author: SMITH, Justice,

text:
    Robert SYLAR v. STATE of Mississippi.
    No. 49439.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    Harry L. Kelley, Jackson, Edward T. M. Garland, Frank Joseph Petrella, Mark J. Kadish, Atlanta, Ga., for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court:

The indictment against Robert Sylar charged that he “did then and there wilfully, knowingly, unlawfully and feloniously sell to Louis Guirola, a person, . controlled substance without authority of law, to-wit: Marijuana, . , . ” On that indictment he was tried and convicted in the Circuit Court of Hinds County and sentenced to serve a term of ten years in the penitentiary.

Of the several matters assigned and argued as requiring reversal of Sylar’s conviction it is necessary to notice only one: It is contended on Sylar’s behalf that Sylar was entitled to an instructed verdict of acquittal because the evidence showed that he had been entrapped by agents of the state.

At the time of the alleged offense Robert Sylar was a young man, recently married, who had been educated at Mississippi State University and Louisiana State University. He was regularly employed by The Water Department of the City of Jackson as night chemist at the City Water Works. There is no evidence in the record showing that Sy-lar had a previous criminal record. He had no history of trafficking in drugs nor was it established that he had any predisposition to do so. Reduced to its essentials the case was this:

An undercover agent employed by the Mississippi Narcotics Bureau, who was a “friend” of Sylar, asked him to deliver a one pound package of marijuana, which the agent had in his possession, to another person, who also was an agent of the Mississippi Narcotics Bureau. After declining this request on several occasions Sylar consented. The “friend” then supplied Sylar with the package of marijuana and instructed him to deliver it to the second agent and to collect from the latter $120. Sylar did this and the second agent “paid” him the $120 from state funds “appropriated for the purpose”, Sylar having returned this to the first agent’s residence. Stated more succinctly, the marijuana was supplied by the State of Mississippi through its agent, who procured its delivery by Sylar to another agent of the state who gave Sylar the $120 in state funds, returned by Sylar to the first agent.

The above facts are undisputed in their essential particulars. The first agent did not testify. The testimony of the second agent to the effect that: he tried unsuccessfully to get Sylar to recede from the $120 which the first agent had instructed Sylar to collect, that he discussed the sale with Sylar “in depth,” told Sylar that the quality of the marijuana was inferior, that, he said, Sylar agreed that it was and said that in the future it would be better, that Sylar knew that the package contained marijuana, does not alter the fact that the transaction was a fiction and merely “a play or charade” and that no actual sale took place. Sylar was made a mere conduit to hand marijuana supplied him by one state agent to another state agent and receive from the latter state money returned to the original state agent.

The state relies upon Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), as requiring the affirmance of the conviction. In Hampton, the petitioner was convicted of distributing heroin in violation of 21 U.S.C. § 841(a)(1). The opinion in Hampton makes it clear that the idea originated with Hampton who initiated the proposal to sell drugs. It all began with Hampton’s statement to an undercover agent that he needed money and knew where he could get some heroin. This led through various steps to the eventual transactions which were the basis of Hampton’s conviction. In Hampton, the Court stated that the defense of entrapment was rejected because a predisposition of the defendant to commit the crime was shown and that misconduct of the government agents was not sufficient to support the defense. The Court said that governmental misconduct was not the basis upon which the defense of entrapment should rest and repeated its view that the conviction should be upheld because it was based upon evidence justifying a finding that there was a predisposition on the part of the defendant to commit the crime and that, in such a case, entrapment was not a valid defense.

The Court, in the controlling opinion in Hampton, said: “it is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” The Court said that the defense of entrapment was not, therefore, available to Hampton who relied upon a statement in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) that “we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”

The case now before this Court is essentially different on its facts from that in Hampton. In Hampton the original idea and proposal to commit the crime came from Hampton himself. Here Sylar did no more than yield to the importunities of one state agent to deliver marijuana supplied by the state to another state agent.

Since the decision in Hampton, the New Jersey Supreme Court has had occasion to deal with a case in which the defense of entrapment was interposed. In State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976), the New Jersey Supreme Court stated this rule:

This appeal poses the issue whether entrapment is established as a matter of law if an informant, while acting in concert with an undercover police officer, but unknown to the officer and contrary to instructions, supplies the defendant with heroin for the purpose of then arranging a sale of the heroin by defendant to the undercover officer, which sale is then consummated. We hold that it is. (364 A.2d at 10).

In the New Jersey case, the Court reached its conclusion after reviewing the United States Supreme Court’s decision in Hampton and held that a defendant’s predisposition to commit the crime does not preclude the defense of entrapment where the proof established that the government was both the supplier and buyer of contraband and in such a case entrapment is established as a matter of law.

Talbot was reversed and, although remanded for determination of a certain factual conflict on a material point, the Court said:

We hold that where an informer or other agent generally acting in concert with law enforcement authorities, furnishes a defendant with heroin for the purpose of then arranging a sale of the heroin by the defendant to an undercover officer, which sale is then consummated, defendant has been entrapped as a matter of law even though predisposition to commit the crime may appear, and notwithstanding that the furnishing of the heroin is unknown to and contrary to the instructions of the law enforcement authorities. Those authorities, having set the agent to work in enticing the defendant, the prosecution should bear the onus of the means selected by the agent. See State v. McKinney, 108 Ariz. 436, 501 P.2d 378, 381-382 (1972); State v. Boccelli, 105 Ariz. 495, 467 P.2d 740, 742 (1970); People v. Strong, 21111.2d 320, 172 N.E.2d 765, 768 (1961); State v. Overmann, 220 N.W.2d 914, 916-917 (Iowa Sup.Ct.1974); Jones v. State, 285 So.2d 152, 159 (Miss.Sup.Ct.1973); State v. Sainz, 84 N.M. 259, 501 P.2d 1247, 1248 (Ct.App.1972); Lynn v. State, 505 P.2d 1337, 1344 (Okla.Cr.App.1973). But see Proposed New Jersey Penal Code § 2C:2-12 (1971). (364 A.2d at 13).

The New Jersey Supreme Court quoted from its decision in State v. Dolce, 41 N.J. 422, 431, 197 A.2d 185 (1964) as follows:

As we said in Dolce, supra, 41 N.J. at 431, 197 A.2d at 190, ‘courts .will not permit their process to be used in aid of a scheme for the actual creation of a crime by those whose duty it is to deter its commission.’ However, this does not mean that the police may not use artifice to trap the unwary criminal. Rather, entrapment is concerned with the manufacturing of crime by the police and the ensnaring of unwary innocents. (364 A.2d at 11).

In the New Jersey case the Court pointed out that the decisions of the United States Supreme Court on the subject were not predicated upon constitutional grounds and said:

Hampton and the other Supreme Court decisions mentioned above were concerned with construction of the federal statutes and to some extent with the supervisory power of the federal courts to bar federal convictions because of “outrageous” police conduct. Such rulings, however, are not controlling on state courts which are free to formulate and establish the contours of the defense of entrapment for their own jurisdictions. (364 A.2d at 12).

In Jones v. State, supra, cited by the New Jersey Supreme Court in State v, Talbot, supra, the factual situation bears a marked resemblance to that in the case at bar. In Jones, Justice Sugg delivered the opinion of this Court in which he collated and exhaustively reviewed the authorities dealing with the defense of entrapment. Speaking for this. Court, Justice Sugg concluded as follows:

In Sorrells, supra, [Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932)] the Court addressed itself to the evidentiary problems in cases where the defense of entrapment was interposed. In Sorrells the Court stated:
Objections to the defense of entrapment are also urged upon practical grounds. But considerations of mere con-verbenee must yield to the essential demands of justice. The argument is pressed that if the defense is available it will lead to the introduction of issues of a collateral character relating to the activities of the officials of the government and to the conduct and purposes of the defendant previous to the alleged offense. For the defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. Grimm v. United States, 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550, supra. The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If this is the fact, common justice requires that the accused be permitted to prove it. The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense. (287 U.S. at 451, 53 S.Ct. at 216, 77 L.Ed. at 422).
Although the rules announced in the above cases are not binding in state prosecutions under state law, we are of the opinion that the above quotation from Sorrells pertaining to the scope of proof is well reasoned, has a sound basis in logic and is consistent with the holding of our cases pertaining to the defense of entrapment, particularly Laughter and Smith, supra.
The defendant was entitled to a directed verdict and we therefore reverse and discharge the defendant. (285 So.2d at 159-160).

We adhere to the conclusions reached in Jones and hold that Sylar’s request that the jury be instructed peremptorily to find him not guilty should have been granted. The conviction is reversed and Sylar is discharged.

REVERSED AND APPELLANT DISCHARGED.

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


source: Caselaw Access Project

license: Public Domain

text:
    NORTH AMERICAN VAN LINES, INC. v. LeCARLETON’S INTERIORS, INC.
    No. 49027.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Page, Mannino & Peresich, Ronald G. Peresich, Biloxi, for appellant.
    Hurlbert & O’Barr, George F. Bloss, III, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


author: ROBERTSON, Justice,

text:
    STATE MORTGAGE AND INVESTMENT CO., INC. v. Lydia M. BARNES.
    No. 49008.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Teller, Biedenharn & Rogers, George W. Rogers, Jr., Vicksburg, for appellant.
    Paul G. Alexander, William R. Barnett, Jackson, for appellee.
    Before INZER, ROBERTSON and WALKER, JJ.
   ROBERTSON, Justice,

for the Court:

After a trial on the merits, a judgment was rendered, on July 30, 1972, in favor of Lydia M. Barnes against State Mortgage and Investment Company, Inc., by the County Court of the First Judicial District of Hinds County. State Mortgage timely perfected its appeal to the circuit court. The record was filed in the circuit court on September 11, 1972.

