text:
    Oliver D. SMITH, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 6208.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Foye L. Lowe, Jr. and Michael C. Barron, Dept, of Public Safety, Baton Rouge, for defendant-appellant.
    Gravel, Roy & Burnes by Dee D. Drell, Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   FORET, Judge.

This is an action for the issuance of a restricted driver’s license instituted by plaintiff, Oliver D. Smith, against the defendant, State of Louisiana, through the Department of Public Safety. From an adverse judgment, defendant appeals. Appellant alleges that the trial court erred in ordering the issuance of restricted driving privileges under the provisions of LSA-R.S. 32:415.1.

Judgment was rendered on March 17, 1977, and was read and signed on April 1, 1977. An order granting a devolutive appeal without bond was signed on April 22, and the return date of the appeal was scheduled for May 21, 1977. On May 20, a motion for an extension of the return date, based upon the fact that the appellant had not yet made payment on the record so that it could be prepared for the appeal, was filed; the motion was granted and the return date was extended to June 20, 1977.

LSA-C.C.P. Article 2126 provides for the payment of the costs of appeal. It states:

“The appellant shall pay to the clerk of the trial court, not later than twenty days after the granting of the order of appeal, all costs as estimated by said clerk for the preparation of the record on appeal, and the filing fee required by the appellate court to lodge the appeal.
“The twenty-day time limit may be extended once for- not more than twenty additional days by the district judge. Such extension shall be in written form. “Any difference between the estimated costs and the actual costs shall be remitted by the clerk of the trial court or paid by the appellant, as the situation may require, not later than three days prior to the return day or extended return day.”

That article has been used by the courts of this State as authority for dismissing appeals. In such cases, the appeal was not timely filed, or a motion to dismiss the appeal was granted prior to the time the appeal was lodged, because the costs of the appeal were not fully paid three (3) days prior to the return date, and the delay was due solely to the fault of appellant. American Bank & Trust Co. v. French, 336 So.2d 537 (La.App. 1 Cir. 1976); Case v. Case, 322 So.2d 354 (La.App. 2 Cir. 1975); cases too numerous to cite.

However, in the case at bar, the record was timely lodged in the appellate court. Thus, the issue of appellant’s failure to timely pay costs is moot. Vogt v. Wheat, 222 So.2d 579 (La.App. 4 Cir. 1969); Downey v. Bellue, 178 So.2d 778 (La.App. 1 Cir. 1965); Succession of Nunez ex rel First Nat. Bank of Abbeville v. Pickett, 335 So.2d 778 (La.App. 3 Cir. 1976).

Appellee invoked LSA-R.S. 32:415.1 for the issuance of a restricted driver’s license. That statute provides:

“A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person within thirty days after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice .to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family. The restrictions of said license shall be determined by the court and shall include the following:
(a) Licensee shall only be permitted to operate motor vehicle on such streets as would enable him to earn his livelihood.
(b) Such operation is restricted to such times at which he is involved in earning a livelihood.
(c) During the period of suspension, licensee shall be responsible for applying to the court in the event that earning his livelihood necessitates a change in the original restrictions proposed by the court.
(d) Any other restrictions that the court determines to be necessary and proper. (2) Notwithstanding the provisions of Paragraph (1) of this Subsection, any person whose license is suspended, revoked, or cancelled shall have the right to file an application for a restricted license on the grounds of economic necessity within ninety days after the effective date of this Section.
“B. A copy of the order shall be sent to the department along with a copy of the conviction notice. A copy of the order containing the restrictions shall be attached to the license of the person convicted and must be in possession of the person whenever he is operating a motor vehicle. A restricted license shall be issued by the department and designated by a large red R printed on the face of the license. The term of the restrictions shall be the same as the term of the original suspension, cancellation, or revocation.
“C. A violation of the restrictions or a subsequent conviction of any offense involving the operation of a motor vehicle during the term of the restricted license shall result in the extension of the period of suspension, revocation, or cancellation for one year from the date upon which the licensee would otherwise have been able to apply for new license and shall also constitute contempt of court. Suspension, revocation, or cancellation that results from such a violation shall not be subject to appeal as set forth in this Section. The restricted driving privileges for this Section may be allowed to a person only once.”

