the amount Lollar was making at the mines but that when she asked him about it he said he didn’t make any more than he was [had been] making. She did not know of Lollar providing school supplies. She acknowledged his purchase of shoes on an occasion, but he contributed nothing other than the fifty dollars which he had been paying every two weeks for the children since January or February of 1974.

The plaintiff admitted that in a deposition she had given previously her statement that Lollar had agreed, and they had come to an understanding, on a reasonable amount of child support, and that their understanding meant that he would paya hundred dollars a month. He lived up to it since January, 1974, right up to the time the little boy was killed. She also testified that their agreement for support called for Lollar to pay her one-half of what he made for the support of the children. Her two depositions were introduced into evidence. It will suffice here to state that these, together with her testimony in open court, conflict with regard to the terms of their agreement and the amount of support actually paid or extended by Lollar to the children. As already indicated, the matters of his visitations and attentions to the children were also disputed.

The legislative language of Title 7, § 118, which makes the right of the mother expressly subject to the conditions named, has been the subject of several previous judicial interpretations. See, for example, Southern Ry. Co. v. Carlton, 218 Ala. 265,118 So. 458 (1928); Ex parte Roberson, 275 Ala. 374, 155 So.2d 330 (1963); Adkison v. Adkison, 286 Ala. 306, 239 So.2d 562 (1970). In each of these the court has concerned itself with the meaning of the term “desertion” as used in the statute. On that point this Court in Carlton stated:

The term ‘desertion’ may have a legal meaning somewhat modified by its context in the statute. As here used, the question of maintenance and support of the family within his reasonable means is of manifest, if not controlling, importance, on the issue of desertion.

In Roberson, this Court referred to Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88 (1947), which stated that in an action for wrongful death of a child leaving a surviving father, the suit “should be brought by the father ‘unless the father has by desertion . . . ceased to perform the parental duty of maintenance . . . ’ under Title 7, Sec. 118.”

Adkison is the latest case to come before this Court on the question, and in that case this Court equated “desertion” with “abandonment”:

* * 1 Abbott’s Dictionary of Terms and Phrases defines ‘abandonment’ as the relinquishment, surrender, or disclaimer of one’s rights, and says: ‘But the surrender of a relation, involving as it does the disclaimer of duties more prominently than that of rights, is better styled desertion,’ and defines ‘desertion’ as ‘the abandonment of a relation or service in which one owes duties; the quitting, wilfully and without right, one’s duties; the withdrawal, unexcused, from the obligations of some condition or status.’ ” ’

It also perused the meaning of “voluntary abandonment” as used in Watkins v. Kidd, 261 Ala. 463, 464, 75 So.2d 87, 88:

‘ * * * To constitute voluntary abandonment, authorizing a decree of divorce, there must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return. . .’

The Adkison court, specified the applicable test as whether the desertion “existed at the time of the death of the minor, regardless of whether a state of desertion existed at sometime prior thereto.” Ibid, 286 Ala. at 309, 239 So.2d at 565. And whether that state of desertion existed, according to that Court, would be determined by the conduct of the father. Quoting from Vol. 1, Am. Jar., Adoption of Children, § 42, the opinion states:

‘We do not construe the conduct of the father to evince a settled purpose to fore-go all parental duties and relinquish all parental claims to the child. The father’s failure to comply with the order for support of the child, under the circumstances here presented, and his failure to visit the child under existing misunderstandings in the family, does not in our judgment, constitute abandonment within the purview of Section 3, Title 27, Code of 1940.’

Is the evidence upon which the trial court based his order without dispute on the issue of desertion? We think not. According to the defendant’s evidence, the former husband was complying with the support agreement made with the plaintiff, his former wife, which agreement had the sanction of their divorce decree. His evidence of gifts to the children, including the deceased child, together with his reasons for his reduced visitations, placed in issue the question of any settled purpose on his part to abandon his parental duties. The payment of support, as stated in Carlton, is of manifest importance on the issue of his “abandonment” or “desertion.” Whether the amount he paid comported with their agreement, or was so insufficient, with the other circumstances, as to constitute abandonment of his parental duties, is a disputed matter upon which reasonable persons might disagree. The fact of the father’s working in the mines, and the fact that his support payments equated $1.19 per child per day, while perhaps demonstrating some degree of disregard for their welfare, as well as raising questions concerning the minimal level of subsistence, would not conclusively establish desertion when compared with the other evidence. There is no direct evidence in the record on the amount of Lollar’s earnings from the mine, or upon the regularity of his employment. For all we know, his support payments may be “reasonable” according to his circumstances.

We conclude that a genuine issue of material fact was presented on the issue of desertion, and it was error, therefore, for the trial court to deny the defendant’s motion to dismiss which was tantamount to a summary judgment on that issue. First National Bank of Birmingham v. Culberson, 342 So.2d 347 (Ala.1977); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975); Rule 56(e), ARCP; 6 Moore’s Fed. Prac., par. 56.15 (2nd ed. 1971).