The appellee, on October 20, 1972, filed a motion to dismiss the appeal because the appellant had not filed an assignment of error or brief within 30 days of the filing of the record, as required by local rules of procedure of the Circuit Court of the First District of Hinds County.

Paul G. Alexander, attorney for appellee, certified that he mailed a copy of the motion to: “George W. Roberts (sic), Jr., 1201 Cherry Street, Vicksburg, Mississippi, Attorney for appellants”, on October 20, 1972, which was a Friday. On the following Wednesday, October 25,1972, the motion to dismiss was sustained, and a judgment was taken dismissing the appeal and affirming the judgment of the county court.

The attorney for the appellant on the appeal, George W. Rogers, Jr., of the Vicksburg Bar, on November 1,1972, filed a motion to reinstate the appeal, asserting that he was not a member of the Hinds County bar, did not try the case in the Hinds County Court, and was not familiar with the local rules, but that upon receipt of a copy of the Motion to Dismiss, he immediately contacted Thomas Sanford, the attorney who had represented the appellant in the trial court. Rogers was assured by Sanford that he had contacted Paul Alexander, the attorney for the appellee; that Sanford had:

“[Gjained the understanding that said motion would be set for hearing and appellant would be provided an opportunity upon hearing thereof to request additional time and present the same to the Court and so reported this conversation to the undersigned.”

The motion to reinstate the appeal continued:

“3. That, immediately thereafter, the Attorney for the appellant presented an order to the Court dismissing the appeal without notifying either the undersigned or the Honorable Thomas Sanford that this was being done and the said order was entered prior to the time that either Honorable Thomas Sanford or the undersigned knew that it was being presented to the Court.

“4. That the undersigned has since secured copies of the rules of this Court governing appeals and did show that Rule 5 thereof reads as follows:

‘Rule 5. After the record is filed in this Court, if no action is taken by the appellant and none of the requirements of the above have been complied with, after sixty (60) days the appeal may be dismissed and the judgment of the lower Court reentered.’ ”

Appellant then stated in its motion that 60 days had not elapsed, and that even under Rule 5 of the local rules the appeal should not have been dismissed, and that the appeal should be reinstated.

Appellant then promised in its motion that:

“[Assignment of errors will be filed immediately and the brief on behalf of appellant will be filed with the Court and delivered to the counsel for the appellant on or before November 10, 1972, or sooner, if ordered by the Court, . . . .”

The senior Hinds County Circuit Judge, Honorable M. M. McGowan, who had dismissed the case, was sick at the time and for a long time thereafter and has since passed away. The motion to reinstate the appeal was overruled on June 9, 1975, by Honorable Francis S. Bowling, the circuit judge who succeeded Judge McGowan.

The appellee contends that the judgment of the circuit court of October 25, 1972, dismissing the appeal for failure to comply with Rule 1 of the local rules of court:

“[Bjecame final upon the expiration of the time for appeal and that, even if the allegations set out by the Appellant in its Motion to Reinstate Appeal were true, the Court was powerless to act to set aside the judgment almost three years later in 1975.”

A motion to reinstate the appeal is analogous to a motion for a new trial or a motion for judgment n.o.v. and tolls the running of the statute of limitations on perfecting an appeal to this Court.

In Moore v. Montgomery Ward & Co., 171 Miss. 420, 156 So. 875 (1934), this Court said:

“At common law a judgment was not entered until all motions which challenged its validity or correctness were disposed of; and while under our practice the clerk enters the judgment when rendered, it is nevertheless subject to the control of the trial court, and may be modified or vacated by the court in response to a motion for a new trial, or other proper motion challenging the judgment, if the motion be seasonably made; and this control continues, as at common law until the motion is finally ruled upon.
“. . . when seasonably made the trial court must dispose of that motion, and until so done, the judgment remains, none the less, under the control of the trial court and, as respects the matter of appeal, is not final.” 171 Miss, at 422-24, 156 So. at 875-76. (Emphasis added).

In order to show good cause for reinstatement, the appellant on November 21, 1972, filed an assignment of error and brief in support thereof in the Circuit Court of the First Judicial District of Hinds County, Mississippi, and mailed a copy thereof to Paul G. Alexander, Attorney for the appellee, on that day.

This Court is of the opinion that the Circuit Court was in error in overruling the motion to reinstate the appeal, and that the motion to reinstate the appeal should have been sustained.

The judgment is, therefore, reversed, and this cause remanded to the Circuit Court for its review on the merits.

REVERSED AND REMANDED.

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


text:
    Sadie Mae TAYLOR v. O’Neal GRIFFITH.
    No. 49021.
    Supreme Court of Mississippi.
    Dec. 14, 1976.
    Earl R. Cruthirds, Jackson, for appellant.
    McLaurin & Nicols, George T. Kelly, Jr., Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ., and REX GORDON, Commissioner.

AFFIRMED.


text:
    Ira J. KANTOR et al. v. The MULLENS CO., INC.
    No. 49045.
    Supreme Court of Mississippi.
    Dec. 14, 1976.
    T. H. Pearson, Clarksdale, for appellants.
    Holcomb, Dunbar, Connell, Merkel & Tol-lison, Charles M. Merkel, Clarksdale, for appellee.
   Appeal from Circuit Court, Coahoma County; J. C. Feduccia, Judge.

Before PATTERSON, P. J., and SMITH and LEE, JJ., and MICHAEL D. SULLIVAN, Commissioner.

AFFIRMED.


text:
    Lou E. MANNESS v. BIG YANK CORPORATION and the Home Indemnity Company.
    No. 49051.
    Supreme Court of Mississippi.
    Dec. 14, 1976.
    Omar D. Craig, Oxford, for appellant.
    Watkins & Eager, Velia Ann Mayer, Jackson, for appellee.
   Appeal from Circuit Court, Yalobusha County; Dick R. Thomas, Judge.

Before PATTERSON, P. J., SMITH and LEE, JJ., and JACK B. WELDY, Commissioner.

AFFIRMED.


text:
    Troyce E. GUICE v. James A. BROWN et al.
    No. 49017.
    Supreme Court of Mississippi.
    Dec. 14, 1976.
    Zuccaro, Riley, Pintard & Brown, J. Walter Brown, Jr., Natchez, for appellant.
    Adams, Forman, Truly, Ward, Smith & Bramlette, David C. Bramlette, III, Gwin & Gwin, Lucien C. Gwin, Jr., Natchez, for appellees.
   Appeal from Chancery Court, Adams County; Curtis L. Collins, Chancellor.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

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


text:
    Larry JONES v. STATE of Mississippi.
    No. 49442.
    Supreme Court of Mississippi.
    Dec. 14, 1976.
    Bernard Gautier, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

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

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, SUGG, BROOM and LEE, JJ., concur.


author: MADDOX, Justice. JONES, Justice

text:
    Dany L. SCHWEITZER v. Hon. James C. ESCO et al. Margaret WALKER v. Hon. James C. ESCO et al.
    SC 1615, SC 1632.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    Rehearing Denied Dec. 30, 1976.
    Charles G. Spradling, Jr., Huntsville, for Legal Aid Society of Madison Co., appellants.
    Ford, Caldwell, Ford & Payne and J. R. Brooks, Huntsville, for Hon. James C. Esco.
    Humphrey & Smith, Huntsville, for Red-stone Federal Credit Union and Public Finance Co. of Ala.
    William J. Baxley, Atty. Gen. and George W. Royer, Jr., Asst. Atty. Gen., amicus curiae, for appellants.
   MADDOX, Justice.

These consolidated appeals raise this question: Should an indigent person, in a civil action, be required to post a statutorily-required bond in order to appeal an adverse judgment from a lower court to the circuit court? We hold that the bond required to be posted by statute is necessary; therefore, we affirm the Circuit Judge’s refusal to mandamus the lower judge to order him to permit the appeal to be taken even though the appellant had not posted the bond. The appeal here is from the circuit court’s refusal of mandamus.

For a better understanding of the issue, we believe it would be helpful to set out some of the facts. Appellants here, Schweitzer and Walker, had borrowed money from Redstone Federal Credit Union and Public Finance Company respectively, and when they defaulted, their individual creditor sued each respectively in the General Sessions Court of Madison County to recover the unpaid balance due on the loan. Schweitzer and Walker were represented in these actions by the Legal Aid Society of Madison County. In their respective case, each answered the complaint and filed a counterclaim alleging violations by each creditor of the Federal Truth in Lending Act and Federal Reserve Regulation Z.

According to the petition for mandamus filed by each debtor in the circuit court, Judge Esco of the General Sessions Court, on April 9, 1975, ruled adversely to each of them on their affirmative defenses, and also denied them any relief on their counterclaims. Each debtor alleged in the mandamus petition in Circuit Court, as follows:

“On May 26, 1975, Petitioner, in view of said rulings, stipulated to the entry of a judgment, reserving all rights of appeal to this Court.”

Even though the Act creating the General Sessions Court provides a method of appeal (Section 14, Act No. 1178, Acts of Alabama, 1973, pp. 1988, 1992) it does not specifically refer to Title 13, Article 6, Code of Alabama, as the procedure required to “effect” an appeal. We believe that the Legislature intended that the general statutes governing appeals from inferior courts to circuit courts should apply. We so hold.

