author: JONES, Justice. BEATTY, J.,

text:
    James OTT v. Phyllis FOX.
    Div. 77-257.
    Supreme Court of Alabama.
    July 28, 1978.
    Rehearing Denied Sept. 29, 1978.

      J. Earl Smith, for Smith & Smith, Do-than, for appellant.
    J. R. Herring, Dothan, for appellee.
   JONES, Justice.

Defendant-Appellant, James Ott, brings this appeal from a jury verdict and judgment for conversion and wrongful repossession of property. We affirm.

It is undisputed that on October 18, 1973, Mrs. Phyllis J. Fox, Appellee, and Phyllis Schidler purchased from Ott all the stock of the Flamingo Club of Dothan, Inc. The sale embraced all assets of the business, including furniture, equipment, good will, a “very favorable” lease on the business property, and an option to purchase the realty. The security agreement signed by the parties called for a $20,000 down-payment, $15,000 payable within ninety days, and the $65,000 balance payable in monthly installments of $700, due the first of each month. Simultaneously, and attached as a part of the security agreement, Ott leased the premises to Fox and Schidler, and the corporation, for a monthly rental of $1500.

Fox’s husband, Galen, negotiated the lease and purchase mentioned above, and acted as manager of the Club. Fox purchased Schidler’s interests in January, 1974.

Dispute arises concerning the December, 1975, monthly payments. On December 3, Ott was given the $700 payment on the security agreement. Mr. Fox told him, however, that he would need “a week or so” before he could pay the rent. Pursuant to the terms of the lease, Fox received a notice to vacate on either the 4th, 5th, or 9th. On Sunday, December 14 (the fifth day after the notice, as required by the lease), Mr. Fox gave Ott a check for $1500. At that time, Ott allegedly agreed not to present the check at the bank until the following afternoon so that Fpx could deposit the Club’s weekend receipts;

The next morning, at 9:10 a. m., Ott presented the check to the City National Bank of Dothan and was told Fox did not have sufficient funds to cover the stated amount. Mr. Fox deposited his receipts approximately an hour and one half later at a nearby branch office of the Bank. The deposit rendered his account sufficient to cover the draft. Fox heard nothing from Ott until the next morning when he learned Ott had changed the locks on the Club.

Pursuant to the agreement’s repossession clause, Mrs. Fox delivered-over her stock to Ott so that he could maintain the establishment’s alcoholic beverage license. Without notifying the Foxes, Ott later sold the business assets to one party and the premises to another.

As refined by the Court’s Pretrial Order, Fox founded her complaint upon three “Counts.” First, she alleged Ott converted all her stock in the Club, and all furniture, fixtures and equipment of the corporation. Secondly, she alleged Ott wrongfully repossessed the stock, furniture, fixtures and equipment of the corporation. Her third “Count” averred a negligent or wrongful failure by the Bank to pay her check or draft. (A directed verdict was granted as to this third “Count” and no issues concerning this Party are raised on appeal.) “Counts I and II” were submitted to the jury and a verdict was returned for Plaintiff assessing damages at $88,989.

On appeal, Ott’s primary contention is that he should have been granted a directed verdict either at the end of Plaintiff’s case or after all the evidence had been presented. In support of this contention, he argues three points: (1) That the repossession was lawful and that, therefore, no conversion was possible; (2) That there was no evidence that Mrs. Fox personally owned the allegedly converted property; and (3) That there is no evidence that he converted Fox’s shares of stock. These contentions, however, are without merit.

In his Motion for Directed Verdict, entered following the close of Plaintiff’s case, Ott merely contended his repossession was lawful. By the second Motion, submitted at the close of all the evidence, Ott asserted that there was a lack of evidence concerning conversion of the stock. Neither Motion questioned ownership of the allegedly converted personalty. Thus, point “(2)” mentioned above must be considered waived. Rule 50(a), ARCP. Accord, Owens v. Clow Corp., 491 F.2d 101 (5th Cir. 1974); and Crum v. McGhee, 289 Ala. 244, 266 So.2d 855 (1972). As will be shown, because there was evidence of conversion and wrongful repossession of the furniture, fixtures and equipment of the corporation, and because “Count I” included both conversion of the stock and the furniture, fixtures and equipment, the trial Court properly denied the Motion concerning point “(3)” above.

Point “(1)” mentioned above pertains to the legality of the repossession and, in effect, the conversion of the furniture, fixtures and equipment of the Club. Thus, the sufficiency of the evidence in support of Plaintiff’s claim, together with the propriety of the Court’s ruling that such issues should be submitted to the jury, must now be considered.

Where a directed verdict is requested, the entire evidence must be viewed in a light most favorable to the opposing party. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972); and Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855 (1970). In a tort claim context, a motion for directed verdict should be denied where the evidence is in conflict as to any material issue or where, from the evidence, reasonable inferences must be drawn to substantiate the claimed culpability of the defendant. Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So.2d 598 (1950); and Wells v. Central Bank of Alabama, N. A., 347 So.2d 114 (Ala.Civ.App.1977). Therefore, the trial Court properly denied Ott’s Motion if Fox presented credible evidence supporting her contentions.

To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse. Webb v. Dickson, 276 Ala. 553, 165 So.2d 103 (1964); and State Farm Mutual Automobile Insurance Co. v. Wagnon, 53 Ala.App. 712, 304 So.2d 216 (1974). The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiff’s rights, where said plaintiff has general or special title to the property or the immediate right to possession. Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969). Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968); and State Farm, supra. And a wrongful repossession of personalty will support such a claim. See Ford Motor Credit Co. v. Jackson, 347 So.2d 992 (Ala. Civ.App.1977); and Wells, supra.

In the instant case, it is undisputed that Ott, after Fox’s check “bounced,” changed the locks on the Club and repossessed all its furniture, fixtures and equipment. He contends this was in compliance with the terms of the lease and security agreement, was lawful, and, thus, no conversion occurred.

It is well settled that, ordinarily, an agreement to extend the time of payment of a presently-due obligation or debt must itself be based upon valuable consideration. Webb, supra; Ison Finance Co. v. Glasgow, 266 Ala. 391, 96 So.2d 737 (1957); and 10 C.J.S. Bills and Notes § 160. It has also been held, however, that a creditor, by his actions, may be estopped from asserting this defense where, as here, there is credible evidence of the elements of this legal principle. Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976); and Commercial Credit Co. v. Willis, 126 Fla. 444, 171 So. 304 (1936).

“Estoppel has been defined by one court, in dealing with a case similar to the one before us, as: (1) knowledge of the facts by the party to be estopped; (2) intention by the party to be estopped that its conduct be acted upon, or such party acts so that the party asserting estoppel has a right to believe that the conduct is so intended; (3) ignorance by the party asserting estoppel of the true facts; and (4) injurious reliance by the party asserting estoppel on the conduct. Varela v. Wells Fargo Bank, 15 Cal.App.3d 741, 93 Cal.Rptr. 428 (1971). This definition is in accord with the Alabama cases. See. e. g., Mooradian v. Canal Insurance Co., 272 Ala. 373, 378, 130 So.2d 915 (1961); Ellison v. Butler 271 Ala. 399, 124 So.2d 88 (1960).” Bank of Huntsville, at 1387.

As stated, there was evidence presented that Ott agreed to wait until the afternoon of December 15 before presenting the check given him the day before. Virtually every rental payment had been late under the terms of the lease and security agreement. (Of the twenty lease payments received into evidence, fourteen were dated later than the first day of the month.) A jury question was presented as to whether Ott made this agreement, whether Fox was justified in believing it, and whether Ott intentionally violated the agreement to Fox’s detriment. Therefore, the Motion for Directed Verdict was properly denied and the issue was properly submitted to the jury-

Similarly, Ott’s next contention — relevancy of prior lease payments and the value of the allegedly converted stock— lacks merit. Obviously the cancelled checks, noted parenthetically above, were relevant as to the course of dealings between the parties, as well as the Foxes’ justification in relying upon Ott’s agreement not to present their check for payment until the afternoon of December 15. The value of the lease, clearly a corporate asset, aids in determination of the value of the allegedly converted corporate stock because the value of such stock is a reflection of corporate worth. Furthermore, the trial Judge has great discretion concerning the relevancy of evidence. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975). Moreover, relevancy was not assigned as a ground for this particular objection below. Alabama Power Co. v. Tatum, supra; and Rule 46, ARCP.

Ott’s next argument questions the sufficiency of the evidence supporting an award of punitive damages and the trial Court’s oral charge on this subject. It is clear that punitive damages may be awarded in an action of conversion, even though not alleged in the complaint, where the evidence justifies such an award. Carolina Casualty, supra. Here, there was evidence of insult and malice in that Ott knowingly violated his extension agreement and speedily repossessed the premises without notifying Fox of his actions, even though Mr. Fox offered him a cash payment at that time. Such evidence is sufficient in this- regard. See Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961); and Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358 (1955).

Also, Ott failed to object to the Court’s oral charge. For this reason, he cannot now complain of possible errors contained therein. Windsor v. General Motors Acceptance Corp., 295 Ala. 80, 323 So.2d 350 (1975); and Tombrello v. McGhee, 282 Ala. 408, 211 So.2d 900 (1968).

Ott further argues that counsel for Fox improperly commented in closing argument upon facts not in evidence. Great latitude is permitted in arguments by counsel, and the trial Judge has much discretion in his rulings on such matters. See New York Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25 (1962), rev’d. on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); and Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619 (1955). Ott’s allegations take statements out of context which, when read as a whole, constitute harmless error, if error at all. See Rule 45, ARAP; and Rule 61, ARCP.

Next, Ott argues that the deposition of Galen Fox, read into evidence, was improperly excluded from the jury room during deliberations. In support of this argument, he cites § 12-16-14, Code 1975, which reads:

All instruments of evidence and depositions read to the jury may be taken out by them on their retirement.