By its express terms, that statute is to be used in only two situations:

(1) A person whose driving privileges have been suspended, revoked, or cancelled may file an application for a restricted license on the grounds of economic necessity within ninety (90) days of October 1, 1976, or

(2)(a) The applicant’s driver’s license has never before been suspended, revoked, or cancelled; and

(b) The applicant has filed, within thirty (30) days after initial notice from the Department of Public Safety of the potential revocation, suspension, or cancellation of his driver’s license, a petition in the district court of the parish of his domicile alleging that that conduct would deprive him or his family of the “necessities of life or will prevent him from earning a livelihood”.

In this case, the first situation does not apply. Plaintiff-appellee Smith filed his petition on February 24, 1977, more than 90 days after the effective date of LSA-R.S. 32:415.1. Nor does the second apply. Although plaintiff filed his petition within thirty (30) days of the initial notice of suspension, his driver’s license had been suspended on a prior occasion. At trial, appel-lee Smith testified that in 1972, his driver’s license had been suspended for one year. D-1, Exhibit EA, a certified copy of an official record of the Department of Public Safety, verified and corroborated that testimony of plaintiff Smith.

LSA-R.S. 32:414, Subdivision B, compels the revocation of the license of a person who pleads guilty to, or is convicted of, a second or multiple offense of D.W.I. In those cases, there is no discretion in the trial court to grant limited driving privileges in hardship cases. Hendryx v. State, Dept. of Public Safety, 311 So.2d 547 (La. App. 3 Cir. 1975); Vicknair v. State, Dept. of Public Safety, 303 So.2d 226 (La.App. 4 Cir. 1974); Jackson v. State, Dept. of Public Safety, 349 So.2d 1319 (La.App. 1 Cir. 1977).

Accordingly, the judgment of the trial court is reversed, and judgment is hereby rendered in favor of the State of Louisiana, through the Department of Public Safety, dismissing plaintiff’s suit.

All costs of these proceedings are assessed against plaintiff appellee, Oliver D. Smith.

REVERSED AND RENDERED.

      . LSA-R.S. 32:415.1 has been amended and re-enacted by Act 243 of the 1977 regular session of the Louisiana legislature.


source: Caselaw Access Project

license: Public Domain

text:
    Billy R. HATTEN, Supt. of Education, Lamar County, and Lamar County School Board v. Robert M. JORDAN.
    No. 49704.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Rehearing Denied Dec. 14, 1977.
    William E. Andrews, Jr., Purvis, for appellant.
    Rex K. Jones, Hattiesburg, for appellee.
    Before INZER, P. J., WALKER and BROOM, JJ„ and J. D. THAMES, Commissioner.
   AFFIRMED.


author: BROOM, Justice,

text:
    Royce Maynard KEMP v. STATE of Mississippi.
    No. 50093.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Rehearing Denied Dec. 14, 1977.

      Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., David L. Coleman, Corinth, for appellant.
    A. P. Summer, Atty. Gen., by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee..
    Before INZER, WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Murder conviction and life sentence resulted from trial of Kemp (appellant) in the Circuit Court of Alcorn County. We affirm.

Rarely, if ever, are courts presented a case in which the accused is charged with the murder of his own mother, but this is such a case. The facts show that on February 18, 1976, appellant (using a pistol) shot and killed his' mother, Flossie Beatrice Kemp. Appellant was at his parents’ home in Corinth, and on the date of the murder he arose from bed and spent a large part of the day drinking beer. Some of the testimony indicates that he drank as much as a case or a case and a half of beer, plus an unknown quantity of whiskey. When the appellant’s mother came home from work about the middle of the afternoon, she found that her son, the appellant, was heavily drinking. Appellant’s father and brother-in-law testified that appellant went into the kitchen of his parents’ home, and that they heard him arguing with his mother in the kitchen. Appellant left and armed himself with the pistol. A few minutes later, at about 7:00 p. m., he returned with the pistol, after which four or five shots were heard. Law officers were called and upon arrival found the appellant’s mother shot in the face and neck — lying on the kitchen floor dead.

The first argument made by appellant is that he was deprived of a fair trial because a juror, Calvary, failed to disclose that she was a niece of a witness for the prosecution, Deputy Sheriff Mayhall. We find no error in this aspect of the case because defense counsel did not ask prospective jurors about any relationship to law enforcement officials except the question as to whether or not they had ever been married to a law enforcement officer. Additionally, the prospective jurors were asked if they were “related to someone who will be testifying in this cause, that you know of?” The record does not show, neither is it charged, that the juror in question, Calvary, knew that her relative (uncle by marriage) was a law officer or that he would testify. Absent any showing or charge that juror Calvary knew that her relative was an officer or would testify in the case, we find no reversible error in the record as to this proposition.