Having determined that the Legislature intended the general law governing appeals from inferior courts to apply, we now proceed to decide what is required under the general law to perfect an appeal. Title 13, Sections 478 and 479 provide:

“Bond for appeal or certiorari. — Unless otherwise provided, no cause can be carried from a justice’s court to the circuit or other court of like jurisdiction by appeal or certiorari, unless the party applying for such appeal or certiorari first executes bond, with sufficient sureties, payable to the adverse party, with condition to pay such judgment as may be rendered against him by the court to which the cause is sought to be removed; and no cause can be removed from a justice’s court after six months from the rendition of the judgment, by certiorari.”

The debtors say that “serious doubt exists as to the constitutionality of the double bond requirement of Title 13, Section 479 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution,” citing Lindsey v. Normet, 405 U.S. 56, 77-79, 92 S.Ct. 862, 876-77, 31 L.Ed.2d 36 (1972); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Dixon v. Davis, 521 S.W.2d 442, 444-45 (Mo.1975); and Carter v. University of Washington, 85 Wash.2d 391, 536 P.2d 618, at 622-23 (Wash.1975).

Even though they express doubt as to the constitutionality of the bond requirement, the debtors do not ask this Court to delve into the constitutional issue; therefore, because the constitutional issue is not raised, we do not address it. They do argue, however, that:

“We remain convinced that all Alabama courts — qua courts — have the inherent power to waive all fee and bond requirements for indigents despite the absence of any express statutory authority.”

The argument has some appeal. This Court, for instance, by Alabama Appellate Rule 24(a), has provided a scheme for allowing appeals in forma pauperis. We are not convinced, however, that since a procedure is available for one class of appellant (from circuit court to an appellate court) that a similar procedure must be provided for appellants from an inferior court to the circuit court. We note that under the new Judicial Article Implementation legislation, the bond requirement was retained for appeals from district court to circuit courts in civil cases. See Act No. 1205, Acts of Alabama 1975, Section 4-111, p. 2399.

The debtors argue that since the creditor picked the forum, the bond requirement should be waived. We cannot agree. Under Act 1178, the debtors could have effected a transfer of their cases to circuit court by requesting initially a trial by jury. Having failed to transfer the cases, and having elected to file an answer and a counterclaim in the General Sessions Court, the debtors are now governed by the provisions of law for appeal from inferior courts to circuit courts.

The judgments of the circuit court, in each case, are due to be affirmed.

AFFIRMED.

HEFLIN, C. J., and SHORES and BEAT-TY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur in the opinion because Act 1178 provides for transfer to the circuit court by requesting a trial by jury in the General Sessions Court. Act 1205 (Implementation of the Judicial Article) does not have a similar provision and, in may opinion, its validity, with respect to the appeal bond requirement, is jeopardized.


author:
PER CURIAM.
      JONES, Justice

text:
    Terry WILLIAMS v. Raymond TYLER, Administrator, etc.
    SC 1713.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Rehearing Denied Dec. 30, 1976.
    Richard W. Whittaker, Enterprise, for appellant.
    G. A. Lindsey, Elba, for appellee.
   PER CURIAM.

This is an appeal from the order of the trial court granting a motion for a new trial on the ground that an expert witness had been allowed to give inadmissible testimony through a hypothetical question addressed to him. In his order the trial judge described the evidence offered through the expert, thereafter stating:

“The court is of the considered opinion, fully realizing the consequences of the result, that it erred in allowing witness Robinson to develop facts based upon hearsay which were later assumed, and the court abused its discretion in allowing the expert testimony to be presented to the jury on the hypothetical question as phrased on the issue of speed, reaction and direction of travel after impact, impact point on the roadway and in whose lane of travel the collision occurred.”

After a careful review of the record, we are convinced that the decision of the trial judge in granting the motion for a new trial must be sustained. Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973).

We have repeatedly held that such action is sustainable if there is any ground of the motion justifying that action, regardless of whether the ruling may have been rested on an improper ground. Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So.2d 132 (1972);' Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1945). The order of the trial court is due to be, and is, affirmed.

AFFIRMED.

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

HEFLIN, C. J., and BLOODWORTH, FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting).

This appeal contests the order of the trial court granting a new trial on the ground that an expert witness (an accident reconstruction specialist) had been erroneously permitted to give certain conclusions favorable to the plaintiff based upon a hypothetical question.

The trial Court’s order granting the defendant’s motion for a new trial is based on a single ground specified in the motion. Thus, our scope of review has been considerably narrowed. In so stating, I am not overlooking the well-established rule of review that this Court will not reverse an order granting a new trial, even where the ruling is based on a specific ground and that ground is invalid, if the appellee shows error in the trial on any other ground assigned in the motion. Jefferson Iron & Metal Company v. Bethune, 263 Ala. 131, 81 So.2d 674 (1955). See also Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So.2d 132 (1972). Appellee, here, confines his support of the trial Court’s ruling to the ground assigned in the order granting the motion.

The issue here presented can be best understood by our recital of a substantial portion of the trial Court’s order:

U * * *
“The motion for new trial attacks the rulings of the court allowing Mr. Henry G. Robinson, an accident reconstruction expert, to testify over objections as to the point of impact between the vehicles involved in the collision; the speed of the vehicles at the time of collision; the reaction of the vehicles after impact; the angle of impact; and the weight of the vehicles.
“If an expert witness has no personal knowledge of the facts on which his opinion is offered, he must base his opinion on a hypothetical question. The facts assumed as true must be specified to him in a hypothetical question. The hypothetical question must not assume a fact unless a finding of' that fact is warranted by the evidence previously introduced.
“The hypothetical questions propounded by the plaintiff to the witness Robinson on direct examination assumed in some instances facts which were introduced into evidence by the use of Robinson over objections of the defendant. Thus, if the answers to the questions by Robinson were erroneous prior to the hypothetical question and the facts assumed in the hypothetical question were based upon the answers erroneously admitted, the hypothetical question assumed illegal evidence in the case.
“The evidence in the case prior to Robinson assuming the witness stand was elicited from the plaintiff and Trooper Weekley. The plaintiff, Williams, was permitted prior to an objection invoking the Alabama Deadman’s Statute to testify as to the location of the collision and weather conditions and that he and Tyler were operating the vehicles involved and he was on his side of the road and saw a car approaching him with headlights. Trooper Weekley described the accident scene and location and called it a head-on collision. He described the damage to the separate vehicles, the location of groove and gouge marks and upon his physical examination of all data, gave the point of impact under the Williams’ vehicle and in the Tyler lane of traffic. Further, it was elicited that prior to the collision, a portion of the Tyler vehicle had been off of the right edge of the traveled surface of the highway in the direction of travel.
“Robinson checked both vehicles, took pictures of the accident scene, made measurements, and examined the accident report and pictures of the accident scene made by some other person. With the use of pictures of the damaged vehicles, Robinson over objection was permitted to express his opinion as to the direction of force that caused the damage. With the use of color photographs made by Robinson, he was permitted over objection to state the position of the wrecked vehicles and groove and gouge marks. The hypothetical question in substance assumed the date, time, place, highway width and grade, direction of travel of each vehicle, weather conditions, location of each vehicle after collision with reference to groove and gouge marks, damage to the vehicles, direction of force causing the damage, weight of the vehicles, and all facts discovered upon investigation. Robinson then expressed his opinion as to speed, impact point of the vehicles, reaction and direction of travel after impact, impact point on the roadway and in whose lane of travel the collision occurred.
“The court is of the considered opinion, fully realizing the consequences of the result, that it erred in allowing witness Robinson to develop facts based upon hearsay which were later assumed, and the court abused its discretion in allowing the expert testimony to be presented to the jury on the hypothetical question as phrased on the issue of speed, reaction and direction of travel after impact, impact point on the roadway and in whose lane of travel the collision occurred.” (Emphasis added.)

It is apparent from the order granting a new trial that the trial Judge was not basing his ruling on whether the plaintiff had the legal right to use an expert witness for the purpose of proving the point of impact of the two vehicles, nor was he concerned with the competency of this particular witness to testify as an expert on the factual issue. See Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972). It is clear that the trial Court felt that the accident reconstruction expert (Robinson), by way of the hypothetical question, based his conclusions, in the form of opinion evidence, on certain hearsay testimony which the expert himself was allowed to give over defendant’s objection. This hearsay evidence is not pointed out specifically in the trial Court’s order. Counsel for the defendant has not directed us to such testimony in his brief, and my careful study of the record has failed to disclose any illegal testimony contained in the hypothetical question which would render inadmissible the expert witness’ opinion evidence.

The only direct clue disclosed by our detailed review of the record as to the “hearsay” referred to in the order granting a new trial is the reference in the order to the accident report and pictures. This is buttressed in the argument section of appel-lee’s brief where it states that the hypothetical question “directs the witness to express his opinion based upon unsworn hearsay as' regards the accident report and pictures which were supplied him by others and which he testified that he did in fact consider in the reconstruction of the accident.”

The rationale for my dissent in favor of reversal can best be stated in the context of the defendant’s (appellee’s) argument supportive of the trial Court’s order granting the motion for a new trial, which argument we now set out in full:

“In the case of Odell vs. Meyers [52 Ala.App. 558], 295 So.2d 413 (1974), in which an employment expert was allowed to testify as to the employability of plaintiff after having been given information as to the condition of plaintiff by the plaintiff and after having read a report from the doctor of plaintiff, the Court held to be error and that the unsworn hearsay both from plaintiff and the doctor was error.
“The question also violates the prohibition of the case law of this state which directs that a hypothetical question posed to an expert witness should not assume facts not in evidence, Salotti vs. Seaboard Coast Line R. Co. [293 Ala. 1], 299 So.2d 695 (1974), nor contain elements of facts not shown by the evidence.”