This rule, by its own terms, is discretionary (Alabama City G. & A. Railway Co. v. Heald, 178 Ala. 636, 59 So. 461 (1912); but, as is reflected by the Code Commissioner’s Comments, it is superseded in civil cases by Rule 51, ARCP. That Rule entirely omits reference as to depositions going to the jury for their deliberation. The Rule thereby prevents such reception. The undue influence and inordinate weight such evidence may be given clearly justifies our holding. To permit the jury to take the deposition into the jury room would give that evidence more weight than ordinary testimony given during the trial. Under present practice, the deposition, which has been read into evidence, is not itself evidence. Therefore, a mere reading of the deposition, or of offered pertinent portions, into the record accords a more desirable result.

It is understood, of course, that nothing we have said in any way affects the admissibility, or the taking into the jury room, of documentary evidence (e. g., notes, insurance policies, written contracts, plats, etc.); rather, our holding is limited to the matter at issue — testimony by way of deposition— the transcription of which is not itself evidence.

Appellant raises one final point upon appeal. He contends evidence admitted as to the value of the stock and personalty at the time they were sold to third parties is irrelevant. This contention is erroneous for two reasons. First, such evidence goes toward proof of conversion under § 7-9-504, Code 1975, because no notice of these subsequent sales was given Fox. Ott asserts he utilized § 7-9-504(4), however, and that notice was not required. Even assuming this contention is well founded, the evidence was relevant upon the issue of damages.

The measure of damages for conversion is the difference between the reasonable fair market value of the item converted and the balance due on the mortgage debt at the time of conversion, plus interest. Ford Motor Credit Co. v. Jackson, 347 So.2d 992 (Ala.Civ.App.1977). The determination of this fair market value, particularly with property that fluctuates in value, however, must be its value at the date of conversion, or at any time subsequent thereto and before trial. Mattingly v. Houston, 167 Ala. 167, 52 So. 78 (1909); and Coffee General Hospital v. Henderson, 338 So.2d 1022 (Ala.Civ.App.1976). Accord, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Clayton, 488 F.2d 974 (5th Cir. 1976); and Chattanooga Discount Corp. v. West, 219 F.Supp. 140 (N.D.Ala.1963). Mindful of this rule, the trial Judge clearly did not abuse his discretion by permitting introduction of the controverted testimony.

After reviewing all assignments, we find no error in the- proceedings below. The judgment of the trial Court is due to be affirmed.

AFFIRMED.

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

BEATTY, J.,

concurs in that aspect of the opinion relating to Rule 51, ARCP. Otherwise, he concurs in the result only.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Richard Hail BROWN v. Aziza BATEH et al.
    77-215.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Rehearing Denied Sept. 29, 1978.

      J. Howard McEniry, Jr., Bessemer, for appellant.
    William M. Acker, Jr., Birmingham, for appellees.
   MADDOX, Justice.

This appeal questions the applicability of Act No. 1107, Acts of Alabama, 1969, p. 2042 [§ 6-5-230, Code, 1975] which reduced the redemptive period from two years to one, when applied to a mortgage which was executed prior to the effective date of the Act, but which was foreclosed after the effective date of the Act.

The facts are virtually undisputed. Brown and Bateh, as partners, executed a mortgage to the First National Bank of Birmingham on May 2, 1967, in order to secure the purchase price of the subject tract. The partnership was subsequently dissolved and the subject property was awarded to Brown. Upon Brown’s failure to comply with the mortgage conditions, the First National Bank foreclosed the mortgage by sale on March 26, 1975. The foreclosure purchaser, Bateh, paid $40,000 for the property.

On 20 February, 1977, Brown began his attempt to redeem by serving on Bateh a written demand for a written statement of the debt and lawful charges. Section 6 — 5— 234, Code of Alabama (1975). Bateh failed to respond and Brown filed his Bill to Redeem on March 25, 1977.

Bateh filed an answer and motion for a summary judgment alleging that the time within which Brown could redeem had expired and that in any event, Brown's Bill to Redeem failed to comply with the requirements of § 6-5-235 and § 6-5-238, Code of Alabama (1975). Based on affidavits filed by both parties, the trial court granted Batch’s motion for summary judgment.

We affirm.

Act No. 1107 [§ 6-5-230] reads, in part, as follows:

“Where real estate, or any interest therein, is sold under execution, or by virtue of any decree in the Circuit Court or under any deed of trust, or power of sale in a mortgage, the same may be redeemed by the debtor, junior mortgagee, vendee of the debtor, or assignee of the equity or statutory right of redemption, wife, widow, child, heir at law, devi-see, or any vendee or assignee of the right of redemption under this Code, from the purchaser, or his vendee, within one year thereafter in the manner provided in this chapter.”

Prior to the effective date of this Act, the statutory time for redemption was two years. Tit. 7, § 727, Code of Alabama (1940). Brown says that the Act, as applied to this mortgage by the trial court, would constitute an unconstitutional impairment of contract. Brown argues, in brief, that since he was a party to the mortgage, he had a right not to have the statutory period of redemption then applicable reduced. He cites Cowley v. Shields, 180 Ala. 48, 60 So. 267 (1912) to support his argument. Cowley does state the following:

“As we understand the more recent rulings of the United States Supreme Court, as to whether or not statutes subsequent to the execution of the mortgage are obnoxious as impairing the obligation of the mortgage contract, the test is whether or not the statute as to redemption cuts off any existing right of the mortgagee, or places an additional burden on the mortgagor. A statute authorizing the redemption of property sold under a mortgage, where no right of redemption previously existed, or which extends the period of redemption beyond the time formerly allowed, cannot constitutionally apply to a mortgage executed before its passage. Neither could a statute so apply which cuts off the right or reduces the period of redemption, or which increases the burden of doing so. This rule, however, applies to the parties to the contract, and not to strangers who purchase at the sale as they are governed by the laws existing at the time of the sale with reference to the redemption of the property. But the courts hold that even where the mortgagee becomes the purchaser and the sum bid or paid is equal to or exceeds the mortgage indebtedness, he then ceases to hold as mortgagee, but as purchaser, and the property can be redeemed under the redemption laws existing when the sale was made without doing violence to the federal or state Constitutions. Insurance Co. v. Cushman, supra. On the other hand, if the mortgagee purchases for less than the debt, he still holds as a mortgagee, and a redemption law which would divest him of the property by paying, to redeem, less than the mortgage debt, or impairing his security in any way, would be repugnant to the Constitution if made applicable to existing mortgages. Bradley v. Lightcap, 195 U.S. 1, 24 S.Ct. 748, 49 L.Ed. 65; Barnitz v. Beverly, 163 U.S. 118, 16 S.Ct. 1042, 41 L.Ed. 93. We might add that even in cases where the mortgagee bought the property for less than the mortgage debt the new redemption law merely extending the right to the assign-ee of the mortgagor, without changing the time for redemption, could apply without colliding with the Constitution, if the law required payment of the full amount due upon the mortgage, regardless of the amount bid, and which is now required by section 5749 of the Code of 1907, subd. (4).”

Cowley does not control here. In this case, Bateh was a stranger to the mortgage at the time he purchased the tract. It is undisputed that Bateh had been divested of any interest therein prior to foreclosure. See Brown v. Bateh, 331 So.2d 671 (Ala. 1976). As such, the rights between Brown and Bateh were fixed at the date of sale; at that date, the period within which Brown could redeem was one year.

The statute clearly states that the one-year period begins to run from the time the property is sold; therefore, the critical date for determining the rights of the mortgagor, relative to statutory redemption, is the date of the sale of the real estate and not the date of the execution of the mortgage. A right of redemption is not property, or a property right, but a privilege merely, to be exercised by the proper party in the mode prescribed by the statute. Denson v. Provident Mut. Life Ins. Co., 231 Ala. 574, 166 So. 33 (1936). The right to redeem can only spring into existence upon the foreclosure of the mortgage. “A person who attempts to exert this privilege must show that at this time and within the time allowed thereafter ... he was within the class of redemptioners provided in the statute.” Butler v. Fayette Seed Farms, Inc., 280 Ala. 482, 195 So.2d 534 (1967); Title 7, § 743, Code 1940 (now § 6-5-246, Code 1975).

Brown failed to exert his privilege within one year after the sale. His right to redeem did not exist at the time he sought to exert his privilege.

The judgment of the trial court is due to be, and is hereby affirmed.

AFFIRMED.

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


text:
    Paul TIBBETS et al. v. HOME STATE SAVINGS ASSOCIATION.
    77-369.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Rehearing Denied Sept. 29, 1978.
    Donald R. Harrison, Montgomery, for appellants.
    William D. Coleman, Montgomery, for appellee.
   MADDOX, Justice.

This is an appeal from the trial court’s order dismissing the defendant foreign corporation for lack of in personam jurisdiction.

In late 1974, James Cofer and Bill Sanford were in the process of negotiating with John Donaldson concerning the development of the River North Mobile Home Park. The parties entered into what amounted to a joint venture. For the purpose of providing more capital, one John Newcomer was brought into the project. Donaldson’s interest was bought out and Gene and Paul Tibbets were contacted and included in the venture in April 1975, upon the contribution of a certain sum of money necessary to extend the purchase option upon the tract of land upon which River North was to be located.

In the course of the search for project financing, Newcomer was to obtain a standby or secondary commitment. Home State Savings Association, an Ohio corporation, was first contacted in July, 1975, by the venture’s broker, Harris Mortgage Company. Newcomer, Cofer and Sanford were identified as principals in the project, but neither Gene nor Paul Tibbets were so identified.

On August 7, 1975, a representative of Home State, Mark Ulrey, flew to Montgomery to make a site inspection as a part of his company’s consideration of the commitment. Ulrey met with Cofer who showed him the proposed site and two other local mobile home parks; within three hours he was on his way back to Ohio. It is alleged that Cofer was told that the site inspection was the last step and that a valid and bankable commitment would be issued in a matter of days.