It is clear that one or the other of these parents has the necessary standing to maintain this action. If it later develops that the father has the standing, a jury trial prosecuted solely by the mother would be of no avail and would raise serious questions of res judicata on the entire cause of action. If the mother is the proper party, nevertheless her standing as such should be decided as any other fact in dispute, without regard to any issue of liability regarding the alleged accident.

Under his motion to dismiss the defendant contends that the father is the proper plaintiff. Having found that this is an unresolved factual issue, we also recognize that the action should be “prosecuted in the name of the real party in interest”; indeed should the father have been found to be the proper parent, the trial court could not have dismissed the action. Rule 17(a), ARCP.

Accordingly, we believe the proper course of action is for this case to be remanded to the circuit court in order to allow the defendant to join the father as a party-plaintiff should defendant desire to follow that course of action. Rule 19(a), ARCP. Or the father may wish to join as a party-plaintiff on his own initiative. Such a procedure will serve to preserve the cause of action for whichever of the parents is later able to sustain the standing to maintain the action, while at the same time preserving the defendant against any risk of incurring a double or inconsistent obligation because of his claimed liability. A reasonable time for such a joinder shall be allowed by the trial court for any such action, under Rules 17(a) and 19(a), ARCP.

Should any such joinder occur, and in order to resolve standing as an interlocutory issue, the trial court, at the instance of one of the parties or upon its own initiative, may sever the issue of standing for resolution before proceeding to the merits of the alleged liability of the defendant. Rule 42(b), ARCP, allows the latter procedure.

REVERSED AND REMANDED WITH DIRECTIONS.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


author: BLOODWORTH, Justice. TORBERT, Chief Justice

text:
    Carolyn H. ALFORD, Individually, etc., et al. v. CITY OF GADSDEN, a Municipal Corporation.
    SC 2342.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Sept. 30, 1977.

      James L. Shores, Jr., Birmingham, Buford L. Copeland, George C. Hawkins, Gadsden, for appellants.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   BLOODWORTH, Justice.

Defendants, Carolyn Alford, et al. appeal from a directed verdict in favor of the City of Gadsden in a declaratory judgment action in which the Court voided a concession stand lease. We reverse and remand.

In 1964, the City of Gadsden advertised for bids to lease the concession stand at Noccalula Falls Park. Jack W. Alford was the successful bidder at $100 per month.

On April 7, 1964, the city, by ordinance authorized a written, five-year lease with Alford to be dated April 1, 1964, authorizing him to operate the concession facility, which is now called “Noccalula Nic Nac” in Noccalula Falls Park and is a public park owned by the city. The lease contained an option to renew for an additional five-year term. The lease also contained a provision stating that the lessee would have the privilege of negotiating for another lease period at the end of the ten-year term of the lease. On December 1, 1964, the City Commission approved a five-year extension of the lease, beginning November 1, 1969. The rent of $6,000 was prepaid. In 1965, Mr. Alford was killed. The city approved Mrs. Alford’s sublease to one Clark Lewis and James Kilgo on April 18, 1969. By resolution dated September 18,1970, the City Commission extended the 1964 lease for an additional five-year term from October 1, 1970, through September 30, 1975. By resolution dated March 1, 1974, the original lease was once more extended to September 30, 1980. This last resolution was not signed in the name of the city but was signed by the mayor and two commissioners, purporting to act for the city. The resolution stated that Carolyn Alford had paid $6,000 in advance to the city as rent for the five-year extension period to 1980.

The City of Gadsden brought this action for declaratory judgment, in the Circuit Court of Etowah County, contending inter alia, that the lease was invalid by reason of the city’s failure to comply with Tit. 37, § 477(2), and that neither Mrs. Alford, as executor of her husband’s estate, nor defendant Clark Lewis, her sublessee, had any right to possession of the property. In their answer, defendants asserted, inter alia, that the lease was valid and that the city was estopped to deny its validity, since they had relied to their prejudice upon the action of the city in renewing the lease. Defendants also included a counterclaim for damages.

At the conclusion of the evidence, the city’s motion for a directed verdict was granted. In its final judgment the court held, inter alia, that the April 1, 1964, lease expired on April 1, 1974; that the March 1, 1974, resolution which attempted to extend the lease was null and void; that the city is entitled to possession of the concession stand; that defendant Clark Lewis must pay all rents under the sublease to the city; that defendants were not entitled to recover damages asserted in their counterclaim. The judgment was later amended to tax costs. Defendants’ motion for a new trial was overruled, hence this appeal.

Appellants (defendants below) make several contentions on this appeal. First, they contend that the concession facility is located on property needed “for public or municipal purposes” and, therefore, Tit. 37, § 477(2), ante, is inapplicable. Consequently, appellants argue, an ordinance authorizing the extension of the lease is unnecessary and a resolution will suffice. Appellants then contend that even if an ordinance was required, the city is estopped to deny the validity of the lease, since it has already accepted $6,000 in rental payments for the term ending September 30, 1980, and since appellants have spent $8,500 in improvements. Appellants finally contend that the trial court erred in granting the city’s motion for directed verdict, since factual issues remain to be resolved by the jury with regard to estoppel.