I have no quarrel with appellee’s analysis of Odell and Salotti; and the rule of these cases is correctly summarized in the preliminary paragraphs of the trial Court’s order. But the holdings of these cases are inappo-site to the case at bar. While the accident report itself is inadmissible (Pike Taxi Co. v. Patterson, 258 Ala. 508, 63 So.2d 599 (1952)), the facts contained therein may be independently testified to and thus made the basis of a hypothetical question. Every assumed fact from the accident report was independently proved through the testimony of the author of the report, the state trooper who investigated the accident. Consequently, the use of the accident report by the expert witness in formulating his analysis and conclusions does not render inadmissible opinion evidence elicited by the hypothetical question which assumes facts independently testified to by the investigating officer.

Likewise, I am unable to discern how any of the facts referred to come within the hearsay rule. A total of 30 photographs were admitted into evidence — 16 of the two cars involved and 14 of the accident scene— all without objection and some of which were made by the expert witness.

There is one further possible basis for the trial Court’s order granting the motion for a new trial. This is found in the concluding phrase of the next to last sentence of the sixth paragraph of the trial Court’s order set out above: “. . . and all facts discovered upon investigation.” This phrase was lifted substantially from the concluding portion of the hypothetical question: “. and based upon your investigation and whatever data you might have compiled

Whether the trial Court’s overruling of the defendant’s objection to the hypothetical question for its inclusion of this phrase was error need not be decided. Assuming error, when reviewed by the trial Court in considering the motion for a new trial, it was error without injury if it is clear that the expert witness’ testimony was based only on facts in evidence. Otherwise stated, in ruling on the defendant’s objection to the hypothetical question in the final instance (that is, at the time the question was first posed during trial), the trial Judge may well have been within his discretion to have required the plaintiff to specify, “. whatever data you might have compiled”; or he may have left this for further clarification through cross-examination. But this need not be decided; and, indeed, it becomes academic if the record reveals that the expert witness specified each of the factors considered by him in arriving at his conclusions, and that each of the assumed facts so considered by the expert witness was legal and competent evidence in the case. When the answer to a question containing objectionable matter states only cognizable facts or credible evidence, the consequence of error is rendered harmless. Barfield v. South Highlands Infirmary et al., 191 Ala. 553, 68 So. 30 (1915).

A careful review of Mr. Robinson’s entire testimony, including an in-depth cross-examination by the defendant, shows that his conclusions as to relative speed, direction of force, and point of impact of the two vehicles were based on the following facts: the width, grade, and condition of the highway; direction of travel of each vehicle before impact; location of each vehicle after impact with reference to groove and gouge marks on the highway; the weight of each vehicle; location and extent of damage to each vehicle; and the date, time, place, and weather conditions; all of which facts were in evidence and are summarized in the trial Court’s order.

Perhaps the dispositive issue can be clarified and put in perspective by briefly reviewing the trial Court’s action in permitting the state trooper to give opinion evidence as to the point of impact of the two vehicles. The investigating officer, called as plaintiff’s witness, testified to the facts found by him resulting from his investigation at the scene of the accident. On cross-examination, he was permitted to express his opinion, favorable to the defendant, as to the point of impact on the highway.

I note this in order to observe that the accident reconstruction expert used the same factual premises to formulate his conclusions as did the state trooper. Neither was an eyewitness to the accident; and, while the trooper observed certain of the facts firsthand (e. g., position of the vehicles following impact), the accident reconstruction expert stands on the same footing to express his opinion based upon the same facts hypothetically posed. These varying circumstances may well effect the relative credibility of the two witnesses, which is always a matter of consideration by the jury; but the law equates the two for purposes of admissibility.

I therefore would hold that the trial Court ruled correctly in the first instance in permitting the testimony of the expert witness and erred in granting the motion for a new trial.

HEFLIN, C. J., and BLOOD WORTH and FAULKNER, JJ., concur.

      . The appellant is the plaintiff below who obtained a $15,000 judgment for personal injuries in an automobile accident in which the defendant’s intestate was killed.

      . See also Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972).

      . For the substance of a hypothetical question virtually identical to the question posed to the expert witness in the instant case, see Maslankowski v. Beam, 288 Ala. 254, at p. 263, 259 So.2d 804.

      .For a good discussion of the scope of hypothetical questions as the basis for opinion evidence, see Lehigh Portland Cement Company v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968).


author: FAULKNER, Justice.

text:
    Mary B. OWENS v. H. C. BURTON et al.
    SC 1721.
    Supreme Court of Alabama.
    Dec. 3, 1976.

      Donald R. Harrison, Montgomery, for appellant.
    Howard & Dunn, Wetumpka, for appel-lees.
   FAULKNER, Justice.

This is an appeal from an order of the Circuit Court of Tallapoosa County, overturning a will. We dismiss the appeal.

This action arose from a will contest filed by Herman C. Burton. The jury held an alleged will of Minnie B. Spain dated January 11, 1975, void. Mary B. Owens’ motion for new trial was denied. An alleged settlement was reached, whereby all attorneys’ fees would be paid and she would not appeal the case, or contest a will dated September 12, 1972. Judgment on the agreement was entered January 6, 1976.

On February 14, Ms. Owens, having employed new counsel, filed a notice of appeal. After numerous continuances to await the decision on the appeal, the 1972 will was probated June 1 with the alleged consent of Ms. Owens’ attorney.

On June 14, Mr. Burton filed a motion to dismiss the appeal. This Court remanded to the Circuit Court with directions to hold an evidentiary hearing and make a finding of fact to be submitted to this Court. Such finding of fact was filed, and on August 17, this Court ordered Ms. Owens to show cause why this appeal should not be dismissed on Mr. Burton’s motion.

The issue is whether Ms. Owens can appeal the Circuit Court ruling when she, through her attorney of record, agreed not to appeal the case or contest the 1972 will.

Ms. Owens waived her right to appeal by consenting to the judgment of the lower court. See Sayre v. Dickerson, 278 Ala. 477, 179 So.2d 57 (1965). The judgment states, “The verdict of the jury against the will and the judgment rendered thereon is now final by agreement of the parties.” (Emphasis added.)

In order to properly put into issue the correctness of the Circuit Court judgment, Ms. Owens must first have attacked it in trial court. Prestwood v. Ivey, 275 Ala. 336, 154 So.2d 921 (1963). Ms. Owens can no longer move the Circuit Court to vacate judgment because the 30-day period allowed for such motions has expired. Rule 59(e) ARCP. Similarly, Rule 60(b) of ARCP, allowing relief from judgment for fraud, is of no value to Ms. Owens now, as the 4-month period for such motions has already expired. Because she did not, and now cannot, raise the judgment as an issue in trial court, she cannot raise it on appeal.

An agreement not to appeal the Circuit Court judgment and not to contest the prior will is not void as against public policy. The agreement was in writing, signed by the attorney of record of Ms. Owens, and was given in exchange for an agreement that the attorneys’ fees would be paid out of the estate.

By the great weight of authority, a party by express agreement may waive her right to appeal and such agreement will be enforced by dismissal. 4 C.J.S. Appeal and Error § 210 (1957).

Agreements not to contest a will are also not void as against public policy but are favored. 80 Am.Jur.2d Wills § 1104 (1975). An action contesting a will brought 6 months after an agreement and settlement is due to be dismissed in the absence of timely repudiation of the agreement or good excuse shown for the delay. Edison v. Russell, 255 Ala. 358, 51 So.2d 248 (1951). By agreeing to probate the 1972 will, Ms. Owens waived her right to appeal the judgment of the Circuit Court against the 1975 will. (Title 61, § 64 of the Code of Alabama [1958] does not apply here as Ms. Owens not only agreed not to contest the prior will, but she also consented to the probate of the will.)

Because Ms. Owens waived her right to appeal, we need not and do not reach the issue of whether appeals in will contests are governed by Title 61, § 63 of the Code of Alabama (1958) or by Rule 4(a) of the Alabama Rules of Appellate Procedure.

Mr. Burton is not barred by laches from moving to dismiss the appeal. Ms. Owens has failed to show such a substantial change of circumstances or such a passage of time as to make laches applicable. See Wise v. Helms, 252 Ala. 227, 40 So.2d 700 (1949).

THIS APPEAL IS DISMISSED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    Dennis PUTMAN v. Joseph G. VATH, Individually, and as Bishop of the Catholic Diocese of Birmingham in Alabama.
    SC 1840.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Edward Still, Birmingham, for appellant.
    W. H. Sadler, Jr., and W. J. Sullivan, III, Birmingham, for appellee.
   SHORES, Justice.

Dennis Putman is a Catholic priest and Joseph G. Vath is the Bishop of the Catholic Diocese of Birmingham. Putman was in-cardinated in the Diocese of Birmingham and was serving at the direction of the Bishop as Campus Minister at the University of Alabama in Birmingham on December 7, 1973, when Bishop Vath assigned him to serve as Notary of the Tribunal of the Diocese and as Assistant at the Church of Our Lady of Sorrows. On December 11, 1973, Putman replied to the Bishop saying that he would consider the assignment and whether to accept it by January 16, 1974. The Bishop again, on December 13, repeated his notice that Putman was to assume the new assignment on December 15. Putman did not assume the new assignments; and on December 19, Bishop Vath informed him that he was suspended from all exercises of his priestly ministry and all of his faculties were revoked. He also directed the priest to vacate the Diocesan Rectory where he had been living. Putman refused to do so.