Later in August, Cofer talked over the telephone with Tom Tiernan, another representative of Home State. According to Cofer, Tiernan told him that the commitment was ready and that to obtain it they should travel to Cincinnati, Home State’s office, and bring a cashier’s check for $25,-000. At this point, Cofer requested a copy of the commitment before he would take the money to Cincinnati, whereupon he was told that it was not the policy of Home State to issue a copy of the commitment in advance. The $25,000 was never delivered and the commitment was never issued. Soon afterward, the option on the land lapsed, whereupon the entire project fell through. Although informed of this fact by the Harris Mortgage Company, Home State says that it heard nothing else concerning the project until it received a copy of plaintiff’s amended complaint in September, 1976. Gene Tibbets and Paul Tibbets filed suit on July 23, 1976, naming James B. Cofer, John L. Donaldson, Bill N. Sanford, John F. Newcomer and fictitious parties as defendants. On September 20, 1976, the complaint was amended to change Cofer and Sanford from defendants to plaintiffs and to make Home State Savings Association a party-defendant, dropping the fictitious designations. In this amended complaint, the plaintiffs alleged that defendant Home State had represented to the plaintiffs that defendant Newcomer had proper financial standing to secure the commitment and that good, valid and proper commitments were in the process of being secured which were thereafter in effect. Plaintiffs further alleged that payments of several thousand dollars were made as a result of these representations. In the original complaint, plaintiffs alleged the date of discovery of this fraud to be around September 1, 1975, but they amended their complaint to change the date of discovery to around October 1, 1975.

Service was made upon Home State through the office of the Secretary of State. Home State filed motions seeking dismissal on the grounds of lack of personal jurisdiction and bar of the statute of limitations; each was denied. Home State then took depositions of all the plaintiffs which were filed with the court together with a motion for summary judgment to dismiss it as defendant, based upon the pleadings, the affidavits of its representatives and the depositions of the plaintiffs. In this motion, defendant again asserted as grounds, lack of jurisdiction.

Home State filed with the motion for summary judgment an affidavit of David Schiebel, Executive Vice President and Secretary of Home State. This affidavit was summarized by the trial court, as follows:

“Home State is not licensed to do business in the State of Alabama; it has no offices or branches in Alabama; it neither owns nor possesses any real property in the State of Alabama; it has no bank accounts or telephone listings in the State of Alabama. Rather, Home State’s sole contact with the State of Alabama was on August 7, 1975, when a sole agent of the Defendant made a trip to the State of Alabama, lasting two and one-half hours, during which time he conducted a site inspection of the proposed River North project.”

The plaintiffs allege, as noted above, that while in Alabama, Home State’s representative, Ulrey, made a false representation to plaintiff Cofer which is, at least in part, the basis of their cause of action.

The trial court did not take this view, and granted the motion for summary judgment, dismissing Home State as a party-defendant. The court felt that the facts were insufficient to provide jurisdiction in an Alabama court under either 4.2(a)(2)(C) or (D) of the Alabama Rules of Civil Procedure.

We hold that dismissal of the defendant was erroneous and we reverse and remand. Mann v. Frank Hrubetz and Co., 77-287[MS], (decided August 4, 1978), Ala.Sup., 361 So.2d 1021.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    Sam RAINE, Jr., et al. v. FIRST WESTERN BANK.
    77-392.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Rehearing Denied Sept. 29, 1978.

      Phil Joiner, Samuel Maples, Birmingham, for appellants.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee, First Western Bank.
   BEATTY, Justice.

A default judgment was entered against defendants, Sam Raine, Jr. and Norman Ceravolo, in favor of plaintiff, First Western Bank, for $30,040.48 and costs. Defendants’ 60(b) motion to set aside entry of default was denied by the trial court and this appeal follows. Plaintiff moves this Court to dismiss the appeal as untimely filed. The motion to dismiss is denied; however, the trial court’s denial of defendants’ motion to set aside the default is hereby affirmed.

The lawsuit below was based on a default by B & B Coal Co., Inc., Billy Hyche and Billy Kirby, as makers, on the payment of two promissory note and security agreements held by plaintiff Bank. The first (and only note involved on this appeal) was “endorsed” by the defendants Raine and Ceravolo when the note was executed. Collateral consisting of mining equipment and several vehicles located in Tuscaloosa County secured this note. On two different occasions, without notice to the defendants, a secured vehicle was released from the agreement by the plaintiff Bank.

On August 3, 1976 the plaintiff filed suit against these parties (against Raine and Ceravolo on the first note only) in Tuscaloosa County Circuit Court. The pertinent part of the complaint follows:

1. Plaintiff holds a security interest and is entitled to the immediate possession of the following described property:
[collateral described]
2. (a) On or about the 28th day of January, 1976, Defendants, B & B Coal Company, Inc., Billy Hyche, Sam Raine, Jr., and Norman Ceravolo, executed a Promissory Note and Security Agreement to Plaintiff in the sum of Forty Eight Thousand, Four Hundred, Twenty-Nine and 78/ioo ($48,429.78) Dollars, . . . The aforementioned note and security agreement provided, among other things, that a security interest in the above described property listed in paragraph 1 hereinabove was being granted the Plaintiff to secure the payment on said note and all other amounts due or to become due under said note. .

Detinue bond was signed and an Order for Writ of Seizure pursuant to the complaint and 64(b), ARCP decreed. A return of service of process was made by a Jefferson County Deputy Sheriff certifying that these defendants were personally served in Birmingham on August 11, 1976. A year later, on August 10, 1977, default judgment was entered against the defendants and a Writ of Inquiry issued for ascertainment of damages. These damages were assessed and entered on September 9, 1977.

On September 30, 1977 the defendants moved to set aside the entry of default. This motion, as later amended, claimed in essence that the default judgment was void or invalid, that the court made a mistake in rendering judgment on the complaint, and that meritorious defenses were available to the defendants.

A hearing on the motion was held November 22,1977. After a brief was filed by the defendants on December 5, 1977 the trial court took the matter under advisement, and on January 23, 1978 entered its order overruling and denying the motion to set aside the default judgment.

The defendants filed notice of appeal to this Court on February 21, 1978.

The plaintiff contends that the defendants’ notice of appeal on February 23, 1978 was filed after the forty-two day period of Rule 4, ARAP, and hence was untimely. It is clear from the record, however, that the appeal was timely made.

Except as otherwise provided therein, Rule 4(a)(1), ARAP requires that:

[I]n all cases in which an appeal is permitted by law as of right to the Supreme Court . . . the notice of appeal re-' quired by Rule 3 shall be filed with the clerk of the trial court within 42 days (six weeks) of the date of the entry of the judgment or order appealed from, (emphasis added)

Rule 3(c), ARAP requires the notice of appeal to specify among other things the judgment, order or part thereof appealed from. Defendant filed notice of appeal on February 23, 1978 from the order denying the motion to set aside the default judgment. This was well within the forty-two day period measuring from January 23, 1978, the day the order denying the motion was handed down.

On the question of whether the order appealed from was an appealable order that issue was decided in Cockrell v. World’s Finest Chocolate Co., Inc., 349 So.2d 1117 (Ala.1977). See also, Greenspahn v. Joseph E. Seagram & Sons, 186 F.2d 616 (2d Cir. 1951); Wright & Miller, Federal Practice and Procedure: Civil § 2871. It is equally well-settled that the denial of a 60(b) motion does not bring up for review on appeal the correctness of the judgment which the movant seeks to set aside, but is limited to deciding the correctness of the order from which he appeals. Cockrell, supra; Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Wright & Miller, Federal Practice and Procedure: Civil § 2781. In reviewing such an order the courts possess discretion in passing on an attack upon a judgment, and in exercising this discretion they attempt to balance the desire to remedy injustice against the need for finality of judgments. See Committee Comments, Rule 60, ARCP; Wright & Miller, supra § 2857.

In order for one to obtain 60(b) relief, he must allege and prove one of the grounds set out under the rules, together with a meritorious defense to the action. Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973); Trueblood Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D.Va. 1963). On the other hand if the judgment which forms the basis of the appeal is a void judgment, then such a judgment will negate the necessity of showing a meritorious defense. Modernage v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

In this case the defendants’ motion to set aside the default judgment essentially sets out grounds of (1) void judgment under 60(b)(4), and/or (2) mistake under 60(b)(1).

The defendants argue that affidavits submitted by them to the court were sufficient to rebut the presumption in favor of the correctness of a sheriff’s return. That argument overlooks the decisions which have held that a sheriff’s return of service is prima facie evidence of its correctness, and the party challenging it has the burden of establishing lack of service by clear and convincing proof, Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969); Howard v. Drinkard, 261 Ala. 555, 74 So.2d 704 (1954); Bastion-Blessing Co. v. Gewin, 217 Ala. 592, 117 So. 197 (1922); Gray v. Hanby, 204 Ala. 559, 86 So. 548 (1920); Speegle v. Citizens Bank, 346 So.2d 455 (Ala.Civ.App.1977), and additionally, overlooks those decisions holding that a sheriff’s return will not be invalidated upon the uncorroborated statement of the parties in which they deny service upon them. Howard v. Drinkard, supra; Eidson v. McDaniel, 216 Ala. 610, 114 So. 204 (1927); King v. Dent, 208 Ala. 78, 93 So. 823 (1922). Therefore, as defendants did not meet their burden of proof we cannot hold as a matter of law that the judgment was void or that the trial court abused its discretion in denying the 60(b) motion on this ground.

In this appeal the defendants contend that the plaintiff’s complaint was defective and thus the default judgment was rendered on defective pleadings. This, they argue, resulted in the judgment being void. They say this follows from the fact that the complaint alleged an action against defendants as if makers rather than alleging an action against them as endorsers. They contend that since they weren’t liable as makers the judgment was rendered on defective pleadings. Insofar as the defendants’ contention that the judgment was based upon a mistake they in effect argue the court made a mistake by rendering the default judgment on improper allegations.

With regard to the aspect that the judgment was void, judgment cannot be void when the court has jurisdiction of the parties and the subject matter. Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976). As we established above, the court had jurisdiction by personal service upon the defendants. The defendants do not contend a lack of subject matter jurisdiction.

Concerning defendants’ allegations of mistake, if the complaint in the present case was defective, that irregularity could not for the first time be made the basis of vacating a judgment on appeal. In Hanover Fire Insurance Co. v. Street, 228 Ala. 677, 154 So. 816 (1934), we quoted from Freeman on Judgments, Vol. 3 (5th Ed.):

[T]he sufficiency of the . . . complaint ... as a statement of a cause of action is a matter either expressly or impliedly determined by the court rendering the judgment, and equity will not interfere on the ground that the facts pleaded were not such as to constitute a cause of action [claim].