Next it is argued that the case should be reversed because the lower court admitted into evidence a colored photograph of the victim lying dead on the kitchen floor. While the photograph is gruesome, we note that the prosecution did not exploit admission of the photograph. No other photograph of the victim was admitted. Considered in combination with other photographs of the kitchen, the photograph portrays both the position of the victim in relationship to the projectile found in the room, and the markings made by other projectiles on the walls and ceiling. This is significant, especially when considered in connection with testimony of appellant’s wife, who testified that the gunshots fired by the appellant were not directed at any specific point, but sprayed all over the room. We conclude that the photograph served a legitimate evidentiary purpose and that the trial judge acted within his sound discretion in admitting it before the jury.

Next, it is argued that certain statements made by appellant were improperly admitted into evidence. While Officer Mayhall was arresting appellant, and as appellant walked toward Mayhall, appellant asked: “How is my mama?” After he was arrested the appellant asked several similar questions. These questions asked by the appellant were admissible because they were voluntary statements made by him at a time when he was not under interrogation. Appellant also contends that the court erred in admitting into evidence a statement given by appellant at the Alcorn County jail. He says that at the time the statement was given, he was intoxicated and not competent to waive his rights. Testimony of the law officers was that although the appellant had been drinking heavily, he was in control of his faculties, justifying the finding of the lower court that appellant was aware of his rights, that his rights were properly explained to him, and that he knowingly and willingly waived those rights and agreed to make the statement which went to the jury. Our view of the record is that the trial court was justified in finding from the evidence that appellant’s confession was freely and voluntarily given.

Final argument is that the conviction of appellant was against the overwhelming weight of the evidence and that the state failed to prove intent. Although the appellant testified that he was so drunk that he could not recall shooting his mother, he could recall a great deal about what he did during the day. His brother-in-law, Spears, testified that on the day of the killing, appellant offered him (Spears) $1,000, a gun, and a deed to certain real estate as an inducement for Spears to shoot the deceased. As held in Berry v. State, 288 So.2d 457 (Miss.1974), voluntary intoxication is a defense only when such intoxication exists to the extent that it “renders an accused incapable of forming the necessary intent to commit the crime charged and incapable of knowing right from wrong.” Other cases hold that intoxication must produce “mania” to be a defense. State v. Williams, 208 So.2d 172 (Miss.1968). Berry further held that where the evidence creates an issue of fact, its resolution is for the jury; such was the case here, and the jury resolved in favor of the state. The jury was fully instructed on the matter of intent and we find that the record demonstrates evidence sufficient to support the jury’s verdict.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    Brown Lee BRUCE, III, and Ricky Lamar Bruce v. STATE of Mississippi.
    No. 49983.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    Hugh L. Bailey, Winona, for appellants.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Carroll County; Clarence E. Morgan, Jr., Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, LEE and BOWLING, JJ., concur.


text:
    Manuel RIPOLL v. STATE of Mississippi.
    No. 50003.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    Everett Verhine, John B. Gee, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White and Robert D. Findley, Sp. Asst. Attys. Gen., Jackson, for appellee.
   Appeal from County Court, Warren County; James E. Nichols, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    McGEHEE MOVING AND STORAGE COMPANY, INC. v. Harold J. HEWITT and Virginia D. Hewitt.
    No. 49745.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    Roland C. Lewis, Jackson, for appellant.
    Paul G. Alexander, William R. Barnett, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