Thereafter, on February 5, 1974, Bishop Vath and Putman executed a document whereby Putman would vacate immediately the Diocesan Rectory where he had been living at the pleasure of the Bishop, and the Bishop would . . arrange for the proper canonical tribunal to be established in the Diocese of Mobile or in such other diocese as will be willing and able to ac-com[m]odate, in an equitable manner, such proceeding as may be filed by Father Put-man. . . . ”

Immediately thereafter, Bishop Vath contacted Archbishop Donnellan of the Diocese of Atlanta requesting permission to institute a tribunal in Atlanta to hear Putman’s grievance on the assignment which his Bishop had given him. Archbishop Donnel-lan replied that he would be pleased to institute a tribunal, but that it would be necessary for him to have a delegation from the proper authority to do so. Bishop Vath, in response to Archbishop Donnellan’s request, wrote Archbishop Jadot, the Apostolic Delegate in Washington, D. C., seeking permission to delegate Archbishop Donnel-lan to institute a tribunal to hear Putman’s grievances. In March, 1974, the Apostolic Delegate advised Bishop Vath that his request would have to be forwarded to the Vatican for a ruling and that that was being done. In May, the Apostolic Delegate informed Bishop Vath that the Vatican had determined that the Putman matter was an administrative, and not a judicial, one; and, therefore, under the Canonical Law of the Roman Catholic Church, no tribunal could be established. This information was passed on to Father Putman by the Bishop, who informed him that he had a right of appeal, afforded by the Canonical Law of the Chuph.

Father Putman exercised that right of appeal and submitted his grievance to Cardinal John Wright, Prefect for the Sacred Congregation for the Clergy, in Rome. Subsequently, Cardinal Wright reported to Father Putman the decision of the Sacred Congregation, which was in part:

“. . . It seems evident that Fr. Putman is in no way willing to obey and to cooperate reasonably with the specific desires of his Bishop, who is responsible for the direction and guidance of the Church in Birmingham, Alabama. It is because the evidence points to a real unwillingness on the part of Fr. Putman to accept the reasonably expressed authority of the Church that his appeal for reinstatement as Campus Minister and against suspension cannot be upheld.
“Therefore, Fr. Putman should be offered the following alternatives: 1) accept the new appointment offered by the Bishop and the conditions attached to them. Or 2) while being relieved of diocesan duties, be given every assistance in reviewing his priestly life in accordance with the mind of the Church today.”

Bishop Vath thereafter wrote to Putman inviting his response to the alternatives offered by the Sacred Congregation to which he had presented his appeal. Putman declined to accept either alternative and thereafter filed this lawsuit, which sought $10,000 in damages and asked for a declaratory judgment that Bishop Vath not deprive him of a benefice, office or salary sufficient for his proper support, and not suspend him from his priestly duties “. unless and until the Defendant shall have convened a canonical tribunal in the Diocese of Mobile to hear the complaint of Plaintiff.”

Bishop Vath challenged the court’s jurisdiction to entertain the lawsuit, contending that the entire matter was one governed by Canon law and not by the civil courts. He also moved for summary judgment, supported by affidavits and documents which reflect the matters set out above. Father Putman countered with an affidavit by a former Catholic priest, who stated that it was his opinion that Bishop Vath’s actions against Father Putman did not meet the requirements of natural equity, “. because it failed to implement three basic ingredients of due process — (a) Putman had no opportunity to appear with counsel before any Vatican official, (b) Putman had no opportunity to present evidence to any Vatican Official orally, (c) There was no opportunity of confrontation or cross-examination of adverse witnesses.”

The trial court granted the Bishop’s motion for summary judgment and Father Putman appealed.

The facts in this matter leave no question in our minds that the dispute between Father Putman and Bishop Vath is an ecclesiastical one. Such disputes cannot be resolved in the courts of this state. Harris v. Cosby, 173 Ala. 81, 55 So. 231 (1911); Mt Olive Primitive Baptist Church v. Patrick, 252 Ala. 672, 42 So.2d 617 (1949).

The latter case involved a factional dispute within the church which resulted in two members being ousted from membership without notice. One of them was deposed from any official connection in the church and filed suit seeking reinstatement to the church office he had held. This court held that the civil courts would not intervene in the dispute, noting:

“We think the court would be treading on most dangerous ground and invading a sanctuary not set apart for its jurisdiction if it should permit dissident minorities, believing themselves to have been improperly excluded because of the procedure by which they were exscinded, to invoke its power to determine such a factional dispute. . . . ” 252 Ala. at 674, 42 So.2d at 619.

Likewise, in Hundley v. Collins, 131 Ala. 234, 32 So. 575 (1901), this court affirmed the trial court in its refusal to entertain a suit whereby the plaintiff sought reinstatement to the Christian Church of Huntsville, from which the General Assembly of the church had suspended him without notice and a hearing. There, the court said:

“. . . Admitting . . . that petitioner had no notice of this proceeding, and that it was irregular according to common usage, the church being independent, and not subject to higher powers, and being a law unto itself for its own procedure in religious matters, what it did towards the expulsion of petitioner was not unlawful, even if it was not politic and wise. If the civil courts may in this instance interfere to question the exclusion of petitioner, they may do so, in any instance where a member of that or any other church is removed, on the allegation of irregular and unfair proceedings for the purpose. This would open a door to untold evils in the administration of church affairs, not consistent with the principles of religious freedom as recognized in this country, where there is no established church or religion, where every man is entitled to hold and express with freedom his own religious views and convictions, and where the separation of State and Church is so deeply entrenched in our constitutions and laws.” 131 Ala. at 243, 32 So. at 578.

These expressions are consistent with the position which this court has historically taken in such matters. That position is restated in Odoms v. Woodall, 246 Ala. 427, 429, 20 So.2d 849, 851 (1945):

“The civil courts will not take jurisdiction of a controversy arising out of the removal of a minister if the right to the position is merely spiritual or ecclesiastical. But if he has a civil or property right in his position, the civil courts will protect that right. But if there is such right in the minister, which will give the courts jurisdiction, it is well settled that his removal by the appropriate church tribunal is conclusive upon the courts, if there is no violation of contractual right.

The Supreme Court of the United States has likewise avoided adjudication of religious controversies. This attitude was initially verbalized in Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871). Attempting to define the proper scope of review of decisions made by religious tribunals, the court held:

“. . .we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” 80 U.S. at 727, 20 L.Ed. 666.

On occasion, the United States Supreme Court has averted to the possibility of “marginal civil court review” as an exception to the Watson rule. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). In Gonzalez v. Archbishop, 280 U.S. 1, 16, 50 S.Ct. 5, 7, 74 L.Ed. 131 (1929), the majority concluded:

“. . . Because the appointment [to the chaplaincy] is a canonical act it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. . . ”

However, the most recent decision of that court, Serbian Eastern Orthodox Diocese, etc. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), criticized the concept of “marginal review” as mere dictum and concluded that that concept has never developed into a concrete exception to the Watson rule, saying:

“Thus, although Watson had left civil courts no role to play in reviewing ecclesiastical decisions during the course of resolving church property disputes, Gonzalez first adverted to the possibility of ‘marginal civil court review,’ Presbyterian Church v. Hull Church, supra, 393 U.S. at 447, 89 S.Ct. at 605, in cases challenging decisions of ecclesiastical tribunals as products of ‘fraud, collusion, or arbitrariness.’ However, since there was ‘not even a suggestion that [the Archbishop] exercised his authority [in making the chaplaincy decision] arbitrarily,’ 280 U.S. at 18, 50 S.Ct. at 8, the suggested ‘fraud, collusion, or arbitrariness’ exception to the Watson rule was dictum only. And although references to the suggested exceptions appear in opinions in cases decided since the Watson rule has been held to be mandated by the First Amendment, no decision of this Court has given concrete content to or applied the ‘exception.’ ...” 96 S.Ct. at 2381, 2382.

This statement was directed to a decision of the Supreme Court of Illinois which had relied on Gonzalez to reject a decision of a religious tribunal as arbitrary. In reversing the court said:

“The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes. Consistently with the First and Fourteenth Amendments ‘[e]ivil courts do not inquire whether the relevant [hierarchical] church governing body has power under religious law . [to decide such disputes]. . . . Such a determination . . . frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church so as to decide . religious law . . . [governing church polity] . . would violate the First Amendment in much the same manner as civil determination of religious doctrine.’ Md. and Va. Churches v. Sharpsburg Church, 396 U.S. 367, 369, 90 S.Ct. 499, 500, 24 L.Ed.2d 582 (1970) (concurring opinion). For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Ibid.” 96 S.Ct. at 2380.
“The conclusion of the Illinois Supreme Court that the decisions of the Mother Church were ‘arbitrary’ was grounded upon an inquiry that persuaded the Illinois Supreme Court that the Mother Church had not followed its own laws and procedures in arriving at those decisions. We have concluded that whether or not there is room for ‘marginal civil court review’ under the narrow rubrics of ‘fraud’ or ‘collusion’ when church tribunals act in bad faith for secular purposes, no ‘arbitrariness’ exception — in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations — is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense ‘arbitrary’ must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly require the church adjudicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. Watson itself requires our conclusion in its rejection of the analogous argument that ecclesiastical decisions of the highest church judicatories need only be accepted if the subject matter of the dispute is within their ‘jurisdiction.’ ” 96 S.Ct. at 2382.

