author: ELLIS, Judge.

text:
    Clyde Bennett SAWYER v. Wilma Nell SAWYER.
    No. 11443.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Robert L. Kleinpeter, Richard B. Nevils, Baton Rouge, of counsel, for plaintiff-appel-lee Clyde Bennett Sawyer.
    Ernest E. Hartenstine, Denham Springs, of counsel, for defendant-appellant Wilma Nell Sawyer.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

On January 3, 1975, Clyde Bennett Sawyer was granted an absolute divorce from his wife, Wilma Nell Sawyer, and was awarded custody of their three minor children, Alan, 11, Brian, 9, and Karen, 6. The following stipulation was entered into by the parties prior thereto:

“IT IS STIPULATED BY AND BETWEEN the parties herein that custody of the minor children shall be granted unto the plaintiff, Clyde Bennett Sawyer, with visitation rights granted unto Wilma Nell Sawyer as follows, three (3) weeks during the summer months, every alternate week-end, and every alternate holiday. The dates and time for beginning to be regulated by the parties.
“It is further stipulated that the change of custody herein shall in no way reflect on either party hereto but only on the welfare and happiness of the children, all parties reserving all rights for further changes of custody according to law.”

On May 4, 1976, Mrs. Sawyer, now Mrs. McGregor, brought a rule to obtain custody of the children.. After trial on the merits, judgment was rendered, maintaining the custody of the children with Mr. Sawyer, and Mrs. McGregor has appealed.

The evidence, which is not disputed, shows that Mr. Sawyer was awarded his divorce on the ground of adultery. Immediately after the divorce, Mrs. Sawyer moved in with her paramour, and lived with him until he obtained a divorce from his wife. They were then married, and remain so.

Mr. and Mrs. McGregor reside in a 14 foot by 70 foot three bedroom trailer, situated on two acres of land. Mrs. McGregor has given up her job so that she can give full time to caring for the children, if she should obtain custody.

Mr. Sawyer has also remarried, and his wife has been caring for the children. They reside in a three bedroom house. The children attend school and church on a regular basis. They have been in the custody of their father since the January 3,1975, judgment was handed down.

The only reason advanced by Mr. Sawyer and his witnesses for not giving custody to Mrs. McGregor is the behavior which resulted in a judgment of divorce being rendered against her, and her conduct just after the divorce in living with Mr. McGregor out of wedlock. Neither party testified that the other was not capable of caring for the children.

The trial judge, without assigning reasons, maintained custody in Mr. Sawyer. Mrs. McGregor alleges that he erred in applying the so-called “double burden” rule to her, and in failing to apply the “maternal preference” rule.

There is nothing in the record to indicate what factors were considered by the trial judge in making his decision. However, application of the double burden to Mrs. McGregor would be improper, because there has heretofore been no considered decree of custody. We shall, therefore, assume that the trial judge followed the law applicable to initial custody determinations. See Partin v. Partin, 339 So.2d 450 (La.App. 1st Cir. 1976); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955).

In making an initial determination of custody, the following principles, quoted in Nethken v. Nethken, 307 So.2d 563 (La. 1975) are applicable:

“Universal and fundamental principles of the law support the proposition that the paramount consideration in custody cases is always the welfare of the child.
“In keeping with the law’s aim to promote the child’s welfare, the decisions have recognized that the child’s best interest is served when custody is awarded to the mother, especially when the child is of tender years. Based upon this premise, the mother’s right to custody is paramount. Thus custody should not be denied the mother unless she is morally unfit or otherwise unstable, and then only when the immorality or instability is such that these characteristics and her conduct adversely affect the child. It is only in exceptional cases that the child’s best interest is served by changing custody from the mother to the father.
“When the trial judge has made a considered adjudication of permanent custody based upon these principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of clearly proving that the continuation of the existing custody so adversely affects the child that the child’s removal is justified. “Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his findings will not be disturbed in the absence of a clear showing of error.”