Appellee (city) contends that the resolution attempting to extend the lease was improper for two reasons. First, the city argues that Tit. 37, § 477(2), ante, explicitly requires an ordinance instead of a resolution. Second, it argues that even if a resolution were proper, this one would be invalid because it fails to comply with the mandatory provisions of Tit. 37, § 467, infra. Third, the city contends that it is not es-topped to deny the validity of this purported contract, since it is not a contract at all.

Tit. 37, § 467 provides:

“467. (1899) (1183) Contracts of municipalities; how executed. — Contracts entered into by a municipality shall be in writing, signed and executed in the name of the city or town, by the officers authorized to make the same, and by the party contracting. In cases not otherwise directed by law, or ordinance, such contracts shall be entered into and executed by the mayor in the name of the city or town and all obligations for the payment of money by the municipality, except for bonds, and interest coupons, shall be attested by the clerk. This section shall not be construed to cover purchases for the ordinary needs of the municipality.”

Tit. 37, § 477(2), provides:

“§ 477(2). Lease of unneeded real estate. — The governing body of any city or town in this state may, by ordinance to be entered on its minutes, lease any of its real property, not needed for public or municipal purposes, and a lease made by the mayor in accordance with such ordinance shall be binding for the term specified in the lease, not to exceed a period of ninety-nine years; provided that in counties having a population of not less than 225,000 and not more than 400,000 inhabitants, according to the last or any subsequent federal decennial census, such limitation of the term to a period of ninety-nine years shall not apply to any oil, gas or mineral lease made in accordance with such ordinance. (1953, p. 1135, § 2, appvd. Sept. 19, 1953; 1957, p. 574, appvd. Sept. 5, 1957.)”

It is, of course, the general rule that a city cannot lease, for private purposes, property which is already held for public use and which is being devoted to public use, without specific statutory authority therefor. Anderson v. Adams, 291 Ala. 523, 283 So.2d 416 (1973); City of Bessemer v. Huey, 247 Ala. 12, 22 So.2d 325 (1945).

On the other hand, it is established law that, “The park authorities ordinarily are empowered to permit, by lease, license, or similar arrangement, the establishment within the confines of a park of places for furnishing food and beverages, or other refreshments, and to grant privileges and concessions for conducting within the park those transactions which are customarily associated with public use and enjoyment of parks and park properties.” 10 McQuillin, Municipal Corporations, § 28.53, pp. 185-86.

We do not believe these two propositions conflict, for the first generally speaks to the power of the city to lease property which is needed for public purposes' for a term of years, while the latter statement of law pertains to a city’s lease of only a very small portion of a larger tract of the property devoted to the public use, as here.

Thus, we think it clear that the city had the general authority to execute a lease for this concession stand in the public park.

We pretermit the city’s first two contentions and move to a consideration of the third issue — estoppel—and to a consideration as to whether the directed verdict was proper. In order to reach these issues, we assume, without deciding, that an ordinance is required to extend the lease (Tit. 37, § 477(2)) and that the contract is required to be executed in the name of the city by the mayor (Tit. 37, § 467).

Appellants contend that appellee is es-topped to deny the validity of this contract, since appellee has accepted $6,000 in advance rental payments for the term. Ap-pellee’s response is that it cannot be es-topped by a contract that it did not execute.

The doctrine of estoppel is rarely applied against a municipal corporation, but it may be applied in a proper case. See, e. g., City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967); Powell v. City of Birmingham, 258 Ala. 159, 61 So.2d 11 (1952); Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159 (1936).

A municipality cannot be estopped from questioning the legality of a contract into which it had no authority to enter. City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975). Nor, may the doctrine of estoppel authorize a city to do that which it has no authority to do. Id.; Board of School Commissioners of Mobile County v. Hudgens, 274 Ala. 647, 151 So.2d 247 (1963).

There is another instance in which our Court has held that the doctrine of estoppel cannot be applied against a city. In City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816 (1919), this Court held, over a vigorous dissent, that a city cannot be estopped to deny a contract into which it did not legally enter.

In City of Mobile, supra, a resolution was not signed in the name of the city but was signed by the commissioners purporting to act for the city. This Court held that there was neither substantial nor attempted compliance with “one of the most important and mandatory requirements of section 1183 of the Code.” (This section is now Tit. 37, § 467.) Id. at 579, 84 So. at 820.

It appears that no other Alabama case supports this proposition; nor is it the law elsewhere. Although the opinion in City of Mobile cites the McQuillin text and two cases from foreign jurisdictions, these cases and the text do not directly support this proposition.

In view of the fact that this ease has not been followed elsewhere, that it has not been followed in Alabama and that the cases and text which are cited as authority do not support the proposition, we hereby overrule City of Mobile, insofar as it holds that the city cannot be estopped to deny the contract executed by its commissioners.

Given this, we think the trial court's directing a verdict for appellee constituted reversible error pursuant to ARCP 50(a).

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the directed verdict, the directed verdict is properly refused. Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

In determining the propriety of granting a motion for directed verdict, the court must indulge every inference in favor of the nonmoving party. Ford Motor Company v. Rogers, 327 So.2d 736 (S.Ct.Ala. 1976); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

In this case, appellants have interposed the defense of estoppel. As we so recently held, estoppel is generally a mixed question of law and fact. Imperial Group, Ltd. v. Lamar Corporation, 347 So.2d 988 (S.Ct.Ala.1977); Humphrey v. Boschung, 287 Ala. 600, 253 So.2d 769 (1971).