Commenting on the ecclesiastical proceedings, the majority held:

“Indeed, it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.” 96 S.Ct. at 2383

In an explanatory note, the court gave reason for the conclusion:

“Civil judges obviously do not have the competence of ecclesiastical tribunals in applying the ‘law’ that governs ecclesiastical disputes, Watson cogently remarked
“ ‘Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. . . . It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, *to one which is less so.’ ” 96 S.Ct. at 2383.

This case is not materially different from Milivojevich, except that Father Putman’s position is somewhat weaker than was Mili-vojevich’s. We conclude that the trial court properly granted the motion for summary judgment.

AFFIRMED.

MADDOX, FAULKNER and BEATTY, JJ., and CATES, Presiding Judge of the Court of Criminal Appeals, sitting by designation of the Chief Justice, concur.


text:
    I. H. M., Inc., a corporation v. CENTRAL BANK OF MONTGOMERY, a Banking Corporation, et al.
    SC 1845.
    Supreme Court of Alabama.
    Dec. 3, 1976.

      Tucker, Gray & Thigpen, Tuscaloosa, for appellant.
    Crenshaw & Minor, Montgomery, for Central Bank of Montgomery, appellees.
   SHORES, Justice.

In 1973 I.H.M., Inc. owned the Sheraton Motor Inn in Montgomery. During that year William F. Burton, Jr. purchased the property. As a part of that transaction Burton assumed the existing mortgage on the property, executed a promissory note secured by a second mortgage, and also executed with I.H.M. a re-entry agreement whereby I.H.M. could re-enter possession of the premises if Burton defaulted in the payment of the first mortgage.

Thereafter, Burton executed to I.H.M. a collateral note for $100,000, due July, 1975. As collateral for that note, he put up a letter of credit for $100,000.

Burton took possession of the Sheraton and began its operation. To obtain operating monies, Burton and James P. Gillum, doing business as Montgomery Properties (also doing business as Sheraton Motor Inn), applied to Central Bank of Montgomery for a $15,000 loan, executed a demand note in that amount, and subsequently drew approximately $13,000 from the bank. They were indebted to the bank for $11,000 in February, 1975.

Also, in February, 1975, I.H.M. and Burton agreed that I.H.M. would be allowed to re-enter the premises on February 19, 1975, would be allowed to draw on the $100,000 letter of credit in consideration for which, as contended by Burton, I.H.M. would assume all of the debts of the Sheraton Motor Inn, including the indebtedness owed to Central Bank.

When Central Bank called the note, I.H.M. refused to pay, and the bank thereupon brought suit on the note against Burton, Gillum and I.H.M.

Burton filed a cross claim against I.H.M., contending that if he was liable to Central Bank, then I.H.M. was liable to him, under its agreement to assume all of the liabilities of Sheraton Motor Inn.

The case was tried without a jury, at the conclusion of which the trial court entered judgment in favor of Central Bank against all defendants, and judgment in favor of Burton against I.H.M. I.H.M. appealed.

I.H.M. contends that its agreement to pay the debt to Central Bank was an agreement to pay the debt of another; and, because it was not in writing, it is void under the statute of frauds. The trial court found that the agreement of I.H.M. to assume and agree to pay the debt was based upon good and valuable consideration and that, therefore, the statute of frauds did not apply to the transaction.

There is abundant evidence that a valuable consideration passed to I.H.M. in exchange for its promise to assume the Central Bank debt. The bank officer who handled the transaction testified that the bank did not call the note because I.H.M. came to the bank and said that it had assumed the assets and liabilities of Montgomery Properties. But aside from that, it was not disputed that Burton permitted I.H.M. to re-enter the premises on February 19, 1975, and to draw on the bank letter of credit, which was being used to secure a note to I.H.M. which was not yet due. It was Burton’s testimony that he allowed I.H.M. to draw on the bank letter of credit, which it had no present right to do, in exchange for its agreement to pay all of the debts of the Sheraton Motor Inn. He also testified that I.H.M. had in fact paid several thousand dollars of Sheraton’s debts, but had not paid the Central Bank debt. I.H.M. did not dispute this testimony, nor did it deny that the assets of the Sheraton, plus the $100,000 were sufficient to pay all of the indebtedness of Sheraton, including the note due Central Bank. In addition to the assertions purportedly made to the bank to pay the debt, it was uncontroverted that I.H.M. promised Burton that it would assume that liability. It received consideration for that promise. For this reason alone, the promise is not one to answer for the debt of another, and is not, therefore, within the statute of frauds. At § 186, 72 Am.Jur.2d, Statute of Frauds, the following appears:

“Person to whom promise is made.
“If the promise to assume the obligation of the debtor is made to a person other than the one presently entitled to enforce the liability so assumed by the promisor, such promise is not one to answer for the debt of another within the meaning of the statute of frauds. Stated positively, the statute is generally held to apply only to oral promises made to a person to whom another is answerable. a promise made to a debtor whereby the promisor undertakes for an adequate consideration to discharge the debt is not within such provision of the statute.”

The expression is consistent with Alabama cases on the subject. See: Martin v. Black’s Executors, 21 Ala. 721 (1852); Mason v. Hall, 30 Ala. 599 (1857); Moore v. First National Bank of Florence, 139 Ala. 595, 36 So. 777 (1903); Byrd v. Hickman, 167 Ala. 351, 52 So. 426 (1910); Waters v. Blackmon, 228 Ala. 462, 153 So. 739 (1934); and Locke v. Kay, 257 Ala. 376, 59 So.2d 70 (1952).

Although I.H.M. urges reversal of the trial court on its finding that the agreement was not void under the statute of frauds, I.H.M. also claims error in that the trial court permitted Burton to testify to an oral agreement outside the scope of a written agreement between Burton and I.H.M., which I.H.M. contends is the complete agreement between the parties. It would appear that this memorandum in writing, signed by the parties, is a sufficient compliance with the statute of frauds if it applies at all.

The testimony was that after the parties had held a conference at which they agreed that I.H.M. would take over the Sheraton operations, pay the existing debts, and Burton agreed to permit the $100,000 letter of credit to be drawn on by I.H.M., Burton, in longhand, while waiting for an airplane to be serviced, wrote out the following memorandum of agreement, which was signed by all parties:

“It is agreed by and between the undersigned that in and for the consideration of I.H.M., Inc. being allowed to call a $100,000.00 letter of credit from Third National Bank in Nashville and to re-enter the property known as the Sheraton Motor Inn at Montgomery, Alabama, that the said I.H.M., Inc. and William Brennan, individually will hold William F. Burton, Jr. harmless from all operating expenses of any kind and nature, plus all fixed expenses of any kind and nature incurred after the date of re-entry which is 12:00 p.m. on February 20,1975, except the mortgage and land lease of Gulf Life in the event the secured indebtedness is accel(l)erated.
“The 2nd mortgage note of Burton owed to I.H.M., Inc. and Thomas Hartzog shall not be accel(7 )erated or draw interest for six months from date hereof or until the mortgage to Gulf Life is in default and the said Gulf Life accel(7 )er-ates the indebtedness secured by the mortgage or unless and until the said Burton commits and (sic) act of public debt relief, in which event Burton does not waive or release any defenses or actions that he might have against any party.
“Dated and executed this 20th day of February, 1975. All of the above and the distribution of the proceeds of a contemplated sale of the property shall be contained in formal document being prepared by Thomas Lail, Atty.
“International Hotel Management, Inc.
by /s/ William Brennan “/s/ William Brennan, individually “/s/ William F. Burton. Jr.
William F. Burton, Jr.”

I.H.M. contends that by this agreement I.H.M. agreed to hold Burton harmless from all expenses operating or fixed, incurred after the date of re-entry, but not before. It argues that parol evidence was inadmissible under the rule which prohibits oral testimony to explain, contradict, or vary the terms of a written contract. We do not agree that that rule has any application here. It is clear from the document itself that it was intended only as a memorandum of agreement, and that the parties agreed that a formal document would be drawn to include all of the terms of their agreement. It is also clear that the memorandum agreement is subject to two interpretations. In addition to the interpretation of I.H.M., it can also be read to mean that I.H.M. agreed to hold Burton harmless from all fixed expenses incurred after the date of re-entry, but agrees to hold him harmless from all operating expenses, whenever they occurred.

Under these circumstances, it is perfectly permissible for the court to look to precon-tract negotiations and the conduct of the parties to determine what was meant by their agreement. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). In addition, there was no error in allowing parol evidence where there is no doubt that the written instrument was not intended to reflect the full agreement between the parties. In Alabama Power Co. v. Pierre, 236 Ala. 521, 526, 183 So. 665, 669 (1938), this court said:

“. . . there is room for argument that the writing was ambiguous and subject to parol explanation. .
“But that question aside and undetermined, we think the parol agreement admissible upon the theory that it clearly appears the parties never intended that the written conditional sale contract should express their full agreement.
“As said by Mr. Williston in his work on Contracts, volume 3, section 633: ‘The parol evidence rule does not apply to every contract of which there is written evidence, but only applies when the parties to an agreement reduce it to writing, and agree or intend that the writing shall be their agreement.’ ”

We find no error in the record and, therefore, affirm the judgment of the trial court.

AFFIRMED.

HEFLIN, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: HOLMES, Judge.

text:
    Mae Nell SMITH v. STATE of Alabama DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 884.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1976.