text:
    Arvah C. McCLENDON, d/b/a McClendon Building Service v. Charles MOSCHELLA, Edward Anderson and Bankers Trust Savings and Loan Association.
    No. 49734.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    Everett E. Cook, Gulfport, for appellant.
    Bryant & Stennis; Grier J. Gregory, Gulf-port, Robinson & Goodman, Stuart Robinson, Jackson, Eaton, Cottrell, Galloway & Lang, Charles R. Galloway, Gulfport, for appellees.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Wiley L. JOHNSON v. LAUREL FEDERAL SAVINGS AND LOAN ASSOCIATION and Kalford C. Ratcliff, Trustee.
    No. 49756.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    George L. Phillips, Hattiesburg, for appellant.
    Pack, Ratcliff & Thaxton, Kalford C. Ratcliff, Laurel, for appellees.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    EMPLOYERS INSURANCE COMPANY OF WAUSAU v. DEPENDENTS OF Herbert Robert RAMSEY, Deceased, and Sim Ramsey, Individually.
    No. 49732.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    Rehearing Denied Dec. 14, 1977.
    Riddick, McCoy & Wilkins, Joseph L. McCoy, Jackson, for appellant.
    J. Harold Graham, Jr., Crystal Springs, for appellees.
    Watkins & Eager, Velia Ann Mayer, Jackson, for Fairchild Livestock Commission, Inc.
   Appeal from Circuit Court, Simpson County; George B. Grubbs, Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    MESCO METAL BUILDING CORP. v. CLINTON MUNICIPAL SEPARATE SCHOOL DISTRICT.
    No. 49746.
    Supreme Court of Mississippi.
    Nov. 23, 1977.
    David K. .McGowan, Jackson, for appellant.
    Fox & Gowan, John H. Fox, III, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


author: HOLMES, Judge.

text:
    Margaret Falls SMITH v. Judith Jones DAVIS et al.
    Civ. 1206.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1977.

      Carleton P. Ketcham, Jr., Birmingham, for appellant.
    Patricia M. Smith, Pelham, for appellees.
   HOLMES, Judge.

This is an appeal by defendant-appellant, Margaret Palls Smith, from a judgment of the Circuit Court of Jefferson County. That court ordered the defendant to pay $6,524.82 into the court for distribution to plaintiff-appellees, Judith Jones Davis, et al.

The appellees initiated this lawsuit on April 7, 1975, filing a one-count complaint which alleged that defendant defrauded her own mother by inducing her to convey her house to defendant. The complaint further alleged that defendant represented to her mother that the house (or proceeds from its sale) was needed in order to maintain the mother in a nursing home and that the proceeds not used would be conveyed to her mother’s grandchildren, i. e., plaintiffs.

The complaint was later amended to add a second count which alleged that the above conveyance was based upon an oral trust which required the defendant to use the proceeds from the sale of the house to support her mother in a nursing home with any balance not so used to be distributed to the plaintiffs. The plaintiffs then allege that when defendant’s mother died a short time after the conveyance, the oral trust purpose failed since no expenditure of funds for long term care was required. Therefore, plaintiffs contended, a resulting trust was created in favor of the plaintiffs as residuary beneficiaries under the will of defendant’s mother.

On April 11, 1977, the trial court rendered its final decree with the pertinent parts being:

“In brief, the Bill seeks to establish a resulting trust in favor of the individual Plaintiffs and against the Defendant, as Trustee. The matter in controversy is a fund of money which was received from the sale of a piece of real property. The net income from the sale, after expenses of sale, was proven to be SIX THOUSAND FIVE HUNDRED TWENTY FOUR AND 82/100 DOLLARS ($6,524.82). The five Plaintiffs are grandchildren of the decedent, Ella N. Falls, who died seized of the subject real property.
“The decedent executed a deed to the Defendant, intervivos, and enabled Defendant to make the sale. From all of the testimony and evidence in the cause, the Court finds that it was the intention of the decedent, made known to Defendant and all parties, that her grandchildren be beneficiaries of the trust. Defendant stated that she had been told by decedent at the time of the execution of the deed that she knew that she would ‘do what was right’ about her property. This Court feels that, in equity and good conscience, the thing that is ‘right’ is to divide the income from the sale of the realty between the Plaintiff and grandchildren.
“Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
“ONE: Defendant, Margaret Falls Smith, is hereby ordered to pay over to the Register of this court the sum of SIX THOUSAND FIVE HUNDRED TWENTY FOUR AND 82/100 DOLLARS ($6,524.82) within 10 days of this instant decree.” [Emphasis supplied.]

The tendencies of the evidence, as revealed by the record, indicate the following:

The defendant is the daughter of the late Ella N. Falls. The plaintiffs are the children of the defendant’s three sisters and therefore the grandchildren of Mrs. Falls. The defendant and her mother have lived together for approximately 40 years.