To allow a defendant to sit on his defenses, suffer a default, and then obtain relief on the basis of a defective complaint would thwart the spirit, as well as the letter of our rules — rules which are designed to do justice to both sides. Assuming then there was an insufficient complaint, that cannot now be used to establish that the trial court abused its discretion, or made a mistake. In Silk v. Sandoval, 435 F.2d 1266 (1st Cir. 1971); cert. den. 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971), the Court discussed the equitable conception applied to the grounds of Rule 60(b):

If the court merely wrongly decides a point of law, that is not ‘inadvertence, surprise, or excusable neglect.’ Moreover, these words, in the context of the rule, seem addressed to some special situations justifying extraordinary relief. [This] motion is based on the broad ground that the court made an erroneous ruling, not that the mistake was attributable to special circumstances.
A contrary view, that ‘mistake’ means any type of judicial error, makes relief under the rule for error of law as extensive as that available under Rule 59(e) which permits motions to ‘alter or amend judgment.’

Therefore, the default judgment being neither void, not effected by a mistake covered by 60(b), we hold the trial court did not abuse its discretion in denying the motion to set that judgment aside.

In their 60(b) motion defendants set forth several possible defenses to the action which they aver were foreclosed by the trial court’s refusal to set aside the judgment. However, as we have shown, there having been established no proper grounds in the first instance for relief from the judgment which foreclosed these defenses, and which was their first requirement, we need not reach them.

Neither do we rule on plaintiff’s motion to exclude certain statements in defendants’ reply brief of May 16, 1978 in view of our decision on the underlying issues.

The order of the trial court denying the defendants’ motion to set aside the default judgment is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    MORGAN COUNTY BOARD OF EDUCATION, a corporation v. ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY, a corporate body, et al.
    77-264.
    Supreme Court of Alabama.
    Sept. 1, 1978.
    Rehearing Denied Sept. 22, 1978.
    Robert H. Harris, Decatur, for appellant.
    M. R. Nachman, Jr. of Steiner, Crum & Baker, Montgomery, for appellee, City of Hartselle Board of Education.

      William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for appellee, Alabama Public School and College Authority.
   PER CURIAM.

This is a dispute between the Morgan County Board of Education and the City of Hartselle Board of Education over state funds allocated to Morgan County, which allegedly have been unlawfully diverted to Hartselle. The dispute arises from the fact that the City of Hartselle, once a part of the Morgan County school system, established its own city school system in 1975.

Morgan County filed an action for declaratory judgment seeking construction of Act 1277, Acts of Alabama, 1973 Regular and Special Sessions, Vol. IV, p. 2181. Both Morgan County and Hartselle moved for summary judgment. The circuit court granted summary judgment in favor of Hartselle. We reverse.

Act 1277 authorized the Alabama Public School and College Authority to issue revenue bonds totaling $179,921,000.00 to provide capital improvement funds for public education. Of this amount, $100,000,000.00 were allocated for elementary-secondary systems to be distributed as follows:

Section 8(c):

“(1) One hundred thousand dollars ($100,000) shall be paid to each city and county board of education .
“(2) The residue from the one hundred million dollars ($100,000,000) after providing for costs involved in issuing said bonds and (1) above shall be allocated and distributed to city and county boards of education, pro rata, on the basis of teacher units as determined in accordance with the minimum school program for the school year 1973-74 . . . ”

By letter dated October 18, 1973, Morgan County was advised by the State Department of Education that the estimated allotment to Morgan County was $1,206,347.00. After bond sales expenses were determined, the precise allocation was fixed at $1,227,-633.10.

After creating its own school system in 1975, Hartselle made application to the Authority to receive a portion of the funds generated by the sale of bonds under Act 1277. The Attorney General opined that Hartselle was not entitled to the $100,-000.00 allocation under § 8(c)(1) but was entitled to a portion of the funds allocated to Morgan County under § 8(c)(2). In response to the opinion, the Authority reallocated the funds previously apportioned to Morgan County under § 8(c)(2) and gave Hartselle $366,029.70 of the amount.

It is undisputed that the allocation of funds by the Authority under § 8(c)(2) of Act 1277 is made to- the city or county boards of education, computed by multiplying a dollar factor assigned per teacher unit by the number of teacher units in a respective system in the 1973-74 school year. In 1973 — 74, Alabama had 126 elementary-secondary school systems of which 67 were county systems and 58 were separate city systems.

The Morgan County school system had 342.72 teacher units during the 1973-74 school year. Of this number, 107.9 teacher units were attributable to students taught in four school buildings physically located in Hartselle. Hartselle now operates the four school buildings under its city school system and sought money from the Authority based upon the 107.9 teacher units attributed to these buildings in 1973-74.

The circuit court made its ruling on the basis of its construction of Act 1277. The court allowed the distribution of funds to Hartselle on two grounds:

(1) The Act allocates and distributes the bond proceeds to “teacher units,” rather than to school “systems.”

(2) If the Act is susceptible to more than one construction, the courts should construe the language to produce equity and fairness.

The fundamental rule of courts in construing acts of the legislature is to ascertain and give effect to the legislative intent. If possible, such intent must be gathered from the language of the legislature itself. Drake v. Pennsylvania Threshermen and Farmers’ Mut. Cas. Ins. Co., 265 Ala. 444, 92 So.2d 11 (1957). It is only when the language of the statute is ambiguous or uncertain that the court can resort to considerations of fairness, justice, and policy to ascertain the intent of the legislature. Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921).

We are of the opinion that the circuit court mistakenly concluded that the legislature “chose to peg the allocation and distribution of bond proceeds not to ‘system’ but to ‘teacher units.’ ” The Act provides in § 8(c)(1) that “$100,000 shall be paid to each city and county board of education ... § 8(c)(2) provides that the residue “shall be allocated and distributed to city and county boards of education, pro rata, on the basis of teacher units as determined in accordance with the minimum school program for the school year 1973 — 4 . .” [Emphasis added.]

It is clear from the above language that the legislature allocated these funds to school boards. Teacher units are not such entities as can receive funds. It is true that the amount of the allocations were based on teacher units, but the allocations were to school boards. A teacher unit is merely a process, or formula, based on the previous years average daily attendance of students and is used to aid in administration of the minimum fund program. Teacher units bear a direct relationship to the number of students within a school system. Teacher units do not exist independently, but only in relation to school boards of education. By definition, the Hartselle system did not have any teacher units in the school year 1973-74, because Hartselle did not have a separate school system at that time.

Teacher units do not have an inde-pendént existence. Rather, it is a term of art, or formula, which expresses the number of teachers a county or city school system is allowed under the legislatively created minimum school program. § 16-13-50, et seq., supra. The legislative enactments to which the teacher units have reference, and to which Act 1277 has reference, make it clear that monies made available on the basis of teacher units are paid to county or city boards of education only.

The 107.9 teacher units which were attributable to the buildings located in Hartselle in 1973-74 were undeniably a part of the Morgan County school system. This result follows from the application of the unambiguous language of the Act which allots the funds on the basis of teacher units in 1973-74. For example, if the Act had provided that the allocation and distribution was based on teacher units of 1975-76, then under the statutory scheme Hart-selle would come within the Act’s provisions.

The circuit court found, and it is argued here, that the result we reach is inequitable because the money should follow the students. A contrary argument is presented in brief of Morgan County. We consider both of these arguments irrelevant to the issue we are called upon to decide. It is the legislature’s prerogative to allocate school funds and not the courts. When the legislature expresses itself in unambiguous terms through enactment of a statute, the courts, absent constitutional considerations, are bound thereby.

Our decision on this matter is fully supported by the reasoning of cases from other jurisdictions arising under similar circumstances. State v. Shuck, 273 Mo. 50, 199 S.W. 975 (1917); Sunol School Dist. v. Chipman, 138 Cal. 251, 71 P. 340 (1903); State v. Decker, 87 N.J.Law 431, 95 A. 135 (1915). The Hartselle school system is not entitled to any funds made available to city or county boards of education under § 8(c)(2) of Act 1277. Summary judgment should have been granted for Morgan County. It is so ordered.

The judgment of the circuit court is hereby reversed and the cause is rendered.

REVERSED AND RENDERED.

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

      . Teacher units are computed according to the statutory requirements of § 16-13-52, Code of Alabama, 1975.


author: BLOODWORTH, Justice.

text:
    Willis Eugene CHINICHE, a minor by and through his mother and next friend, Leona Juanita Fratto, and Leona Juanita Fratto v. Walter G. SMITH and Bonnie Smith.
    77-429.
    Supreme Court of Alabama.
    Sept. 1, 1978.
    Mark B. Reed, Mobile, for appellants.
    Robert E. McDonald, Jr., Mobile, for ap-pellees.
   BLOODWORTH, Justice.

This is an appeal by the minor-plaintiff from partial summary judgments in favor of defendants Bonnie Smith and Walter G. Smith. The appeal must be dismissed because summary judgments in favor of two defendants where there are multiple defendants is not a final judgment and will not support an appeal when the trial judge did not make the determination and entry required by Rule 54(b), Alabama Rules of Civil Procedure.

Plaintiff sued in three counts. Count 1 claims against Billy Gene Kimbrell, Jr., and Billy Gene Kimbrell, Sr., for negligence. Count 2 claims against Walter Gerald Smith for negligence and against Walter L. Smith, Shirley Smith, Walter G. Smith, and Bonnie Smith for negligent intrustment. Count 3 claims against the same parties named in Count 2 for wantonness. The record shows that on November 30, 1977, the motion of Billy Gene Kimbrell, Jr., and Billy Gene Kimbrell, Sr., to dismiss the action against them, with prejudice, was granted. The record further shows that on February 17, 1978, the motions of Bonnie Smith and Walter G. Smith for summary judgment were granted, without following the mandate of Rule 54(b), A.R.C.P., requiring therein an “express determination that there is no just reason for delay and upon an express direction for entry of judgment.” Therefore, neither is such a final judgment as will support an appeal. Powell v. Republic National Life Insurance Co., et al., 293 Ala. 101, 300 So.2d 359 (1974); Nelson-American Developers, Ltd. v. Enco Eng. Corp., 295 Ala. 185, 326 So.2d 103 (1976). See also Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975), where the history of the rule is traced.