Given the rule that estoppel, generally, is a mixed question of law and fact; and, given the facts that appellants have spent $8,500 in improvements on the property and that the city has accepted $6,000 in advance rental payment from Mrs. Alford, we find that there is sufficient evidence for the submission to the jury of the issue of appellants’ estoppel defense.

“This court has consistently held that, where there is conflicting evidence, it is the jury’s function to pass on that evidence and any inference to be drawn therefrom; and that it is improper to direct a verdict for either side where conflict in the evidence exists. Loeb and Co., Inc. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976).” Hill v. Metal Reclamation, Inc., a corp., et al., 348 So.2d 493 (Ala.1977).

Therefore, a directed verdict was improper, and this case is due to be reversed and remanded for a new trial.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., dissents.

SHORES, J., recuses herself.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent.

The statutory requirements for execution of municipal contracts as set out in Tit. 37, § 467, are mandatory and should be strictly complied with. Council v. City of Dothan, 236 Ala. 166, 181 So. 293 (1938). The statute provides that the contract be in writing, that it be executed in the name of the city by the officers authorized to make such contracts, and that it be signed by the other party contracting. The “resolution contract” in the present case fails to comply with the statute in two respects, i. e., the contract was not signed in the name of the City of Gadsden and it was not signed by appellant Carolyn H. Alford. In Garner v. State, 229 Ala. 600, 158 So. 546 (1934), this court stated the following concerning municipal contracts:

“A contract with the city must be executed and authorized as directed by law to be legal. If not thus done, it is non est factum.”

Id. at 601, 158 So. at 547 (citation omitted).

In light of this analysis, I feel that the majority incorrectly overrules City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816 (1919). The present case is factually similar to City of Mobile. That case also involved a resolution which was signed by commissioners but which was not signed in the name of the City of Mobile. This court held that the City of Mobile could not be estopped to deny this contract as it failed to substantially comply with statutory requirements for the execution of municipal contracts.

I find no distinction between the case presently before this court and City of Mobile. Therefore, I would hold that the City of Gadsden cannot be estopped to deny the “resolution contract” as the City of Gadsden did not legally execute this contract.


author: EMBRY, Justice.

text:
    Shirley L. MYERS v. Lois C. PARKER, as Administratrix of the Estate of Channell C. Parker. In re the ESTATE of Channell C. PARKER, Deceased.
    SC 2345.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      Robert C. Barnett, Birmingham, for appellant.
    Aubrey O. Lammons, Huntsville, for ap-pellee.
   EMBRY, Justice.

This is an appeal from a judgment entered in the Circuit Court of Madison County in the Estate of Channell C. Parker, Deceased. That judgment included the grant of the application of Lois C. Parker, the Administratrix, to sell lands of the decedent for the payment of lawful charges against the estate on the basis that its personal properties were insufficient to pay those charges.

The basic question for review is whether that judgment, based on evidence taken ore tenus, was fairly supported by credible evidence and not clearly erroneous or manifestly unjust. We answer yes, and affirm.

On 6 September 1973, Lois Parker filed a petition in the Circuit Court of Madison County, Alabama, alleging:

“1. On the 26th day of May, 1970 your Petitioner, Lois C. Parker, was duly appointed Administratrix of the Estate of Channell C. Parker, deceased.
“2. Thereafter, Petitioner did proceed to collect up all of the assets of said estate. That pursuant to the orders of this Honorable Court she has disbursed all personal properties to the lawful heirs and next of kin.
“3. That said decedent, at the time of his death, was the owner of the following described real estate, to-wit:
“The southeast quarter of the southwest quarter of Section 17, Township 5, Range 21, Coffee County, Alabama, and 10 acres, more or less, being that part of the northeast quarter of the northwest quarter of Section 20, Township 5, Range 21, Coffee County, Alabama, which lies north of U.S. Highway 84; said lands containing altogether 50 acres more or less.
“4. That at the time of death of decedent, the above described real estate was encumbered by a first real estate mortgage owned by the Administrator of Veterans Affairs. During your Petitioner’s administration of said Estate she has paid the debt due the Veterans Administration, the interest accruing thereon, taxes, insurance and repairs totalling $4,254.80. Said entire debt has been paid by your Administratrix out of her own personal funds in order to prevent the loss of said property.
“5. Petitioner now desires that said estate be closed, all costs of administration paid and the Administratrix discharged from all other and further liability for and on account of said administration. There is, however, insufficient personal property with which to pay the expenses incurred by your Administratrix in administering this estate and in preserving said property for the benefit of the heirs of decedent.
“6. Heirs and next of kin of said decedent are as follows:
“Lois C. Parker, widow of decedent, over the age of 19 years, of sound mind and residing at 407 Drummond Road, Huntsville, Alabama, 35801.
“Channell Ted Parker, also known as Hoyt Ted Barnett, son of decedent, over the age of 19 years and of sound mind, whose address is 319 Avenue Northeast, Birmingham, Alabama, 35212.
“Shirley L. Myers, daughter of decedent, over the age of 19 years and of sound mind, whose address is 805 Briar-cliff Road, Gastonia, North Carolina, 28052.
“7. Petitioner would respectfully represent and show unto this Honorable Court that it will be necessary to sell the lands hereinabove described for the purpose of paying the costs and expenses of administration.
“WHEREFORE, the premises considered, Lois C. Parker, as Administratrix of the estate of Channell C. Parker, deceased, prays that this Honorable Court will set this petition down for hearing and upon a hearing being held on this petition that this Honorable Court will determine a fair, reasonable and just compensation to be paid to your Petitioner, for having served as Administratrix of said estate, and will determine the amount of reimbursement due and owing to your petitioner for expenditures which she had made on behalf of said estate; that this Honorable Court will order the herein described real estate sold for the purpose of securing sufficient funds to pay the debts of said estate and for division or proceeds in accordance with law; that this Honorable Court will grant such other, further and different relief and will enter such other, further and different orders and decrees as unto this Honorable Court may seem just and proper.”