      Theodore L. Hall, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Mary Lee Stapp, and Jamie L. Pettigrew, Asst. Attys. Gen., for the State, appellee.
   HOLMES, Judge.

This is a case involving custody of children. The Circuit Court of Mobile County found two children, ages 5 and 3, to be dependent children within the meaning of Chapter 7 of Tit. 13 of the Code of Alabama 1940. The trial court awarded permanent custody and the legal guardianship of the children to the Department of Pensions and Security. Additionally, in the trial court’s order, it was stated that the rights of the natural parents, as they relate to the children, were permanently terminated.

From this decree the natural mother appeals and presents four issues: (1) Does the evidence support the trial court’s action in awarding custody of the children to the Department of Pensions and Security? (2) Does a circuit court have, in a proceeding involving neglected or dependent children, the power to terminate parental custody rights? (3) Are Alabama statutes as they relate to dependent and neglected children and, as applied in this instance, unconstitutional? (4) Did the trial court err to reversal in refusing to allow certain testimony to be received in evidence?

The issues and facts as they are applicable to such issues will be discussed in the order as set out hereinabove.

I

Viewing the testimony with the attendant presumptions, we find the following:

The children involved were at the time of the trial below ages 5 and 3. Each had a different father to whom the mother was never married. The mother has a third child, age 5 months, who is not involved in this appeal. We note that the mother has never been married to this child’s father either.

Since 1974, approximately two years prior to the hearing in question, the Mobile County Department of Pensions and Security had been working with the mother in an attempt to bring about a stable home for the children. Some time prior to January of 1975, the children were taken by the court from the mother. However, in January of 1975, the children were returned to the mother. At the time of the return of the children to the mother, the court apparently informed the mother that she was to establish a stable home and to keep in contact with the Department of Pensions and Security.

During the period from January of 1975 to July 1975, the mother lived in four different places. Sometimes the mother stayed with the children and sometimes the children were with friends or relatives of the mother. Additionally, during this period, the mother had various jobs, including baby-sitter, domestic, and waitress in a “Club.” It was during the time she was employed as a waitress that she became pregnant with the third child.

There is further testimony that in addition to the four places of residence mentioned above, approximately two weeks pri- or to the hearing, the mother had moved into a fifth residence. This residence was rent-free, without lease, and had no utilities.

In addition to the above, the mother testified that in June 1976, she would be unemployed.

There was testimony by employees of the Department that they (the Department) had great difficulty keeping “track” of the mother and that she did not cooperate with them.

Initially, we note the oft stated rule that decrees of the trial court in child custody cases, rendered after hearing witnesses ore tenus, will be given every favorable presumption and will not be disturbed unless palpably wrong. Ayers v. Kelly, 284 Ala. 321, 224 So.2d 673; Lawson v. Jennings, 52 Ala.App. 582, 296 So.2d 176; 12 Ala.Digest Infants <s=> 19.3(7).

The controlling consideration in child custody matters is the best interest of the child. See 12 Ala.Digest Infants &wkey;19.-2(2) and cases cited thereunder. It thus follows that while the parent has a prima facie right to the custody of a child, this right is not absolute and must yield to the superior criterion of the child’s welfare.

Viewing the evidence as set out hereinabove and with the above principles in mind, this court can hardly find that the trial court was palpably wrong in finding that the best interest of the children was served by their permanent custody being placed with the Department of Pensions and Security. "

For cases where, to this court, even less evidence than is presented here has been held sufficient to sustain a decree of the trial court awarding custody of a minor to the Department of Pensions and Security, see Long v. O’Mary, 270 Ala. 99, 116 So.2d 563; Harrell v. Long, 49 Ala.App. 322, 272 So.2d 248.

II

Able counsel for the mother, through an excellent brief, contends that Chapter 7 of Tit. 13 and Tit. 13, § 351, Code of Alabama 1940, do not permit the trial court to terminate permanent custody rights.

Chapter 7 of Tit. 13 provides in pertinent part as follows:

“The juvenile court shall have the power [as regards a dependent, neglected or juvenile child under its jurisdiction] . to make and enter such judgment and orders for his custody, discipline, supervision, care, protection and guardianship, as, in the judgment of the court will properly conserve and protect the welfare and best interests of such child.”

Title 13, § 361, Code of Alabama, provides in pertinent part as follows:

“The court may commit to the state department of public welfare by either temporary or final order such children as the state department of public welfare is equipped to care for and agrees to receive. . . . The court may make such other order or judgment as the court, in its discretion, shall deem to be for the best interests of the child.”

To this court, the mother’s position regarding this issue is best stated in her brief and is as follows:

“The statutory authority to award permanent custody is not tantamount to cutting off custody rights, because even if permanent custody is awarded, the court has continuing jurisdiction to redetermine the issue of custody upon a showing of changed circumstances. .
“An order terminating a parent’s custody rights is an order which, in effect, cuts off the trial court’s jurisdiction to redetermine the question of custody insofar as it involved the parent’s right to regain custody. Thus, the court’s authority to grant permanent custody does not include the authority to terminate custody rights of any party.”

The court does not agree with appellant. To us, the language of the appropriate statutes is clear that the natural parent’s right to custody may, in effect, be permanently terminated.

A fundamental rule of statutory construction is to ascertain and effectuate the intent of the legislature as expressed in the statute. State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583.

Here, it is clear that the legislature intended that if the best interest of the child required that the child be placed with the Department of Pensions and Security, then the court could make such orders as necessary to effectuate that placement including terminating parental custody rights.

The effect of the Alabama eases clearly shows that the above was intended. In Gandy v. State, 250 Ala. 543, 35 So.2d 161, the Jefferson County Juvenile and Domestic Relations Court, pursuant to Tit. 62, § 317, Code of Alabama, awarded custody of three minor children to the State Department of Public Welfare for permanent placement in a foster home. Tit. 62, § 317, is applicable only to Jefferson County, whereas Tit. 13, § 351 et seq., has statewide application. However, for our purposes herein, that is the only significant difference between the two statutes. The mother of the children argued that the court was without authority to effect the permanent placement in a foster home. Thus, her argument was analogous to that of Miss Smith herein. In essence, the mother challenged the court’s authority to permanently terminate her rights to custody of her children. The Supreme Court of Alabama stated:

“That the Juvenile and Domestic Relations Court of Jefferson County and the Circuit Court, in Equity, on appeal, has such authority is beyond question.” (Gandy, supra, 250 Ala. at 544, 35 So.2d at 162).

Accord, Anonymous v. State, 272 Ala. 172, 129 So.2d 684. See also Harrell v. Long, supra.

It is true that the language of the statute does not expressly state that the court may “permanently terminate” the custody rights of the parents, but any other reading of the statute would indeed be strained. How, one asks, could a child ever be permanently placed by the Department if the custody rights of the natural parents could not be lawfully terminated? The natural reading of the statute, bolstered by the holding of Gandy, supra, convinces us that the legislature intended that the courts have the power to take that action which Miss Smith herein contests.

Ill

The mother next contends that the above quoted statutes are unconstitutional, apparently because they violate the Due Process Clause of the 14th Amendment. Counsel argues that Wambles v. Conn (M.D.Ala.1976) 417 F.Supp. 769, is supportive of his position.

We have carefully perused the record in this case. This constitutional question is raised for the first time on this appeal.

It has long been the law in this state that constitutional questions not raised in the court below will not be considered for the first time on appeal. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254; 2 Ala.Digest Appeal and Error &wkey; 170(2). Appellant’s contention thus cannot be treated by this court.

However, we note that to this court Wambles, supra, addressed itself only to “neglected” children and does not touch upon what we have in this instance, to wit, “dependent” children. Moreover, even if Wambles is construed to apply to dependent children, this court is not bound by the decision rendered therein. Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607; 5 Ala.Digest Courts &wkey;97(1).

IV

Miss Smith next argues that the sustaining of objections to the following questions, posed to Mrs. Windle of the Department of Pensions and Security, was reversible error:

“A The Department of Pensions and Security has accepted permanent custody of the children and they will make a home for them.
“Q Has the State Department told you what those, plans will be?
“[W]hat is the usual practice in a case such as this as regards to disposition of the children, the ones who are given to the Department of Pensions and Security? ■
“What are the chances of finding a permanent place for a three and a half year old female black child and a five year old black child, male black child?”

Miss Smith properly states that the best interest of the children is the controlling criterion in determining to whom custody of the children will be awarded. She maintains that the trial court, by limiting her inquiry into the state’s general plans for her children, could not properly make a decision concerning this matter. Put another way, she contends that the court, in sustaining the state’s objections to the questions posed by her counsel on cross examination, precluded a showing that the best interests of the children would be served by remaining in her custody.

In Moon v. Nolen, 294 Ala. 454, 459, 318 So.2d 690, 694, the Alabama Supreme Court said:

“The scope and extent of cross-examination is a matter reserved for the sound discretion of the trial court. The exercise of discretion in the limitation of cross-examination is not reviewable in the absence of gross abuse. . . . Moreover, prejudicial error must be shown. .” [Emphasis supplied]

In this instance, due to the general nature of the questions, we cannot say the trial court erred to reversal in sustaining the state’s objections. We note that Miss Smith cites no cases wherein similar action by the trial court was deemed to be reversible error. See also ARCP 61.