The reason for the rule is that the order entered is interlocutory and is subject to revision at any time before a final judgment which adjudicates all the rights and liabilities of all the parties. Therefore, because it is subject to revision, it is not a final judgment and will not support an appeal. Authorities, supra. As this Court noted in Powell, supra, when it appears that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.

We pointed out in Powell, supra,

“This decision should not be regarded as creating a pitfall for the unwary or as heralding a retreat from this state’s ongoing movement in judicial reform. To the contrary, absent the provisions of Rule 54(b) an order of the kind now before us would not be appealable regardless of the hardship that might result to either party from a delay in the entry of a final judgment.
“The purpose of the provision in the rule that only a final judgment is appeal-able is to ensure that there be but one appeal of an entire case, thereby saving time and expense for litigants, as well as bench and bar. Rule 54(b) must also be considered in the light of other rules which allow a more liberal joinder of parties than heretofore known in this state. When so considered, Rule 54(b) would appear to represent a compromise between competing interests — the judicial economy of one appeal and the hardship caused by delay to one party in the entry of a final and appealable judgment.
“This holding is not to be construed as depriving appellant of a review of the order granting summary judgment by appeal from the final judgment ultimately entered in the cause nor as precluding the trial court from vacating its prior order and entering one in conformity with Rule 54(b). See 10 Wright and Miller, supra, § 2660 (1973).”

Therefore, we have no recourse but to dismiss the appeal.

APPEAL DISMISSED.

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


author: JONES, Justice. MADDOX, Justice BEATTY, Justice TORBERT, Chief Justice BLOODWORTH, Justice ALMON, Justice

text:
    SOUTHSIDE BAPTIST CHURCH et al. v. James L. DRENNEN. Agnes Irvine PACKER et al. v. James L. DRENNEN.
    77-130, 77-175.
    Supreme Court of Alabama.
    Sept. 8, 1978.
    Rehearing Denied Sept. 29, 1978.
    Norman W. Harris of Harris, Harris, Shinn & Harris, Decatur, for Southside Baptist Church, et al.

      Jack R. Thompson, Jr., Birmingham, for appellants, Agnes Irvine Packer and Kate Irvine Thompson.
    Thomas G. Steele, Athens, for Malone, Steele, Alexander & Corder, for appellee.
   JONES, Justice.

This appeal arises from an action to quiet title to certain land in Limestone County. In making its determination, the trial Court necessarily construed provisions of the Will of George S. Houston, pertaining to the meaning of the term “lawful issue.” The Court held that adopted children were included within the term “lawful issue” and that such adopted children would thus take under the provisions of the Will. We affirm.

The undisputed facts, stipulated at trial, indicate that George S. Houston executed a will in 1928 and died in 1934. His wife, Maggie Irvine Houston, having predeceased him, Houston was survived by two sisters (one of whom was a half-sister) and two nephews. One nephew, Charles E. Dren-nen, adopted Plaintiff-Appellee, James L. Drennen, in 1947. Charles died in 1960 and Houston Drennen, George Houston’s other nephew, died in 1961 — each leaving a will. Charles devised all his property to Appellee and his widow (who has quitclaimed her interests to Appellee). Houston Drennen died without children and devised all his property to his widow. She died and left whatever interest she had in the land in question to the Church Appellants.

As stated, stipulations of facts were entered at trial. Stipulation 14 provides:

“14. At the time of the death of Ellen Irvine Tolley there was no person in existence who was a blood relative of the said George S. Houston.”

Stipulation 17 provides, inter alia :

“. . . Kate Irvine Thompson and Agnes Irvine Packer are the closest living blood kin of Maggie Irvine Houston and Emma Houston Drennen and were such at the time of the death of Ellen Irvine Tolley.”

Ellen Irvine Tolley occupied the land as a life tenant until her death. This suit followed.

The pertinent provisions of George Houston’s Will are contained in “Item 2” thereof. It provides, inter alia :

“After the death of my wife, I want Ellen Irvine, my wife’s niece, who has lived with us for many years, to have the use of the house at Belle Mina, Alabama, so long as she may choose to use it for her home. While she is so using the house, she may also have the use of the whole Section 29. In allowing the said Ellen Irvine the use of the property above set out, she must use the rents and income, as far as may be necessary, to keep the house and farm buildings in a good state of repair and properly protect them by insurance, and pay all taxes against the property. My purpose is to provide a home for Ellen Irvine for and during her natural life. But should she decide at any time not to live on the farm as her home, then upon her abandonment of the farm as her home, or upon her death, should she continue to live there until she dies, the said house and land as above set out, shall at once pass to my two sisters, Mary Ella Houston and Emma Houston Drennen of Birmingham, Alabama, in fee simple, share and share alike, or to the survivor of them. Should they both die before the said Ellen Irvine or should they both be dead at the time she abandons the farm as her home, the said house and land shall go to my nephews, Houston and Charles Drennen, in fee simple, share and share alike. Should either of my said nephews die before the said Ellen Irvine, leaving lawful issue, then said issue shall take the share that the deceased parent would have taken. Should he not leave lawful issue, then the whole place shall go to the survivor. Should both of my said nephews die before the said Ellen Irvine, leaving lawful issue, then said issue shall take, share and share alike. Should both of my said nephews die before the said Ellen Irvine, without lawful issue, or should they both be dead without lawful issue surviving them, when the said Ellen Irvine abandons the farm, then in either event I give the home and land to any of my kindred then living, share and share alike.” (Emphasis added.)

At Ellen Irvine Tolley’s death, Mary Ella Houston, Emma Houston Drennen, Houston Drennen and Charles E. Drennen were all deceased. It is undisputed that should this Court deem James Drennen, Appellee, the lawful issue of Charles Drennen, no further question need be decided because such holding would clearly be dispositive.

Initially, it should be pointed out that Appellee has filed a Motion to Dismiss the Appeal of Agnes Irvine Packer and Kate Irvine Thompson as being untimely. Following trial, the Court entered its judgment on September 27, 1977. The Church Defendants filed a Motion to Amend the Judgment on October 11, pertaining to its cross-claim and costs of trial. The Court amended its judgment on October 31 and the Church Appellants filed their Notice of Appeal on November '8. Packer and Thompson filed their Notice of Appeal on November 28 — 62 days after the original judgment.

Appellee asserts that such notice was untimely because it violated Rule 4(a), ARAP. The tolling provision, he contends, is inapplicable because the post-judgment motion did not pertain to those parties. This argument is fallacious, however, because the original judgment was not final in that all the rights and liabilities of all the parties had not been adjudicated at that time. As we stated in Nelson-American Developers, Ltd. v. Enco Engineering Corp., 295 Ala. 185, 326 So.2d 103 (1976).

“. . . Nowhere do we find therein any ‘express determination that there is no just reason for delay and upon an express direction for the entry of judgment’ in accordance with the mandate of Rule 54(b) A.R.C.P.
“When there are multiple parties (as here) and multiple claims (as here) the rule requires such determination and direction for the reason that the order entered is interlocutory and ‘is subject to revision at any time before a judgment which adjudicates all the rights and liabilities of all the parties. Because it is subject to revision, it is not a final judgment and will not support an appeal.’ ” 295 Ala., at 187, 326 So.2d at 104.

See also Simpson v. First Alabama Bank of Montgomery, 345 So.2d 292 (Ala. 1977). Therefore, the appeal would not lie until entry of the amended judgment and the Motion to Dismiss the Appeal is not well taken.

In the case-in-chief, Appellants contend that the law, at the time of the execution of the Will, did not include adopted children within the term “lawful issue.” In support of this contention, they cite Russell v. Russell, 84 Ala. 48, 3 So. 900 (1887). Thus, they argue, the testator did not intend to include such persons within that class.

It is well settled that the intention of the testator is the polestar to guide a court in the construction of a Will. That is the law of the instrument and, in arriving at this intent, the Court should consider the instrument as a whole. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); and Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326 (1948). Where latent ambiguities arise, the intent of the testator may be ascertained not only by the writing itself, but also by attending facts and circumstances. First National Bank of Birmingham v. Klein, 285 Ala. 505, 234 So.2d 42 (1970); and 86 A.L.R.2d 12, § 3.

At the time the Will was executed, adopted children were generally not included in the term “lawful issue.” See Russell, supra. Before the testator’s death, however, the Legislature had passed, in 1931, a statute which permitted adopted children to inherit property by and through their adoptive parents. 1931 Ala. Acts, p. 504-8. Though not expressly controlling the provision before us, such statute is instructive as to the public policy of both that time and the present. See McCaleb v. Brown, 344 So.2d 485 (Ala. 1977).

In McCaleb, we stated:

“Therefore, we hold consistent with the adoption statute which creates a parent-child relationship between the adopter and the adoptee, that the latter is presumptively within the designation of the adopter’s descendants unless the context or circumstances clearly establish a contrary intention.” 344 So.2d, at 489. (Emphasis added.)

We can see no reason for following a different rule with respect to the term “lawful issue.” Thus, unless there clearly appears language or circumstances by which the testator foreclosed operation of the presumption, adopted children are included within the term “lawful issue.”

The Will, when read as a whole, does not indicate whether the testator intended to include, vel non, adopted children within the term “lawful issue.” The surrounding circumstances relate merely to the scrivener’s apparent abilities and the law of that time.

“[Appellants] argue, however, that the controversy can be resolved merely by looking at the word ‘issue’, which in their view has an established legal meaning that excludes adopted children. We disagree. Our cases have seldom discussed the term in relation to adoption, and enough uncertainty surrounds its usage that we doubt a competent draftsman who wanted to exclude adopted children would rely on the word ‘issue’ alone to express that purpose.” Johns v. Cobb, 131 U.S.App.D.C. 85, 402 F.2d 636 (1968).