In order to arrive at the result below, the trial judge must have concluded that Mrs. McGregor’s conduct rendered her morally unfit to have the custody of the children. There is evidence in the record from which the judge, who heard and observed Mrs. McGregor on the witness stand, could reasonably have reached this result. We are impressed by the fact that Mrs. McGregor voluntarily surrendered the children at the time of divorce, and that the children had remained in the custody of their father for almost two years by the time of trial herein. We find no manifest error in the result reached below.

The judgment appealed from is therefore affirmed, at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Raymond WOOLIE et ux. v. CITY OF BATON ROUGE.
    No. 11452.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Stan E. Branton, St. Francisville, of counsel, for plaintiffs-appellees, Raymond Woolie, et ux.
    Joseph F. Keogh, Parish Atty., Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, of counsel for defendant-appellant, City of Baton Rouge.
    William T. Kivett, Baton Rouge, of counsel for intervenor, Maryland Gas. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit by Raymond Woolie and his wife, Karen B. Woolie, for damages arising out of an automobile accident in which Mrs. Woolie was injured. Defendant is the City of Baton Rouge, Maryland Casualty Company, plaintiffs' collision insurer, intervened for the amount paid plaintiffs for the loss of their automobile. After trial on the merits, judgment was rendered in favor of plaintiffs and intervenor, and the City has appealed.

Mrs, Woolie was driving home on Florida Street in Baton Rouge, following another motor vehicle. The lead car suddenly pulled from the inside or left lane of traffic into the right hand lane, and Mrs. Woolie found herself confronted by a large hole, guarded by a barricade, completely blocking the lane. She applied her brakes, but was unable to stop before driving through the barricade and into the hole. Her testimony as to the absence of other warning devices or barricades was confirmed by the only eyewitness.

Witnesses for the City testified that the , hole had been dug about two hours before the accident, and that five barricades, three smudge pots and a sign warning that the lane was closed 500 feet ahead and been put out.

The trial judge made the following findings, after reviewing the facts:

“The testimony given by the witnesses Robinson and Wilkinson clearly demonstrate that this construction area was inadequately posted. The warning sign alleged to have been 500 feet back from the site was obviously much closer to the site but just how close remains in doubt. Neither Robinson nor Wilkinson saw smudge pots on the scene. The only barricades seen by Robinson and Wilkinson prior to the hole itself was the one located approximately 75 to 100 feet away from the hole. Considering that Florida Boulevard is a heavily traveled, multi-lane road with a speed limit of 50 miles per hour at this site, defendant breached its duty to adequately warn oncoming traffic of the construction site ahead and the breach of this duty has caused damage to plaintiff and her husband."

The only issues presented by the City of Baton Rouge are factual in nature, involving credibility of the witnesses, These questions were resolved adversely to defendant by the trial judge, and there is ample evidence to support his conclusions, We find no manifest error therein.

The judgment appealed from is affirmed, with defendant to pay all costs for which it may be legally liable.

AFFIRMED.


author: CHIASSON, Judge.

text:
    GEORGIA PACIFIC CORPORATION v. ARDENWOOD-MELROSE, INC., et al.
    No. 11463.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Charles S. McCowan, Jr., Baton Rouge, of counsel for plaintiff-appellee, Georgia Pacific Corp.
    James S. Holliday, Jr., Baton Rouge, of counsel for defendants-appellants, Arden-wood Melrose, Inc., et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Georgia Pacific Corporation, plaintiff-appellee, and against Ardenwood-Melrose, Inc., Wayne D. Swen-son, A. E. Probst, Ardenwood Enterprises and American Liberty Insurance Company, defendants-appellants, awarding the plaintiff $14,643.84 as the amount due under a contract of sale entered into by the plaintiff and defendants plus interest and costs.