We should not be understood as holding that the trial court can never commit reversible error in failing to allow cross examination of a general nature concerning the present status of children under circumstances similar to those herein, to wit, a Tit. 13, Chapter 7, proceeding. Rather, we limit our holding to the facts of this particular case. Denial of the right to receive answers to the posed questions does not, in this instance, warrant reversal.

All issues having been duly considered, the case is due to be and is ordered affirmed.

AFFIRMED.

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


text:
    Lynn L. METCALF v. Thomas E. METCALF, Jr.
    Civ. 921.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1976.

      McDermott & Deas, Mobile, for appellant.
    Claude D. Boone and A. J. Seale, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case. The only issue is whether the amount of child support awarded by the trial court is so inadequate as to require reversal. We find that it is and reverse and remand.

The parties were married in January of 1974 and separated in November of 1975. One child was born of the marriage. The child, at the time of the divorce, was approximately one and one-half years old. The husband at the time of the divorce, was twenty-one years old and the wife was nineteen. The husband’s father owns a nursery and the husband is employed by the father. The husband earns $225 every two weeks. During the marriage, the wife was in large means unemployed. At the time of the divorce, the wife had obtained employment and was to earn approximately $100 per week.

While the parties were married, they lived rent free in a house owned by the husband’s father. The husband testified that he now lives in the same house but must now pay his father rent of $100 per month, but the utilities are paid by his father. Additionally, the husband testified that he owned dogs and horses which were for pleasure. Apparently, the husband spent approximately $55 per month on his livestock. However, he testified that while he had not yet derived any income from the horses, he was planning to do so.

Each party testified concerning their expenditures and needs. The wife testified she was in need of $40 per week as child support. The husband, who had been previously ordered to pay temporary support of $20 per week, testified, “I have been doing good to pay the $20.”

With the above in mind, the learned trial judge in pertinent part ordered the husband to pay $15 per week as child support. In addition, for the child, the husband was required to provide hospital and medical insurance. This insurance was a group policy apparently through his employment. No alimony was awarded to the wife.

This court recognizes the general rule that where the evidence is heard ore tenus by the trial court, its findings are presumed to be correct and will not be overturned unless plainly and palpably wrong and unjust. Baggette v. Baggette, 279 Ala. 167, 182 So.2d 898.

The amount of child support to be granted depends upon the needs of the child or children and the ability of the parent to pay. The award lies within the sound discretion of the court. Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911.

After reviewing the evidence, we must conclude that in this instance the able trial judge abused his discretion in awarding only $15 per week for child support.

The evidence is clear that the husband earns $450 or more per month; that he only has himself to support; that he has stable employment; that his housing expenses are minor; that he is able to spend, what some might term, a considerable sum on, in large measure, pleasure animals; that no alimony, periodic or otherwise, was awarded the wife; that the husband is not required to pay routine medical expenses. In addition, it is clear that the husband was in fact able to pay the previously awarded temporary support of $20. See Townsend v. Townsend, Ala.Civ.App., 337 So.2d 4.

The above clearly indicates to this court that the husband has the ability to pay more than the ordered $15 per week.

Suffice it to say that the need of the child or any child in 1976 is greater than $15 per week. In any event, the mother testified to a need of $40 per week. Needless to say, ability to pay and need must always be balanced.

We therefore find that the learned trial judge’s apparent disregard of the husband’s ability to pay and the need of the child was the sort of arbitrary action which goes beyond judicial discretion. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150, cert. denied 291 Ala. 782, 280 So.2d 155.

We hold, therefore, that in this instance the trial court erred to reversal when it failed to grant a reasonable sum for child support. Hence, the trial court’s judgment as to the amount of child support awarded is reversed and the cause remanded for entry of a judgment awarding $25 per week as child support.

The attorney for the wife has requested that this court award him a fee for representing the wife on this appeal. A fee of $200 is hereby awarded.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: WRIGHT, Presiding Judge.

text:
    David W. BURNETT v. The STATE of Alabama ex rel. William H. ATKINSON, District Attorney, 25th Judicial Circuit of Alabama.
    Civ. 946.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1976.

      Bill Fite, Hamilton, for appellant.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of condemnation and forfeiture of a motor vehicle used for transporting illegal liquor under Title 29, Section 247, Code of Alabama (1940). We affirm.

In the dark of early morning on April 1, 1976, a two-ton truck belonging to appellant, David Burnett, was stopped by police officers on a public highway in Hamilton, Marion County, Alabama. The truck was subsequently searched and found to be loaded with from 600 to 1,000 cases of beer. Marion County is a dry county. The occupants of the truck were subsequently charged with violating the prohibition law. The beer was sold to licensed beer distributors in a wet county. Condemnation proceedings were filed against the truck. After hearing testimony orally, the court declared the truck forfeited and ordered it sold according to statute. The owner of the truck appeals.

Appellant’s first issue is that the State should not prevail because of the clean hands doctrine. The argument of appellant on this issue is unsupported by any pleading or defense filed in the case. It is unsupported by any precedential case citations. The gist of the argument appears to be that there were 1,000 cases of beer in the truck at the time of its seizure. However, the evidence of the State claimed only a seizure of 624 cases. Since someone stole or disposed of 376 cases, the State should' not be permitted to condemn appellant’s truck.

We cannot accept appellant’s argument. We are unable to perceive how appellant can complain that the State should not be permitted to condemn a truck because it claims the transporting of 624 cases of illegal liquor instead of 1,000 cases. It would appear that a transporter of illegal liquor has little standing to invoke the clean hands doctrine.

Appellant contends that the evidence did not sustain condemnation because no witness ever opened, tasted or smelled any of the containers. The evidence was that there were at least 624 cases of unopened metal cans labeled with the name of various beers. The cases were carried to licensed wholesalers of beer and there sold as beer for a valuable consideration. We do not consider it necessary that anyone taste, smell or otherwise sample the contents of those cans in order to establish that they in fact contained beer. Kilpatrick v. State, 38 Ala.App. 256, 81 So.2d 926 (1955).

The remaining issue is whether the search of the truck and seizure of its contents were illegal under the Fourth Amendment to the Constitution of the United States.

The most recent cases decided by the Supreme Court of Alabama relating to Fourth Amendment requirements for lawful search of automobiles stopped upon streets and highways and taken into custody of law officers are In re Bassett v. State, 290 Ala. 259, 275 So.2d 720, cert. denied 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86, and Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1974). These decisions, and particularly that of Daniels, discussed the most recent decisions of the Supreme Court of the United States involving warrantless searches of automobiles. We perceive no benefit in our restating or discussing in • any length the principles of those cases. We think it sufficient to say that we believe that the holding of the U.S. Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) is enough support of the action of the trial court in permitting introduction of evidence obtained through the search of the vehicle in the case. The decision in Chambers was recently expanded by the decision in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

The question to be answered in any case of a warrantless search, either of a house or an automobile, is: was the search reasonable under the circumstances? Reasonableness is dependent upon the presence of the ingredients necessary to the magic status of “probable cause.” The determination of reasonableness differs depending upon whether the place or object to be searched is a house or a motor vehicle. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); South Dakota v. Opperman,_U.S._, 96 S.Ct. 3092 at 3095, 49 L.Ed.2d 1000 (1976).

The testimony in this case relating to the stopping and seizing of the truck was as follows: Some two days prior to the seizure, an informant told one of the seizing officers that a truck loaded with illegal alcoholic beverages would be entering the area along a particular route; the truck would be of a particular color; it would come in the dark on the night of April 1; the informant had previously given information concerning drugs which had resulted in indictment; a truck of the color and general description given did appear on the proper route at the proper time; it was observed and followed by the officers; it appeared to be heavily loaded and was seen to cross over the center line of the highway; the truck was halted by the officers on the side of the highway; the occupants delayed when asked for driver’s license and identification; upon inquiry as to contents of their load and its destination, the occupants stated they were hauling feed to some unknown person, at an unknown ranch of unknown location; they stated they did not have the key to unlock the rear door of the enclosed van.

The occupants were taken from the truck and were carried in the police car to the home of a judge nearby. It does not appear from the record what sort of judge he was nor what, if any, authority he possessed. The occupants remained in the police car while the officers went into the home of the judge. After a short time the officers and the occupants of the truck returned to the truck. It does not appear whether the occupants were under arrest during this period.

When they returned to the truck, they were met by a deputy sheriff who cut the lock from the door of the truck and discovered the illegal liquors.

From the evidence we have related we find the officers acted reasonably, had probable cause for stopping the truck and subsequently searching it to determine if it contained illegal liquor.

The actions and statements of the occupants, when considered in light of the information previously received, presented probable cause for an immediate search of the truck without first obtaining a warrant. Chambers v. Maroney, supra. Under the authority of Chambers v. Maroney, supra, and Texas v. White, supra, the probable cause, making an immediate warrantless search constitutionally permissible, still applied some hour or two later when the lock was cut and a search was made. The argued inference that a warrant could have been obtained when the officers went to Judge Fowler’s house, appears to us to be immaterial even if founded in fact. If the first seizure of the truck was reasonable due to probable cause, the search thereof some two hours later was equally reasonable though there had occurred opportunity for securing a warrant. The Fourth Amendment prohibits only “unreasonable searches and seizures.” It does not require that every search be made pursuant to a warrant. The question of whether a search or seizure is constitutionally reasonable is not to be determined from fixed rules, but must be determined from the facts of each case. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

The court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) said concerning seizure of an automobile carrying contraband liquor, as follows:

“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.”

Chambers v. Maroney, supra is the most often cited of a long line of cases following the rule of Carroll.

Upon the authority of Carroll v. U. S., supra, we affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.