The evidence here is insufficient to “clearly establish a contrary intention.” Therefore, adopted children, under the circumstances and facts as here presented, are included within the term “lawful issue” and, as such, James Drennen owns a fee interest in the property in question. This is in keeping with the strong public policy, expressed in both statutory and case law, equating adopted and natural children. See § 26-10-5(c), Code (1975); McCaleb, supra. Of course, our ruling does not foreclose the possibility of exclusion in subsequent cases wherein a more definite intent to exclude may be proved. See generally Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala. 1977).

The judgment of the trial Court is affirmed.

AFFIRMED.

FAULKNER, J., concurs.

MADDOX, SHORES, EMBRY and BEATTY, JJ., concur specially.

TORBERT, C. J., and BLOODWORTH and ALMON, JJ., dissent.

MADDOX, Justice

(concurring specially).

I concur in the result reached.

A state has the inherent right to regulate alienation, devise or descent of land within its borders. Phillips v. Phillips, 213 Ala. 27, 104 So. 234 (1925). The clear policy of this state, at least since passage of the Adoption Act, Act No. 405, in 1931, is that an adopted child has the same rights of inheritance to real estate or to the distribution of the personal estate of the adoptive parent “as if born ... in lawful wedlock.” In other words, I think our statutory system of giving an adopted child the same rights of inheritance as one “born ... in lawful wedlock” necessarily, in cases where the testator’s intention is not clear, supplies the intention; that is, the adopted child takes by designation of the system. Furthermore, a will speaks as of the date of the death of the testator, Murphy v. Traylor, 292 Ala. 78, 289 So.2d 584 (1974), and even though Mr. Houston made his will prior to the enactment of Act No. 405 in 1931, his death occurred after the passage of that Act. In my opinion, the Adoption Act would affect all wills involving adopted children where the death of the testator occurred after the passage of that Act, regardless of when the will was executed, because of the rule that a will speaks as of the date of the death of the testator and because the rule of statutory construction that the words of a legislative enactment will not be given retroactive effect unless the language used permits no other reasonable construction, does not apply in the construction of wills. 95 C.J.S., Wills, § 629, p. 894.

Alabama’s statutory scheme entitles an adopted child to succeed to the estate of the adopting parent in the same manner as if it had been a natural child of that parent; therefore, I think that Mr. Houston’s use of the term “issue” meant that he intended to include an adopted child, even though the child was adopted after the will was made and Mr. Houston was dead. Re Heard’s Estate, 49 Cal.2d 514, 319 P.2d 637 (1957).

BEATTY, Justice

(concurring specially).

To affirm this case on the reasoning of the majority opinion, while reaching perhaps an immediately favorable result, would set an undesirable precedent in the already tenuous area of testamentary construction.

A brief review of the pertinent facts shows that in 1928 the testator, George S. Houston, executed a will which in essence left a life estate followed by a series of future interests contingent upon survival of the life tenant in his Belle Mina, Alabama farm. The clause in question provided that:

Should both of my said nephews die before the said [life tenant], leaving lawful issue, then said issue shall take, share and share alike. . . . (emphasis added)

In 1931 the Legislature passed 1931 Alabama Acts, p. 504-8, which was intended to give an adopted child the rights of inheritance from his adopting parents as if born to them in lawful wedlock. In 1934 George S. Houston died and was survived by one half-sister and one full sister and his two nephews. His wife’s niece, Ellen Irvine Tolley, went into possession of the estate as life tenant and remained such until her death. In 1947 one of the nephews, Charles E. Drennen, adopted the appellee, James L. Drennen. Charles died in 1960, and his brother, Houston, died in 1961, neither leaving any other natural or adopted children. In 1976 the appellee brought an action to quiet title to the land in question. In that action the trial court construed the terms “lawful issue” to include the appellee. Appellants Packer and Thompson, nieces of the testator on his wife’s side, appealed the trial court’s decision. In essence this Court is called upon to decide whether or not in his will the testator intended a subsequently adopted child to be included within the terms “lawful issue.”

The majority is correct in their finding that “lawful issue” included adopted children in this instance. However, the majority holding that the testator’s testamentary intent in 1928 was to that effect because in 1931 the Legislature said something vaguely connected to this area of law is tenuous. It is not necessary to hold that a statute passed subsequent to the execution of a will is instructive as to the public policy prevailing previously at the time the will was executed and when the testator’s intentions were formed. The will in this case was executed three years before the enactment of the statute cited by the majority.

I do not believe that the statute cited can throw light on the “policy” prevailing at that time anyway. The pertinent portion of the statute recites:

[A]nd the child shall be invested with . the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock. . . . (1931 Ala. Acts. No. 405, p. 504)

Aside from having nothing to do with testate succession, this statute on its face would not apply to the fact situation at hand even if the testator had died intestate. The appellee was not the adopted child of the testator. “Adopted children do not inherit from collaterals.” Gamble v. Cloud, 263 Ala. 336, 82 So.2d 526 (1955). Hence, the appellee takes, if he takes at all, via the will as “lawful issue” of his father as that term was intended by the testator at the time of the execution of the will.

McCaleb v. Brown, 344 So.2d 485 (Ala. 1977) and Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala. 1977) are inapposite. Though both of those cases reflect, perhaps, the pervading policy today on adopted children as limited by statute, they should not be interpreted as delineating public policy beyond the parent-child relationship expressly required in the 1931 statute.

On the interpretation of “lawful issue,” Wright v. City of Tuscaloosa, 236 Ala. 374, 182 So. 72 (1938) held:

“In its legal sense, as used in statutes, will, deeds, and other instruments, ‘issue ’ means descendants; lineal descendants; offspring.” . . . (emphasis added)

A “descendant,” as we held in McCaleb v. Brown, supra, is “ ‘[o]ne on whom the law has cast the property by descent’.” 344 So.2d 485, at 488. Hence if we interpreted the meaning of “lawful issue” at the time of the execution of the will in 1928 then it is clear “lawful issue” would not include an adopted child. At least, it is just as infera-ble (and consistent with the law at the time) that his intention was to have his “lawful issue” determined as of the time the provision took effect if, indeed, it did take effect. Therefore, I believe that by using “lawful issue” the testator’s intention was to make a class gift.

“A class gift is one in which the donor intends to benefit a group or a class of persons. . . . ” Bergin & Haskell, Preface to Estates in Land and Future Interests, at 138. Henry v. Griffith, 242 Ala. 598, 7 So.2d 560 (1942).

Although none of the parties raised the issue it is clear from the will that the testator intended that there be a class gift to the “lawful issue” of his nephews, Charles and Houston Drennen “share and share alike” if neither of the nephews survived the life tenant. Neither did. As there was no living issue at the time of the execution, nor at testator’s death, under common principles it is clear that the class could not open until the death of the testator in 1934. The better view, however, in light of the language of the will, would see the class both opened and closed at the death of the last of the surviving nephews in 1961 (both having died before the life tenant). This is so because until the death of his uncle in 1961 — assuming both of the testator’s sisters had predeceased the nephews — the appellant had at most an undivided vested remainder in one-half of the property subject to partial divestment if his uncle had issue and predeceased the life tenant. When the uncle died without issue the class opened and appellant immediately became the only member of the class, and the class closed vesting in him, again assuming the sisters had already gone to their reward, the remainder in fee simple in the whole estate. If the class members were not to be determined, if at all, until events subsequent to the will’s execution, then it is certainly difficult to believe otherwise than that the testator intended the membership of that class to be determined at the time that the class should close whether by rule of convenience or because it was biologically closed as here which, as events showed, was after the 1931 statute and indeed after the death of testator.

Using this reasoning on the dispositive issue in this case we could uphold the law, reach the desired result, and avoid many future problems the majority opinion would unleash. Perhaps the chief problem would entail requiring a testator to foresee future legislation on intestate succession affecting the testamentary field. I do not believe we should require the testator and his scrivener to engage in prestidigitation so that they might clearly express intentions contrary to legislative policy not yet articulated, or to require the testator, once such a legislative policy has been stated, regardless of how difficult it would be to even know whether or not such a policy, or even what policy, has been stated, to change provisions in his will to take himself out of the purview of that policy. This is a great burden indeed, and one this case needn’t require. If we do require it, lawyers who draft wills had better exercise adroitness in creating savings clauses against such policy decisions.

SHORES and EMBRY, JJ., concur.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. As noted by the majority, the primary rule in construing a will is to determine the intent of the testator and give it effect. Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326 (1948). However, rather than apply a statute enacted by the Legislature three years after the execution of the will at issue, as did the majority, I would look to the law in existence in 1928, the time of the execution of the will, to determine whether the testator intended the term “lawful issue” to include an adopted child of one of his nephews.

The case law and statutory law in 1928 was clear that only natural children were included within the term “lawful issue.” Russell v. Russell, 84 Ala. 48, 3 So. 900 (1888). In choosing the language to express his actual intent, the testator, and the attorney who drew his will, no doubt relied upon this interpretation as being the generally accepted legal meaning of the term “lawful issue.” I would therefore hold that James W. Drennen, by reason of being an adopted child, was not intended by the testator to be within the “lawful issue” of Charles E. Drennen under the terms of the 1928 will at issue.

BLOODWORTH, Justice

(dissenting).

I dissent from Mr. Justice Jones’ majority opinion because I agree with Mr. Justice Beatty’s comment in his concurring opinion that such a holding “would set an undesirable precedent in the already tenuous area of testamentary construction.”

I cannot agree with the majority that the words “lawful issue” in testator’s will (when the same was executed in 1928) include “adopted children” just because in 1931 the legislature passed an act giving an adopted child the rights of inheritance from his adopting parents as if born to them in lawful wedlock.

I think a short history of our case law in this area is appropriate. In Russell v. Russell, 84 Ala. 48, 3 So. 900 (1888), this Court held that a gift to “child” or “children” did not include “adopted children.”

Following Russell, this Court held, in Hamilton v. Smith, 264 Ala. 199, 86 So.2d 283 (1956) that the use of the words “born” and “birth” in the pretermission statute was held to be indicative that such statute was intended to apply only to natural children and that an “adopted child” does not fall within the pretermitted1 heir statute.