Mrs. Falls entered the hospital on September 12, 1974. After a discussion of her future expenses, as noted above, there is testimony to the effect that on September 26, 1974, Mrs. Falls instructed defendant to have two deeds prepared: the first conveying the house in Fairfield from Mrs. Falls to the defendant and her three sisters as tenants in common; the second conveying the house in Wylam from Mrs. Falls to Mrs. Falls and the defendant as joint tenants with right of survivorship.

The deed to the Wylam house recites a valuable consideration. Immediately following the granting clause and the description of the property conveyed, the deed contains the following words:

“The undersigned, Ella N. Falls, has been the sole owner of this property and it is the intent and purpose of this conveyance to create a joint tenancy with right of survivorship in the undersigned Ella N. Falls and the other grantee named herein, Margaret Falls Smith.”

Mrs. Falls died on October 31, 1974. Three months later, defendant sold the Wy-lam house and it is the proceeds of such sale that the plaintiffs seek.

The record is devoid of any testimony that defendant told her mother or sisters what she would do with the proceeds. The disposition of the proceeds was not discussed. Testimony indicates that Mrs. Falls told the defendant to do “what is right” if anything was left. That is the totality of the discussion, prior to Mrs. Falls’ death, concerning any proceeds left over from the sale of the house. The only written instrument drawn up was the deed.

At the outset, we note that no recoverable fraud was proved. Nor is the fraud aspect argued in brief of appellees. Put another way, count one, as clearly revealed by the trial court’s order and briefs of the parties, is not involved in this appeal.

Appellees argue, as noted above in the complaint, that a resulting trust was created due to the failure of the oral trust, i. e., future expenses, and that the plaintiffs should recover as residuary beneficiaries.

Appellant contends that there was no trust, neither resulting nor constructive, and that the trial court erred in its decree. We agree.

The traditional classification of trusts recognizes two main divisions: express trusts and trusts by operation of law. Trusts by operation of law are classified into resulting trusts and constructive trusts. See 76 Am.Jur.2d Trusts § 189.

Title 47, § 149, Code of Alabama 1940, sets out the requirements for creating a trust in land.

“No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing.” [Emphasis supplied.]

It is clear that there was no express trust created due to the absence of any writing by Mrs. Falls. The law in Alabama is settled in that an express trust in realty may not be created by parol. See Snow v. State, 257 Ala. 614, 60 So.2d 346 (1952).

Therefore, appellees’ argument that Mrs. Falls indicated her desire to create a trust when she told defendant to “do what is right” has no merit in light of the above authorities.

It is also clear that a parol trust in realty is void ab initio and that no valid trust is created when the realty is converted into personalty unless there is a later valid declaration of parol trust in such personalty. See Westcott v. Sharp, 256 Ala. 418, 54 So.2d 758 (1951).

In the instant case, there was no later declaration of parol trust in the proceeds, due to the death of Mrs. Falls. Therefore, there was no express trust of the proceeds from the sale of the house.

Turning now to trusts created by operation of law, as excepted from the requirements of Title 47, § 149, Code of Alabama 1940, we noted above that they are of two types: resulting and constructive. A constructive trust generally involves a presence of fraud; in view of which, the equitable interest should be recognized in some person other than the holder of legal title. See 76 Am.Jur.2d Trusts § 191. Clearly, there is no constructive trust in this case due to the absence of any fraud by defendant in obtaining the conveyance of the Wylam house.

Resulting trusts are mainly in two categories, (1) those arising on a failure of an express trust and (2) those arising on a conveyance to one person on a consideration from another, i. e., commonly referred to as a purchase-money resulting trust. See 76 Am.Jur.2d Trusts § 196.

The law in Alabama concerning resulting trusts states that they arise only where one has purchased property with the funds of another and has taken title in himself. Ledbetter v. Ledbetter, 271 Ala. 629, 126 So.2d 477 (1961). It is obvious that this is not the situation in the present case. Therefore, under Alabama law, no resulting trust was created since a purchase-money resulting trust is the only recognized type.

Even if Alabama recognized a resulting trust arising out of a failure of an express trust such would not be applicable here. As noted above, a parol trust in land is void ab initio; therefore, there would be no trust to fail since it was invalid from the start. See Westcott v. Sharp, supra.