The defendants purchased vinyl pre-hung interior doors from the plaintiff. The doors were to be used in the construction of an apartment complex and were to be delivered according to a prearranged schedule at a protected price. Prior to delivery the doors were to be stored in a Georgia Pacific warehouse. The doors were delivered as scheduled until the defendants fell behind in construction. The plaintiff at that time stored the remaining doors for an additional period. Then, in order to protect its price, the defendant took delivery of the remaining doors and stored them on the job site.

When the defendants failed to pay the portion of the purchase price due, the plaintiff filed a lien against the apartment complex and suit against the defendants. A bond was posted to free the apartment complex from the lien. The defendants filed an answer alleging that there were defects in the doors which entitled them to a reduction in price. A trial on the merits was held and judgment rendered awarding the plaintiff 80% of the amount of the claim.

The defendants have appealed this judgment contending that the District Court erred in:

“I. In Failing to Award Defendant-Appellants the Proper Reduction in Purchase Price Due to the Defective Nature of the Doors Delivered.
“II. In Failing to Allow the Introduction of Evidence Disputing the Value of the Debt Sued Upon.”

The plaintiff has answered the appeal asking that the award of the District Court be increased to the total amount sued for and be amended to include attorney’s fees.

The defendants argue that the 20% reduction given them by the District Court should have been applied to the total purchase price rather than to the amount due on the last delivery of doors. While the record reflects that there were some defective doors in the initial shipments, there is also evidence that these doors were returned to the plaintiff and replaced by it. The evidence supports the District Court’s finding that most of the damage to the last shipment occurred after delivery. There is testimony that these interior doors were not properly stored at the job site in that they were placed under overhangs where rain could reach them and in hallways where workmen would walk on them. The doors were stored upright instead of flat as per directions contained on each carton and were shifted from one place to another. This testimony is supported by photographs taken at the job site.

The District Court found, based on the evidence, that the defendants were entitled to a reduction in price for the unre-placed defective doors in the final shipment. There is evidence in the record to support the Trial Court’s finding that approximately 20% of the doors were defective. We find no manifest error in this conclusion.

The defendants argue that the District Court erred in refusing to admit evidence as to alleged overpayments by the defendants. The defendants contend that under the terms of the contract they should be given credit for a 2% discount for prompt payment for the doors delivered as scheduled. At issue is the manner in which this allegation must be pleaded.

The defendants admit that their allegation is an affirmative defense and under Code of Civil Procedure Article 1005 must be specially pleaded. They argue that this requirement was met in their Third Amended Answer when they stated:

“The defendants, have paid plaintiff all the money to which plaintiff is entitled and no further cause of action exists on behalf of plaintiff against defendants.”

The purpose of the requirement that an affirmative defense be specially pleaded is to give fair notice of the nature of the defense and to prevent surprise. Pittman v. Roberts, La.App., 337 So.2d 541 (2nd Cir. 1976). The mere statement that the defendants have paid the plaintiff all the money to which he is entitled is not fair notice that the defendants intend to raise the issue of the plaintiff’s failure to give them a 2% discount for prompt payment. Therefore, the District Court properly refused to admit evidence on this point.

The plaintiff contends that the District Court erred in failing to award attorney’s fees of 10% as provided for by R.S. 9:4842. An examination of the pleadings establishes that this relief was first requested on appeal. Therefore, this question is not properly before this Court and will not be considered. State v. Broussard, La.App., 153 So.2d 131 (3rd Cir. 1963).

For the above reasons, the judgment appealed is affirmed. Costs to be paid by the defendants.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Debra WAGSTER.
    No. 11464.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    See also, La.App., 348 So.2d 753.
    Premila Burns Chumbley, Asst. Dist. Atty., Baton Rouge, of counsel, for State of Louisiana.
    Donna W. Lee, Baton Rouge, of counsel, for defendant-appellant, Debra Wagster.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This appeal has been brought by Debra Wagster, appellant, a juvenile, from a decision of the East Baton Rouge Family Court, in which she was adjudicated delinquent for possession of marijuana.