Later, in Peck v. Green, 266 Ala. 321, 96 So.2d 169 (1956), this Court held that the words “child or children of any deceased child” in a will did not include the “adopted child” of deceased child of testator.

The 1931 act, (Tit. 27, § 5, Code of Alabama 1940) [now § 26-10-5 Code 1975], is materially different from the statute which existed in 1888 when Russell was decided. The 1931 statute was, in Peck, held not to be controlling, no doubt, in part, because the will in Peck was executed in 1917. The state of the law at the time of that execution was undoubtedly the rule of the Peck case.

As I pointed out in the opinion in Whitfield v. Matthews, 334 So.2d 876 (Ala. 1976) (which I authored for the Court), a testator and his attorney have the right to rely on the existing state of law at the time that a will is executed. In Whitfield, we held that a gift to “ ‘children now or later born to my son’ ” did not include an “adopted child” of the son.

In McCaleb v. Brown, 344 So.2d 485 (Ala. 1977), in a unanimous decision, we concluded that an “adopted child” is presumptively within the designation of the adopters’ “descendants” unless the context or circumstances clearly establish a contrary intention. I think this holding is consistent with our prior holdings. What makes McCaleb clearly distinctive from Peck is that, in Peck, the will was executed before the 1931 statute while, in McCaleb, the deed was executed after the 1931 statute was enacted.

In Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala. 1977) (another case I authored for the Court), we held, inter alia, that the phrase “my daughter’s children” included persons “adopted” by the daughter, following McCaleb. In Zimmerman, we discussed the contention that testators may have relied on previous case law to the effect that the term “children” does not include “adopted children,” the holding of Russell and Peck. We showed that this argument was vitiated, in Zimmerman, because testators had an exist ing adopted grandchild at the time of execution of the instruments in 1958, and spoke of the daughter’s children in terms of “him or her” although the adopted child was the only female child then existing. Thus, it was clear that testators contemplated the term “children” to include “adopted children.” Moreover, the instruments in question were executed after the 1931 act.

To summarize, I think our case law up to this point is consistent.

I concur in the views expressed by TOR-BERT, C. J., and ALMON, J., in their respective dissenting opinions.

ALMON, Justice

(dissenting):

I concur in the view expressed by the Chief Justice.

A further comment is in order because of my concurrence in McCaleb v. Brown, 344 So.2d 485 (Ala. 1977) and Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala. 1977). In each of these cases the document was drafted after the 1931 amendment to the adoption statute. Scriveners after that date were reasonably put on notice that if adopted children were intended to be excluded then express language to that effect should be employed. On the other hand, scriveners prior to that date should be able to comfortably rely on settled case law.

The fundamental purpose of the law of wills is to provide a means for people to direct the disposition of their property after death. To change the rules of construction after a will is drafted will unnecessarily thwart the intended property disposition.

I,therefore, respectfully dissent.


author: BLOODWORTH, Justice. EMBRY, Justice

text:
    Doris Lester HICKS v. Ida HICKS et al., etc.
    77-265.
    Supreme Court of Alabama.
    Sept. 15, 1978.

      John F. Dillon, IV and Jennie Lee Kelley of Dillon & Kelley, Alexander City, for appellant.
    Sam M. Phelps of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellees.
   BLOODWORTH, Justice.

This is an appeal from a judgment confirming the sale of land for division. The decree ordering the sale was affirmed by this Court in Hicks v. Hicks, 348 So.2d 1368 (Ala.1977). Appellant, plaintiff in the partition suit, is entitled to one-sixth of the proceeds of the sale. Appellees are entitled to the remaining five-sixths.

The land is 1441 acres of timberland in Pike and Crenshaw Counties. A public sale was conducted by the clerk of the circuit court, resulting in a sale of the 1441 acres to Paul Bryant, Jr., the only bidder, for $50,000. The purchaser later testified that he made his bid on behalf of the appellees (one of whom is his wife), the other owners of the land.

In his report to the trial court, the clerk recommended confirmation of the sale for $50,000, which he stated was, in his judgment, the reasonable cash market value of the land. Appellant filed an objection to confirmation and a motion to set aside the sale on the following grounds: (1) the sale price of $50,000 for 1441 acres is grossly inadequate and grossly disproportionate to its real value; (2) the present market value of land in Pike County and Crenshaw County is substantially more than the amount bid, $35 per acre; (3) the sole bidder is not a stranger to the partition suit; (4) the land was not sold so as to produce the highest possible sum for division; and, (5) if resold at a public or private sale, the land will bring substantially more than $50,000.

After a hearing on the objection and motion, the trial court confirmed the sale. This appeal followed.

Each case of this kind must be determined on its own facts. Berman v. Patton, 249 Ala. 317, 31 So.2d 134 (1947). Appellant recognizes that confirmation of judicial sales should not lightly be withheld, but she contends that her objections to confirmation in this instance are valid.

The purchaser at this sale is not a stranger to the proceedings, and this makes a difference. De Loach v. White, 202 Ala. 429, 80 So. 813 (1919). The standard for reviewing judicial sales when the purchaser is not a stranger is stated in Spence v. Spence, 239 Ala. 480, 487, 195 So. 717, 722-23 (1940):

“The purchaser at such a sale is due to have it confirmed if the price bid is measurably adequate, or not greatly less than its market value, although some of the parties may offer to bid a much larger sum at a resale.”

Accord, Sanford v. Sanford, 355 So.2d 365 (Ala.1978).

At the hearing on the motion, appellant presented testimony of an experienced real estate appraiser, who had made a personal inspection of the property, that the fair market value of the land is between $100,000 and $150,000. Appellant also placed in evidence the estate tax return for the estate of W. A. Hicks, original owner of the land, which valued the land at $144,100 in December 1974.

Appellees claim that there is conflicting opinion evidence as to the value of the land, ranging from $150,000 down to less than the sales price, $50,000. The evidence as to the low value was given by three witnesses. One, a Mr. Arrons, admitted that he had no opinion as to the fair market value on the date of sale, and would not be interested in buying the land at any price. Another, a Mr. Fowler, admitted that he too had no opinion as to the fair market value, and that the land had no value to him. The third, the clerk who conducted the sale, stated that he had no opinion as to the fair market value because he had not seen the land, but that he recommended confirmation only because there were others present at the sale although they did not bid. Thus, it is clear that these witnesses do not present any convincing evidence as to the value of the land as opposed to the testimony of appellant’s appraiser, and in this state of the evidence, it appears that the sales price was not measurably adequate.

Appellees further contend that any inadequacy in sales price is attributable to the appellant since she had a representative at the bidding but did not bid nor notify her post-sale bidder. Mr. Justice Embry, in dissent, cites Wilson v. Henderson, 206 Ala. 472, 90 So. 285 (1921), and Helena Coal Co. v. Sibley, 132 Ala. 651, 32 So. 718 (1902) for this proposition. But in those cases there was shown some active participation or intimidation of bidders. These factors have not been shown in the instant case.

The trial court concluded that to set aside the sale would be unfair to the defendants. But, as appellant contends, it is not unfair to make the bidder pay a fair price for the land if he wishes to buy it, and it is unfair to the appellant to make her take one-sixth of an inadequate price as her share in the sale.

A new sale is in order because the overriding objective in these cases is to sell the property so as to realize the best price obtainable with regard to fairness and the rights of all concerned. Copeland v. Giles, 271 Ala. 302, 123 So.2d 147 (1960).

Appellant, before confirmation, found a buyer willing to give two and one-half times the amount bid at the sale ($125,000) and willing to deposit this amount in court to guarantee that price on resale. In a similar case, this Court affirmed a trial court which ordered a resale when complainants found a purchaser willing to give an amount greatly in excess of the bid price and who deposited that amount in court. Taylor v. Wilson, 233 Ala. 182, 170 So. 833 (1936). See also Jones v. Bridges, 336 So.2d 1113 (Ala.1976), where a higher subsequent bid was deposited and resale was conditioned upon opening the bidding at that amount, and Deverell v. Horton, 285 Ala. 588, 234 So.2d 879 (1970), where a higher subsequent bid was considered to be evidence of the inadequacy of the initial sales price.

It is thus that we reverse and remand this cause to the trial court with directions to order another public sale on condition that the amount of $125,000 is deposited by K. M. Wall by certified or cashier’s check with the Clerk of the Circuit Court, within 30 days from the date of the release of this opinion, such sum to become the opening bid; and, if said K. M. Wall fails in this condition, the cause to stand affirmed.

REVERSED AND REMANDED WITH DIRECTIONS, ON CONDITION.

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

ALMON, EMBRY and BEATTY, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent.

This case is before this court for the second time. On the previous appeal, from a judgment ordering a sale for division of certain lands, a plurality of the court affirmed. See Hicks v. Hicks, 348 So.2d 1368 (Ala.1977).

A sale at public auction was then conducted by the clerk of the circuit court after proper advertisement according to law. The clerk reported to the trial court that the land was sold to one Paul Bryant, Jr., for the sum of $50,000, which the clerk reported as being the reasonable cash market value of the land, in his best judgment.

In my judgment, the only issue for review is whether, under the facts of this particular case, the trial judge abused his discretion when he confirmed the sale for division.

Doris Lester Hicks prevailed in her contention that she was entitled to require a sale for division of the entire tract of land although the other parties in interest had offered to allow her to select any 240 acre portion of it (a one-sixth interest). Upon sale, she is entitled to receive one-sixth of the sale price. See Hicks v. Hicks, supra.

One representing her attended the bidding but made no bid in her behalf. She, Doris, made no attempt to notify prospective bidders and procure their attendance at the sale. The public sale of the timberland was attended by those in the business of buying and selling that type land, approximately ten in number. The only bid made, in the amount of $50,000, was not by a stranger to the proceedings. Doris, nor anyone on her behalf, made any effort to notify the post-sale bidder of the sale or to secure his presence at the bidding. At the hearing on the objection to confirmation and motion to set aside the sale the evidence was disputed on the question of the adequacy of the sale price of $50,000 for the land; that is to say, whether $50,000 represented the fair market value of the land, or less or more than its value.