The substance of the answer of Shirley L. Myers, one of Channell C. Parker’s heirs at law and the appellant here, admitted that Lois C. Parker had been appointed adminis-tratrix; denied that she had collected all the assets of the estate; denied she had disbursed all the personal property to the lawful heirs and next of kin; denied she was entitled to reimbursement for the payment from her own funds of a mortgage indebtedness on the lands of decedent; denied there was insufficient personal property to pay any expenses of the estate lawfully incurred by the administratrix; asserted that she could not be reimbursed for payment of any monies in behalf of the estate because she was barred by the statute of nonclaims; claimed the administratrix had converted assets of the estate to her own personal use, and had not made a proper accounting of the assets of the estate. The answer contained other allegations which are irrelevant to this appeal. On trial of this action Myers took the position that Lois Parker was not the administratrix of the estate because there was extant an order of the probate court revoking her letters of administration.

The trial court heard the evidence without a jury, after which the following findings and judgment were entered:

“This action coming on to be heard was submitted to the Court on the Petition of Lois C. Parker, as Administratrix of the Estate of Channell C. Parker, the answer of Shirley L. Myers and the testimony and evidence submitted in open Court. The Court having considered the same finds that:
“A. The Estate of Channell C. Parker is insolvent in that the personal properties are insufficient to pay the lawful charges against said Estate; and
“B. That Lois C. Parker should be reimbursed for the amount paid by her to the Veterans Administration for principal and interest, on the promissory note executed by decedent, and the funeral expenses of decedent paid by her; and
“C. That more than thirty days elapsed between the filing of said Petition and the hearing thereon; and that notice was duly given and published as required by law.
“D. That the following described real estate, owned by decedent at the time of his death, should be sold to pay the charges against said estate, to-wit:
“The southeast quarter of the southwest quarter of Section 17, Township 5, Range 21, Coffee County, Alabama, and 10 acres, more or less, being that part of the northeast quarter of the northwest quarter of Section 20, Township 5, Range 21, Coffee County, Alabama, which lies north of U. S. Highway 84; said lands containing altogether 50 acres more or less.
“It is therefore, ORDERED, ADJUDGED and DECREED by the Court as follows:
“1. The application of Lois C. Parker, as Administratrix of the Estate of Chan-nell C. Parker, to sell the herein described lands, is hereby granted and the said Ad-ministratrix is hereby ordered to sell said lands at the Coffee County, Alabama Courthouse door, in Enterprise, Alabama, at public outcry, after first giving notice of the day, place and time of said sale, and a description of the property to be sold, by advertisement for three (3) successive weeks, in the Daily Ledger, a newspaper of general circulation in said county. '
“2. The terms of sale shall be ten per centum (10%) of the amount bid, payable on the date of the auction sale and the remaining balance at the time of closing of the transaction, which shall not be more than thirty (30) days following the date of the auction.
“3. Lois C. Parker, as Administratrix, shall within fifteen (15) days following the auction of said lands, file with the Court a report on the details of the sale.
“4. Lois C. Parker, as Administratrix of said Estate, shall report all proceedings to the Court no later than forty five (45) days following the date on which said auction shall be conducted.
“5. Funeral expenses in the amount of $2,584.07, and payments on decedent’s promissory note to the Veterans Administration, in the amount of $3,928.80, both paid by Lois C. Parker, are lawful charges against the Estate and the Ad-ministratrix may lawfully reimburse the said Lois C. Parker.
“6. Lois C. Parker, as Administratrix of the Estate of Channell C. Parker, shall file with this Court a final accounting upon said estate within fifteen (15) days after receipt by her of the proceeds re-suiting from the sale of the lands herein described.”

On this appeal, Myers urges the following grounds for reversal:

1. The trial court lacked jurisdiction of Parker’s petition because she had been removed as administratrix by the probate court prior to filing the petition.

2. The estate was, in fact, solvent because the monies expended by Parker in behalf of the estate had not been made the subject of claims filed within six months after grant of letters of administration to her.