In summary, there was no express trust created due to a failure to comply with Title 47, § 149, Code of Alabama 1940. There was also no constructive trust because there was no evidence of fraud on the part of defendant in obtaining the conveyance. Lastly, a resulting trust was not created due to the fact that Alabama recognizes only the purchase-money type of resulting trust and that was not the set of circumstances in this case. There was simply no trust in this case.

Therefore, the trial court erred as a matter of law when it decreed that the proceeds should be divided among the grandchildren.

The above being dispositive of the appeal, other issues raised by appellant need not be considered.

The case is due to be and is reversed and remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: BRADLEY, Judge.

text:
    Leroy ENGLISH v. Edna Faye ENGLISH.
    Civ. 1237.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1977.

      Reggie H. Stephens, Mobile, for appellant.
    John A. Courtney, Mobile, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this proceeding were divorced by the Circuit Court of Mobile County on March 9,1977. In its decree the court ordered that certain banking institutions furnish to the court copies of all savings accounts, certificates of deposit or savings certificates listed in the name of the plaintiff or defendant, regardless of whether these accounts were held individually or jointly with another party. This decree not only reached moneys belonging to the parties, but it also brought about an accounting of moneys listed by the banking institutions as being jointly held by one (or both) of the parties in conjunction with their children and/or the sister of the defendant (appellant here).

The defendant contends on appeal that the trial court erred in requiring an equitable attachment of these accounts because the children and the defendant’s sister were not parties to the proceedings. Defendant claims that these persons, who were never parties to the proceedings that deprived them of their property, have been denied due process of law by the trial court’s actions.

The plaintiff replies that no transcript of testimony is set out in the record before this court due to the fact that there was no court reporter present at the proceedings below. Accordingly, plaintiff argues that since the trial court heard evidence that is not before this court, we have no alternative but to affirm the trial court’s decree.

Although the defendant bases his appeal on the constitutional grounds of due process, we must conclude that the assertion of his claim that non-parties were deprived of their rights to due process was not raised prior to or during the trial of the divorce proceedings. Consequently, this court will not reverse the trial court on a matter which it did not consider in the proceedings below.

Had defendant sought to establish a defense to plaintiff’s suit on constitutional grounds (thereby protecting the property interest of the non-parties or inducing them to protect their own interest), he could have attempted to do so by means of Rule 19(a)(2), Rule 12(b)(7) and Rule 12(h)(2), ARCP.

Rule 12(h)(2) provides in applicable part:

“. . .a defense of failure to join a party indispensable under Rule 19 . may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.”

After a careful examination of the record before us, we are unable to find a pleading or motion filed by defendant raising the issue that his children and his sister were indispensable parties to this proceeding. Therefore, the requirement in Rule 12(h)(2) that the defense of failure to add an indispensable party be raised by motion or in a pleading has not been satisfied.

Nor is there any indication that the defendant asserted the defense of failure to join an indispensable party during the trial. Indeed, no transcript of testimony was prepared by a court reporter and no Rule 10(d), ARAP, summary exists. Thus we are precluded from speculating as to the possibility that defendant properly raised the issue of the omission of an indispensable party at the trial on the merits.

Moreover, the occurrence of a colloquy between the defendant’s counsel and the court at the hearing on the motion for new trial which indicates that insofar as the sister of the defendant was concerned, the indispensable party issue was presented to and decided by the court, is not sufficient to meet the requirements of Rule 12(h)(2). According to the plain language of Rule 12(h)(2), the failure to join an indispensable party is waived if it is not presented before the close of trial. 5 Wright & Miller, Federal Practice & Procedure: Civil, § 1392. And, as stated earlier, there is nothing in the record which reveals that the defendant met this requirement. Thus, we must conclude that he did not raise the issue of an indispensable party in a timely manner. As stated in 5 Wright & Miller, supra, “[the defenses enumerated in 12(h)(2) (including the defense of failure to join an indispensable party)] may not be asserted for the first time on appeal.”

It is settled in Alabama that where the trial court had the opportunity to consider evidence that is not before the appellate court, such evidence will be conclusively presumed to support the findings and decree of the trial court and will not be disturbed on appeal. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). The testimony heard by the trial court is not before this court; consequently we have no alternative but to affirm the trial court’s decree.