In actions for judicial sale of real property for division of the proceeds among joint owners or tenants in common, confirmation of such sales rests in the wise discretion of the trial court to be exercised according to the rules established by statutes and case-law; further, that discretion will not be revised except for abuse in exercising it. Section 6-9-147, Code 1975. Martin v. Jones, 268 Ala. 286, 105 So.2d 860; Spence v. Spence, 239 Ala. 480, 195 So. 717.

Where the purchaser at a judicial sale is not a stranger to the proceedings, the sale will be confirmed if the bid price is measurably adequate, or not greatly less than its market value even though an offer is made to bid a much larger sum at resale; and, on review of an ore tenus case dealing with a sale of land for division the evidence is not weighed as to its reasonably satisfying effect on the issues tendered; rather, in considering it, all favorable presumptions are indulged to sustain the trial court’s conclusions. Those conclusions will not be disturbed unless they are palpably erroneous or manifestly unjust. Sanford v. Sanford, 355 So.2d 365 (Ala.1978).

Appellant, Doris Hicks, contends there was abuse of discretion in confirming the sale for the reasons made the grounds of objection and of the motion to set aside the sale, set out earlier in the majority opinion.

The trial court, in its judgment confirming the sale, concluded from the evidence at the confirmation hearing that there was no showing that the sale was infected with fraud, oppression, irregularity, or error, that even if Paul W. Bryant, Jr., be considered a party, his offer of $50,000 appeared to be a bona fide one under the evidence and did not raise an inference or presumption of fraud; that the issue of confirmation should be decided with a view to fairness and regard to the rights of all concerned; that the sale was open to the public; that all parties and strangers had a fair right to bid; that the sale determined what a willing purchaser would pay a willing seller; that the real value of the property was fairly established when sold by the clerk of the court, and to set aside the sale because of the offer (of $125,000) made in open court at the confirmation hearing by Doris Hicks’ counsel would be unfair to defendants.

The conclusions regarding actual value reached by the trial court were based upon conflicting opinion evidence of value ranging from $100,000 — $150,000 down to $50,-000 — less than $50,000. The trial court determined, as it had the right, that the $50,-000 figure, under the evidence, more accurately reflected the fair market value of the land than did the $100,000 — $150,000 figure.

Having made that determination, the sale was due to be confirmed even though the purchaser was not a stranger to the proceedings because the finding necessarily was that the price was measurably adequate and not greatly less than market value in spite of the post-sale higher bid. Sanford v. Sanford, supra.

No doubt, refusal of the trial court to set aside the sale because of the $125,000 post-sale offer made in open court by plaintiff’s (Doris Hicks’) counsel on the basis that to do so would be unfair to defendants was founded on the evidence that not only was Doris Hicks represented at the sale, and no bid made in her behalf, neither was any effort made to notify the post-sale bidder of the prior public sale and to procure his presence there. It follows that within the province of the trial court’s discretion was the conclusion that inadequacy of price, if any, paid at the public sale could properly be attributable to plaintiff, Doris Hicks, and she would not be permitted, after sale, to contend that the land was not sold for its fair value. See Wilson v. Henderson, 206 Ala. 472, 90 So. 285 (1921), and Helena Coal Co. v. Sibley, 132 Ala. 651, 32 So. 718 (1902).

There was no abuse of discretion upon the part of the trial court when the judgment of confirmation was entered, therefore I would affirm the judgment.

ALMON and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Tyrone BROUGHTON, a minor, who sues by his next friend and mother, Dorothy Broughton v. James Ed KILPATRICK and Grover Knotts.
    77-224.
    Supreme Court of Alabama.
    Sept. 22, 1978.

      J. Ronald Storey, Dothan, for appellant.
    Brantley & Calhoun, Troy, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment dismissing the complaint of the plaintiff, a minor, Tyrone Broughton, who sued by his next friend, his mother. The judgment was entered on a jury verdict in favor of the defendants, James Ed Kilpatrick and Grover Knotts. The dispositive issue is whether prejudicial error occurred when plaintiff was not permitted to introduce evidence of his medical expenses incurred because of the treatment for injuries received in a collision with a truck driven by defendant Kilpatrick and owned by defendant Knotts.

The minor, Broughton’s, action was for negligence on the part of Kilpatrick and Knotts in causing a collision between the motorcycle operated by Broughton and a truck owned by Knotts and being operated by Kilpatrick. Broughton, the minor plaintiff, sought damages, including medical expenses.

During the course of the trial the minor plaintiff attempted to introduce evidence concerning medical expenses incurred by him as a result of injuries received in the collision. The trial court would not admit the evidence. The trial resulted in a verdict and judgment for defendants. In his motion for trial, plaintiff urged as error the exclusion of this evidence. The motion was denied and this appeal ensued.

We reverse.

Broughton cites Cabaniss v. Cook, 353 So.2d 784 (Ala.1977), in support of his argument that evidence of his medical expenses was erroneously excluded by the trial court. In this he is correct, however, it should be noted that Cabaniss was a case of first impression in Alabama and was decided by this court on the very day that the appeal was perfected in this case (22 December 1977). In Cabaniss the action was by the minor’s father, as next friend, and we held that where the father, acting ai next friend of the minor, brings suit for his minor child, claiming, inter alia, medical expenses for the minor, he waives, in the child’s favor, his (the father’s) right to recover the expenses of medical treatment and loss of services and is thereafter estopped to claim them in a separate suit. The separate suit mentioned is that authorized by § 6-5-390, Code 1975.

“A father or, in case of his death or desertion of his family, his imprisonment for a term of two years or more under a conviction for crime, or his confinement in an insane hospital or if he has been declared of unsound mind, the mother may commence an action for an injury to a minor child, a member of the family.” (emphasis added)

In this case, the evidence discloses the father was deceased. The rationale of Cabaniss applies; thus we hold that exclusion of evidence of medical expenses was error.

Appellees contend that reversal cannot be based upon action of the trial court excluding evidence of the hospital expense, even if error, since the jury verdict was against plaintiff’s right to recover at all, and error in the rejection or admission of evidence going merely to the extent of injury and damages will not work a reversal where, as here, there was a general verdict absolving defendants from liability.

This is correct statement of the general rule if it be assumed the evidence is merely of the severity of injury or extent of damage. The general rule or principle is stated in Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237 (1927):

“* * * Error in the rejection of evidence going merely to the extent of injury and damages, where the record clearly shows a finding for the defendant because not liable for the injury, will not work a reversal. * * * ” (emphasis added)

See also, Appeal & Error, § 1052(5), Ala. Dig. Vol. 2A.

This has been the rule of our cases for many years. Thus, we cannot say that rejection of such evidence is reversible error, for the reason there was a general verdict in favor of defendants. Since we reverse this cause on other grounds, we hold such evidence should be admitted on retrial.

Broughton correctly urges another basis for reversal. The following occurred during direct examination of defendant Kilpa-trick:

“BY MR. CALHOUN:
“Q You recall, Mr. Kilpatrick, that you are still under oath. You were questioned earlier about an accident that happened while you were driving a truck. Would you please tell the Jury where this accident happened and the facts surrounding the accident as to how it happened?
“A I was coming back from Cedar Springs up 51, come up to where 16 runs into 51. It is about, ten, maybe twenty feet from the intersection, this motorcycle just came shooting out of the road. I would say about twenty-five or thirty miles an hour. I swerved over to the left, pulled the air horn down and they just looking like that and run right over into the left hand lane. Wasn’t no way to miss them. If they had stayed on the right_
“MR. SMITH: We are going to object to him interjecting no way to miss them. That is a conclusion on his part, Your Honor. It is invading the province of the Jury.
“THE COURT: I am going to overrule you there. I overrule you. Go ahead.
* sf: sfc s}« $
“Q If the motorcycle stayed in the right hand lane going in the direction you were going, would you have missed the motorcycle by steering over to the left?
“MR. SMITH: We object. We object.
“THE COURT: I overrule you.
“MR. SMITH: Your Honor, that certainly calls for a conclusion on his part and that is a very material part of the issues. And he is able to give his judgment as to whether or not he would have missed them.
“THE COURT: Well, I overrule you.
“MR. SMITH: We reserve an exception on that.”
“ * * * ‘Q. In your judgment, what distance west of that entrance would you have been completely clear of the truck, if he had not veered over on you?’

Broughton says the trial court erred to reversal in allowing Kilpatrick to give his conclusion as to material issues which were for determination by the jury.

Kilpatrick and Knotts say there was no error in permitting Kilpatrick to state the conclusion as set out because the conclusions were properly admitted as a well established exception to the opinion evidence rule: the collective facts rule. The latter rule permits statement of the ultimate fact where it is practically impossible to reproduce or adequately describe primary facts on which inference is based. But where the opinion or conclusion invades the province of the jury, as here, it is error to permit the question to be asked and the answer given. Holman v. Brady, 241 Ala. 487, 3 So.2d 30 (1941). In Holman, objection was made to the following questions to which the following answers were given:

“The answer was: ‘A. Before we passed the entrance to that place, I would have been completely by him.’
“ * * * ‘Would you say you would have passed him as far as fifty feet from the intersection if he had not cut over on you?’ The witness answered, ‘Yes, sir.’ * * * ft

The court held:

“ * * * In permitting the foregoing questions and answers, reversible error intervened, such being material conclusions from detailed facts, which the jury itself should have been allowed to draw from the evidence.”

We perceive no less reason in this case to hold admission of Kilpatrick’s conclusions to be reversible error than did the court in Holman finding error in admission of the answers above.

Broughton further contends the jury verdict was contrary to the great weight of the evidence. Such must be raised as a ground for the motion for new trial before it can be considered by this court. Woods v. Westbrook, 356 So.2d 153 (Ala.1978). He failed to raise the issue in his motion for a new trial. Although he did so in a second motion, it was not timely filed and will not be considered by this court. Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So.2d 431 (1971).

For the reasons given we are compelled to reverse and remand this case.

REVERSED AND REMANDED.

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