3. Parker did not prove by a disinterested witness that the personal property of the estate was insufficient for the payment of debts.

There is no need to cite authority to support the recognized rule of law in Alabama that where, as here, the evidence is taken ore tenus there is a presumption of correctness in favor of the findings of the trial court which will not be disturbed on appeal unless palpably wrong or without supporting evidence. With this in mind, we turn to appellant’s contentions.

Myers contends Parker’s letters of administration were revoked on 4 February 1972, after she failed to file an inventory pursuant to an earlier order of the probate court. That contention is without merit. Although the order stated that Parker’s letters were revoked, the record clearly shows in subsequent orders of the same judge of probate, Parker was still considered administratrix of the estate; and an inventory was later filed and duly recorded in that court. Moreover, the parties litigant in these proceedings treated the matter as though there had been no revocation of her letters and the record is devoid of evidence that a citation was issued to Parker to appear and answer an application for her removal as administratrix pursuant to Tit. 61, § 182, Code.

Myers concedes the expenses owed for the funeral; however, she strongly argues Parker’s claim for the mortgage debt is barred because the claim was not filed in the probate court in accordance with Tit. 61, § 210, Code (claims of personal representatives not filed within six months of grant of letters are barred). That section contemplates that the relationship of creditor and debtor exist between the personal representative and the estate for there to be a claim against the estate. The equitable right to reimbursement arising from the payment of the mortgage indebtedness by the widow to protect her interest (dower) in the real estate is not within the purview of § 210. That right is not the subject of a claim against the estate but rather a claim to an interest in, or part of, the estate. See Gilbreath v. Levi, 270 Ala. 413, 119 So.2d 210 (1959), and authorities therein.

Myers’ third ground for reversal is that there was no proof that the personal property of the estate was insufficient for the payment of debts and the proof offered was not by a disinterested witness. She says that § 253, Tit. 61, Code, which gives the court power to order a sale of realty only if it is satisfied the personal property is insufficient for the payment of debts, cannot be operative where the only proof is by the administratrix who is clearly an interested party. Conceding, for the sake of argument, that Parker is an interested witness does not result in the trial court being in error for taking proof from her about the insufficiency of personal property for the payment of debts. There was no objection to her competency as a witness, thus her incompetency was waived. Curtis v. Hunt, 158 Ala. 78, 48 So. 598 (1901). The evidence regarding the sufficiency of the personal property to pay debts of the estate was conflicting with regard to what was, and was not, personal property of the estate. There was ample evidence to support the trial court’s conclusion that the personal property of the estate was insufficient to pay its debts; therefore, the judgment ordering sale of the real estate is due to be affirmed as we cannot find from the record wherein it was either erroneous or manifestly unjust. White v. Sims, 295 Ala. 244, 326 So.2d 733 (1976).

AFFIRMED.

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


text:
    William L. GRIBBLE et al. v. John COX et al.
    SC 2355.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Francis H. Hare, Birmingham, for appellants.
    Jack B. Porterfield, Jr., Birmingham, for appellees.
   EMBRY, Justice.

This is a joint appeal by plaintiffs William Leonard Gribble and wife Joan Gribble from separate judgments in favor of defendants John Douglas Cox and Arthur Anderson and Company in separate actions by the Gribbles against Cox and Arthur Anderson and Company that were consolidated for purposes of trial. The amount sued for by each of the Gribbles was in excess of ten thousand dollars, exclusive of interest and costs, therefore the joint appeal to this court will lie.

The action of Gribble was for damages on account of personal injuries and property damage and that of Mrs. Gribble was for the loss of consortium and services of her husband on account of his injuries; claimed to be a result of the negligence of Cox when he ran into the rear of Gribble’s auto while the latter was stopped for a traffic light.

For the reasons we will state, the judgments must be reversed and the actions remanded.

The issues tried below were correctly summarized in defendants’ counsel’s opening statement to the jury:

“ * * * Mr. Gribble had stopped by the light and we don’t deny he was there on that occasion and we don’t deny the front of Mr. Cox’s car struck the rear of Mr. Gribble’s car but we deny the nature and extent of the injuries that Mr. Gribble says that he has suffered as a result of this accident.”

The contention of Gribble was that he suffered serious and permanent injury and disability as a result of his auto being struck from the rear by Cox’s auto. He presented expert medical testimony to support his claim; from that testimony it can fairly be said, without disagreement, that prior quiescent physical conditions of Gribble were awakened and became symptomatic or prior ailments were aggravated. Undisputed proof was offered by Gribble of a small amount ($214) of damage to his auto.

Defendants contend that Gribble suffered no injury whatsoever as a result of the accident; either by the awakening of quiescent conditions, aggravation of prior existing debilities, or otherwise. No expert medical evidence was offered to support this other than by cross-examination of plaintiff’s experts and a showing that on the day of the accident Gribble made no complaint of injury. The principal thrust of defendant’s case was that Gribble was a malingerer, motivated to be disabled and remain so, in order to receive a pension from his employer together with Social Security disability benefits. In support of their theory of Gribble’s motive to be disabled, defendants caused to be admitted, over objection, evidence that Gribble was receiving disability payments from collateral sources: his employer and the Social Security Administration.