On the night of October 28, 1976, Mrs. Sherry King called the East Baton Rouge Sheriff’s Office and asked that they investigate a van which had been parked in her driveway and whose occupants appeared to be peering in her window. About ten minutes before the Sheriff’s deputies arrived, and after having been parked for approximately twenty-five minutes, the van left the driveway and parked nearby at the edge of a park.

After their arrival the deputies located the van, approached it, and asked the occupants to get out of the van. When they did not get out the deputies opened the door of the van. Inside the van were the appellant and a companion. The deputies detected the odor of marijuana within the van. They then informed the appellant and her companion that they were being detained for the possession of marijuana and informed them of their rights. The deputies asked to search the van and were refused permission. The appellant’s companion was placed in the patrol car and the appellant was told to drive the van to her home. This was standard procedure in cases involving a juvenile. While in the patrol car the appellant’s companion told the deputies that there were three marijuana “roaches” in a Marlboro box on the van dash. One of the deputies then opened the van door and took the Marlboro box which contained the “roaches.” The deputy did not have a search warrant.

Prior to a trial of this matter the appellant filed a motion to suppress contending that the marijuana was obtained as the result of an illegal search and was therefore inadmissible. The trial judge overruled the motion holding that there was probable cause and exigent circumstance which warranted the officer in making his very limited search. The appellant contends the judge erred in this holding.

One of the recognized exceptions to the warrant requirement of the fourth amendment permits a moving vehicle to be searched without a warrant where there exists probable cause to search the vehicle and where exigent circumstances make the securing of a warrant impractical. State v. de la Beckwith, La., 344 So.2d 360 (1977). In the present case there existed probable cause to approach the van, the complaint of Mrs. King, probable cause to open the door, the refusal of the appellant and her companion to get out of the van when requested, probable cause to detain the appellant and her companion for possession of marijuana, the odor of marijuana in the van, and probable cause to seize the Marlboro box, the statement of the appellant’s companion.

At issue is whether there were exigent circumstances which made it impractical to obtain a warrant. In State v. Hearn, La., 340 So.2d 1365 (1976), in discussing the question of exigent circumstances it was said:

“. . . The appellants correctly point out that ‘exigent circumstances’ do not exist solely because a moving vehicle is to be searched. ‘The word “automobile” is not a talisman in whose presence the Fourth Amendment fades away and disappears.’ Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564. The rationale of the automobile exception is that ‘the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting . . . ’ Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419; State v. Massey, [310 So.2d 557 (La.1975)] supra.
“In this case, as the State argues, the van was traveling at night and due to the van’s construction the contraband could have easily been thrown out of the side door to the shoulder of the road if the defendants detected the surveillance. However, these circumstances, which existed for most of the trip from Dallas to Lincoln Parish, might not constitute ‘exigent circumstances’ if it were practical to secure a warrant before the search. Although probable cause need not arise ‘coincidentally with the occurrence of the exigent or unforeseeable circumstance,’ State v. Tant, La., 287 So.2d 458, 460, the facts which are alleged to constitute ‘exigent circumstances’ should not be considered as such if they are of a continuing nature giving ample opportunity for the law enforcement personnel to seek a neutral magistrate’s judgment as to the existence of probable cause.”

In the present case it was night and the marijuana could easily have been thrown out of the door. Additionally, the appellant, as was customary in juvenile matters, was alone in the van when the existence of the evidence was discovered and the appellant might easily have disposed of the evidence. Under these conditions, exigent circumstances warranting the search existed. Therefore, the Trial Judge did not err in overruling the motion to suppress.

The appellant also contends that the Trial Judge erred in finding that the appellant was in possession of marijuana, a violation of R.S. 40:966(C). In making this finding the Trial Judge stated:

“I am of the opinion that the evidence leads inevitably to the conclusion that these two young ladies were in that vehicle smoking marijuana cigarettes at and immediately prior to the time they were apprehended, and at that point, regardless of who may have originally bought the marijuana, Wendy says that it was her’s, they were jointly in possession of it; they were jointly smoking it, and shared the same one, according to their testimony, and so I am of the opinion that they were both concerned in the commission of a crime. Under Article 24 of the Criminal Code, they were both directly committing the act. They were aiding and abetting each other into commission. They were apparently pulled into the driveway for concealment purposes. They were both principals, and they were equally guilty.”