The plaintiff-appellee has moved this court to award an attorney’s fee for the services of her attorney in defending this appeal. We consider $300 to be a fair and reasonable fee in this instance, and hereby award such sum as the fee for the services performed by plaintiff-appellee’s attorney in this appeal.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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

      . Presumably defendant’s motion would be based on his assertion that the failure to join his children and his sister as parties to the suit would result in the denial of due process with regard to their mutual property rights in the various accounts which were at issue.


text:
    In re Linda COCHRUM v. KINRO INDUSTRIES, INC., a corporation. Ex parte KINRO INDUSTRIES, a corporation.
    Civ. 1264.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1977.

      Jim L. Beech, Jr. of Tweedy, Jackson & Beech, Jasper, for appellant.
    W. H. Rogers, Moulton, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

On August 21,1975 plaintiff (Linda Coch-rum), while an employee of defendant (Kin-ro Industries, A Corporation), was injured while lifting and moving machine dies. She was examined and treated by a doctor on the day of the injury. Later the same day she was placed in the hospital and remained there for about two weeks. During her convalescence in the hospital, plaintiff received treatment for a back injury. She was also fitted for a back brace. Plaintiff was subsequently referred to a doctor who specialized in orthopedics. While under his care, she received further treatment and tests including a myelogram. She was still under the care of this physician at the time of trial.

At the trial, plaintiff testified that from the date of the accident until the time of the trial, she had suffered constant pain in her lower back and left leg. Moreover, she stated that she was unable to accomplish a substantial portion of her household tasks and that she required frequent intervals of rest in order to perform those tasks which were completed. She also testified that she had been unable to return to work due to the pain in her back and leg.

When called as a witness on behalf of plaintiff, the orthopedist who treated her stated that plaintiff had a ten percent disability to the body as a whole, but would be unable to return to the type work which she had been doing prior to her injury.

After the presentation of evidence by both parties, the trial court found that as a result of the job related injury to her back, plaintiff had suffered a thirty percent permanent partial disability to her body and to her ability to earn a living. An award was made in a lump sum with the requirement that it not be commuted. Defendant’s motion for new trial was overruled and it presented a writ of certiorari to this court asking for a review of the trial court’s judgment.

On appeal, defendant takes the position that the trial court’s judgment that plaintiff suffered a thirty percent permanent partial disability to her body and to her ability to earn a living is unsupported by the evidence.

However, in assessing defendant’s contention, we would point out that in reviewing workmen’s compensation cases our duty is to ascertain whether there is any legal evidence to support the findings of the trial court. And where such evidence is set out in the record before this court, it is our duty to affirm the trial court’s judgment. Conagra v. White, Ala.Civ.App., 348 So.2d 502 (1977).

In the case at bar the evidence demonstrates that plaintiff had never incurred difficulties with her back until the accident. Since the accident, however, she has suffered constant pain. In addition, she tires easily and is unable to perform all of her household chores. As a result of the accident, she can no longer work at the only type employment for which she has been trained, i. e. production type work. Her education is limited (the eighth grade being the last grade she completed), and she is not sufficiently trained to work in any other capacity for her former employer.

And despite the fact that the medical testimony was to the effect that plaintiff had only a ten percent disability to the body as a whole, the court heard the plaintiff’s testimony and also observed her while testifying and while in the courtroom. Based on the evidence in the record, and the inferences to be gained therefrom, we are unable to say that the trial court’s finding of thirty percent permanent partial disability is erroneous.

The next issue presented by defendant on appeal pertains to his contention that the trial court had no authority to make a lump-sum award nor to hold that the award could not be commuted.

Defendant relies on section 20 of Act No. 86, Acts of Alabama 1975, 4th Sp. Sess. (approved on November 13,1975) in support of his contention.

Section 20 provides:

“The provisions of this act shall be applicable with respect to all accidents occurring after the act shall become effective, except that the provisions of Section 9 amending Section 299 of Title 26, as last amended shall apply to all cases or proceedings pending at the time the act becomes effective or thereafter commenced.”

Moreover, defendant submits that although prior to the passage of Act No. 86 a trial court was permitted to order lump-sum payments to be made to an injured party, Title 26, Section 279(C)(9), Code of Alabama 1940 (Recomp. 1958) (1973 Supp.), section 5 of the act repealed the latter provision and it was replaced by Title 26, section 299, Code of Alabama 1940 (Recomp. 1958) (1973 Supp.). Title 26, Section 299 provides that awards in workmen’s compensation cases may only be commuted to one or more lump-sum payments upon agreement of the parties and approval of the trial' court.