The issues presented for review by this appeal are:

1. Whether the trial court committed reversible error by admitting evidence that Gribble received payments from a collateral source.

2. Whether the trial court erred in denying Gribble’s motion for new trial on the ground that the verdict was against the great weight of the evidence as to liability of defendants and as to Gribble suffering bodily injury as a result of the accident.

Admission of Evidence of Collateral Benefits Payments

Defendants agree with plaintiff about the collateral source rule stated in 22 Am.Jur.2d, Damages, § 206:

“ * * * [A]s a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account in computing damages. * * * ”

Defendants attempt to distinguish this court’s decision in Vest v. Gay, 275 Ala. 286, 154 So.2d 297. There it was said:

“ * * * Appellants concede that proof that an insured has been compensated for a loss by an indemnity insurer is generally not material and is inadmissible, but appellants here urge it should be admissible as having a direct bearing upon the issue of appellee’s injuries, especially since appellee allegedly may be malingering or faking illness. While this argument is somewhat ingenious, we cannot deviate from the settled rule in our jurisdiction and declare this to be a proper purpose to enable admission into evidence of the fact of indemnity insurance. Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537; Long v. Kansas City, M. & B. R Co., 170 Ala. 635, 54 So. 62. A strong analogy supporting this conclusion is found in Phoenix Ins. Co. of New York v. Leonard, 270 Ala. 427, 119 So.2d 217. The same contention was there made but rejected. To accede to appellants’ argument would tend to either emasculate the rule or render it unworkable.” (emphasis added)

Defendants say that benefits received from a source wholly independent of the wrongdoer should not be taken into account in computing plaintiff’s recoverable damages; such evidence is not relevant, its existence renders neither more probable nor less probable any material fact in the case. They are absolutely correct. However, they are incorrect when they say that where the purpose of such evidence is not to reduce damages but to show that plaintiff’s disability is not as extensive as claimed, and that he possesses a motive quite independent of his alleged injuries for exaggerating the extent of his disability, the evidence is relevant.

The reason underlying the exclusion of collateral source payments is that, weighing the prejudice to plaintiff from admitting that evidence against its value and weight to prove motive or malingering, its exclusion is warranted by the availability of better, less prejudicial evidence on this issue. An excellent discussion of this subject is cited by Gribble and found in 47 A.L.R.3d at p. 238. This court is committed to the rule of exclusion of collateral source payments. Vest v. Gay, supra. In this case there was other evidence available on the issue of motive that would not prejudice plaintiff by its admission; the admission of collateral source payments was prejudicial and the court erred to reversal in admitting evidence of them. This case is not distinguishable from Vest.

Weight of the Evidence

We need only to address this issue as it relates to liability. This for the reason that if the verdict was against the weight of’the evidence as to the liability of defendants to Gribble it follows that he was entitled to a verdict for the undisputed amount of damage to his auto.

What did defendants concede by admitting that the Cox auto struck Gribble’s in the rear while the latter was stopped for a traffic light? Gribble says that Tit. 36, § 15, Code, which prohibits the driver of an auto from following more closely than is reasonable and prudent having due regard to the speed of such vehicle and the traffic upon and condition of the highway, was violated and, since there was no evidence of an excuse for that violation, Cox was per se guilty of negligence. Defendants counter that § 15 was not meant to cover the rear-ending of an auto stopped for a traffic signal.

The prohibition against following too closely is merely a codification of one facet of the general rule regarding the exercise of due care by the operator of autos proceeding in the same direction. That general rule is summarized in 8 Am.Jur.2d, § 768, p. 328:

“The general rule that motorists on public highways or streets must exercise reasonable care in the operation of their vehicles, that is, such care as a person of ordinary prudence would exercise under the same or similar circumstances, governs the reciprocal rights and duties of motorists proceeding in the same direction. When heavily used municipal streets are involved, more vigilance is required in order to comply with the test of ordinary care under the circumstances.
“Noncompliance with statutes or ordinances governing the operation of motor vehicles may, in itself, constitute negligence and render the violator liable for consequential damages in the event any person sustains injury or damage thereby. Moreover, even if a motorist complies with all the requirements of a statute or ordinance regulating the operation of motor vehicles, he may yet be liable for the failure to exercise ordinary care to avoid injury to another traveler in front of or behind him on the highway. Generally speaking, however, a motorist ahead owes no duty to a motorist to the rear except to use the road in the usual way, in keeping with the laws of the road, and until he has been aware of it, by signal or otherwise, he has a right to assume either that there is no other motorist in the close proximity to the rear or that, being there, the motorist to the rear has his vehicle under such control as not to interfere with the free use of the road in front of and to the side of him in any lawful manner.”

It has long been assumed by bench and bar in Alabama that one who drives his auto into the rear of another who is stopped in obedience to a traffic light is prima facie guilty of negligence. An extensive search for precedent to support this assumption fails to reveal authority precisely in point. The rule in this regard is well stated in 8 Am.Jur.2d, supra, at § 769, p. 329:

“A motorist approaching an intersection is also required to have his vehicle under control so that he does not drive into the rear of a vehicle whose driver is obeying traffic signals by waiting for the red light to change.”