However, the statutory provisions found in Act No. 86 and relied upon by defendant on appeal are inapplicable in the present case. As we stated in B. F. Goodrich Co. v. Butler, Ala.Civ.App., 336 So.2d 1357 (1976):

“. . . Section 5 is by the terms of § 20, discussed above, not applicable to accidents occurring before enactment. It is lump-sum payment by court order which is at issue in this case, and it is therefore unaffected by the § 5 repeal. Any other conclusion would do violence to the natural import of § 20 and to accepted modes of language usage.”

In the instant case the accident occurred on August 21, 1975 and the complaint was filed on April 30, 1976. Thus, the accident occurred prior to the effective date of Act No. 86. Consequently, section 279(C)(9) was still the controlling law with regard to plaintiff’s claim. The trial court followed section 279(C)(9) in ordering a lump-sum payment to plaintiff as an injured party. The court had the right to make such an award. Therefore, there is no error in this aspect of the trial court’s judgment.

No reversible error having been argued, the judgment of the trial court is affirmed.

AFFIRMED.

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


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    Lester M. AYERS v. Patricia AYERS.
    Civ. 1189.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1977.
    Stephen R. Arnold, for Jones, Arnold & Roden, Birmingham, for appellant.
    Donald B. Sweeney, Jr., for Bishop, Sweeney & Colvin, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing, the trial court awarded the home of the parties to the wife. The husband appeals and contends that the trial court committed reversible error in awarding the home to the wife and, further, that the learned trial judge should have recused himself. We disagree and affirm.

Viewing the record before this court with the attendant presumptions accorded the trial court, the following pertinent facts are revealed.

The parties were married in 1967. The wife at the time of the marriage was fifty years of age; the husband was approximately thirty years of age. The parties were married approximately nine years and no children were born of the union. At the time of the marriage, the wife owned and lived in a home she and her previous husband had purchased. There was a mortgage on this home. After the marriage, the parties moved into the home of the wife. The husband made most of the payments and provided most of the funds for the upkeep of the home. Put another way the husband was in large measure the “breadwinner.” The wife only worked a short period during the marriage. After the mortgage indebtedness was paid, the deed to the home was placed in both the parties’ names.

It is virtually conceded that the home was the only asset of the parties. As noted above, the husband contends that the trial court abused its discretion in awarding to the wife virtually the entire assets of the parties.

At the outset, we note that in this case, as in all cases where the judgment or decree is entered by the trial court after the hearing of testimony ore tenus, such judgment or decree is presumed correct and will be reversed on appeal only if, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, we conclude that it is plainly and palpably wrong.

Also, if a division of property in a case of this nature is made by the trial court, such division does not require an equal division of the estate, but one graduated according to the nature of the case. See Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

Clearly, in this instance, the trial court is not plainly and palpably wrong. The fact that the parties only had one asset, to wit, the homeplace, and this asset was awarded to the wife, does not require or suggest reversal. See Eubanks, supra.

In addition to the above, able counsel for the husband argues in brief that the learned trial judge erred in his refusing to recuse himself. This contention by the husband is bottomed on the following.

Apparently, prior to the hearing, the attorneys for the parties and the trial judge held a conference in camera. At this conference, both counsel informed the trial judge what the evidence was expected to reveal. In response to counsel’s presentation, it is alleged by appellant that the trial judge informed counsel what his decision would be and requested settlement. The appellant argues that the trial court’s ultimate decision was precisely what the trial judge indicated at the conference. Thereafter, the appellant requested the trial judge to recuse himself.

Suffice it to say that what transpired in the judge’s chamber was not transcribed nor is it before this court by any other appropriate means. Error may not be predicated upon matters not contained in the record on appeal. See Old Southern Life Ins. Co. v. Spinato, 57 Ala.App. 416, 329 So.2d 106 (1976); Hagler v. Hagler, 50 Ala.App. 266, 278 So.2d 715 (1973).

We would be remiss in not commenting that we should not be understood by the above as in any way discouraging the procedure relating to the pretrial conference used by the learned and able trial judge.

The appellee has requested of this court that an award of an attorney’s fee be made to her attorney on appeal. An award of $500 is hereby made.

AFFIRMED.

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