We hold this to be the rule in Alabama.

Even in light of the rule that gives the great presumption of correctness to the trial court’s ruling on motion for new trial with regard to the weight or preponderance of the evidence, we hold it was error to deny the Gribbles’ motion for new trial on the basis that the verdict of the jury was sustainable regarding the liability of defendants to the Gribbles.

The admission in this case of evidence of collateral source payments was also reversible error.

REVERSED AND REMANDED.

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


text:
    In re James R. CORBIN v. STATE of Alabama. Ex parte James R. Corbin.
    SC 2367.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Sept. 30, 1977.
    Myron K. Allenstein, Gadsden, for petitioner.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., and John B. Rucker, III, Montgomery, for the State, respondent.
   BEATTY, Justice.

The decision of the Court of Criminal Appeals is affirmed.

AFFIRMED.

All the Justices concur.


author: BLOODWORTH, Justice.

text:
    Stephen Derrick VINCENT v. STATE of Alabama.
    SC 2433.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    J. Floyd Minor of Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., Vanzetta Penn Durant, Asst. Atty. Gen. and James H. Evans, Dist. Atty., for the State of Ala.
   BLOODWORTH, Justice.

Appellant appeals from an order transferring his case from the juvenile division to the criminal division of the Montgomery County Circuit Court and from a finding that probable cause exists to believe that the allegations against him are true. We affirm.

On December 1, 1976, Don O. Barron, a Montgomery resident was shot in the head at his home. On December 2, 1976, appellant, Stephen Derrick Vincent, who was 17 years old at that time, was arrested and placed in detention in the Montgomery County Youth Facility under a delinquency petition charging him with robbery and assault with intent to murder. On the day of his arrest, an officer advised him of his right to an attorney, but he waived that right and gave an oral statement. Barron died on January 11, 1977. Thereafter, the petition against appellant was amended from assault with intent to murder to first degree murder and robbery. A hearing was held on February 10, 1977, before Judge John W. Davis, Circuit Judge, 15th Judicial Circuit, Juvenile Division, Montgomery County, on motion of the District Attorney to transfer appellant (who had then attained eighteen years of age) to the criminal division of the Montgomery County Circuit Court to be dealt with as an adult. Upon completion of some three hours of testimony, including, inter alia, the statements made by appellant to the officer and the testimony of an accomplice, Judge Davis entered an “Order of Transfer,” holding that appellant should be transferred to the criminal division of Montgomery County Circuit Court and that probable cause existed to believe that the allegations are true and correct.

Appellant contends for reversal: (1) that the statements he made to the police officer on December 2, 1976, and the information derived therefrom, were inadmissible by virtue of Miranda and § 5-125, Act 1205, Acts of Legislature 1975, vol. IV, p. 2384 (Tit. 13(a) § 5-125, 1975 Interim Supplement to 1958 Recompiled Code) and, (2) that had these statements been excluded, then the uncorroborated testimony of his accomplice, incriminating him, would have been insufficient for a finding of probable cause under Tit. 15, § 306, Code of 1940. Since a decision on the second issue is dis-positive of this appeal, we need not address the first issue.

It has long been recognized that the strict rules of evidence do not apply in a probable cause hearing. In Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), we noted:

“The United States Supreme Court, in several very recent decisions, has written that there is a great difference between the rules governing probable cause hearings . . . and those governing the trial itself.
“ ‘ * * * it should be recalled that the rules of evidence normally applicable in criminal trials do not operate with full force at [probable cause] hearings . . . . In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) . . . [t]he Court . . . distinguished between the rules applicable to proceedings to determine probable cause for arrest and search and those governing the criminal trial itself — “There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.’ ”
“. . . That certain evidence was admitted in preliminary proceedings but excluded at the trial — and the Court thought both rulings proper — was thought merely to ‘illustrate the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt.’ Id., at 174, 69 S.Ct. 1302.” (Footnotes omitted.)

United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

In Armstrong, a majority of this Court held that our statute, Tit. 15, § 307, Code of 1940, providing that a conviction of felony cannot be had on the uncorroborated testimony of an accomplice, does not apply to probation revocation hearings.

In view of these authorities, we hold that Tit. 15, § 307, is inapplicable to “probable cause” hearings on motion to transfer a juvenile to the criminal division of circuit court there to be dealt with as an adult.

After all, the United States Supreme Court itself has said that no more precise definition of probable cause can be attempted than that coined by Mr. Chief Justice Taft in Carroll v. United States, 267 U.S. 132 at 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925), “facts and circumstances . . . such as warrant a man of reasonable prudence and caution in believing that the offense has been committed,” and that the person in question is the offender. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

AFFIRMED.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . “§ 5-125. Use of statements of children, etc., during custody, preliminary inquiries, predisposition studies, etc., prior to determination of allegations of petition in delinquency or in need of supervision cases or prior to conviction in criminal proceedings. — Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer, during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment, or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction. (1975, No. 1205, § 5-125, appvd. Oct. 10, 1975.)”