There is evidence in the record, the testimony of the appellant, her companion and the investigating officers which support this conclusion. The appellant’s only claim is that she did not know that the “roaches” were in the Marlboro box when it was seized by the police. The Trial Judge did not err in finding that the appellant had possession of marijuana in violation of R.S. 40:966(C).

For the above reasons, the judgment appealed is affirmed.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of Debra WAGSTER.
    No. 11466.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    See also, La.App., 348 So.2d 751.
    Premila B. Chumbley, Asst. Dist. Atty., Baton Rouge, of counsel for State of Louisiana.

      Donna W. Lee, Baton Rouge, of counsel for defendant-appellant, Debra Wagster.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Debra Wagster, appellant, a juvenile, has brought this appeal from a decision of the East Baton Rouge Family Court declaring her delinquent and placing her under supervised probation. The record presented to this Court on appeal is incomplete due to the sporadic failure of the device used to record the appellant’s juvenile hearing in accordance with La.R.S. 13:1579. A juvenile court is required by law to record juvenile proceedings and to make the testimony available for transcription. In re State in Interest of Collins, La.App., 288 So.2d 918 (1st Cir. 1973); State in Interest of Aaron, La.App., 266 So.2d 726 (3rd Cir. 1972).

Among the errors specified by the appellant is the Trial Court’s denial of the appellant’s Motion to Suppress. The evidence sought to be suppressed was obtained pursuant to a search warrant. At issue is whether probable cause existed for the issuance of the warrant. Because the record does not contain the application and affidavit upon which the search warrant was issued and because testimony as to the validity of the allegations on the affidavit was lost due to the failure of the recording equipment the record is so incomplete as to make impossible a determination as to whether evidence was admitted which was obtained as the result of an illegal search and seizure.

Therefore, for the above reasons, the supervised probation of the appellant is set aside and the case remanded for rehearing.

PROBATION SET ASIDE AND REMANDED.


text:
    Mary Lou Cavet DELAPASSE et al. v. Mary Nell PHILLIPS.
    No. 11470.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Joseph R. Raggio, Baton Rouge, of counsel for plaintiff-appellee, Mary Lou Cavet Delapasse, et al.
    Joel B. Dickinson, Baton Rouge, of counsel for defendant-appellant, Mary Nell Phillips.
    Before ELLIS, CHIASSON and COLE, JJ.
   CHIASSON, Judge.

This appeal has been brought from a judgment of the District Court awarding Mary Lou Cavet Delapasse, plaintiff-appel-lee, attorney’s fees in the amount of $200.00 plus costs following a hearing on a “Motion to Compel Production of Documents and for Contempt.”

The minute entry in this case for June 4, 1976 states:

“For oral reasons this date assigned, the Court overruled the exception of jurisdiction, filed on behalf of defendant; overruled the motion filed by defendant, through counsel; granted the motion and order to compel the production of documents, filed on behalf of plaintiff, and set the date for the production for the 16th day of June, 1976 at 10:00 a. m.; awarded plaintiff attorney’s fees in the sum of $200.00, plus costs; and denied the motion to have the defendant adjudged in contempt.”

The signed judgment dated August 26, 1976, provides only for the award of attorney’s fees of $200.00 and costs.

Mary Nell Phillips, defendant-appellant, contends:

“1. The District Court erred in overruling defendant’s exception to the Court’s jurisdiction, as defendant is a non-resident of this State.
“2. The District Court erred in granting plaintiff judgment for attorney fees for failure to answer interrogatories and produce documents, in view of the fact that defendant’s Exception to the Jurisdiction was pending and had not been tried prior to the rendition of the judgment for attorney fees.”

A judgment overruling a declinatory exception of lack of personal jurisdiction is an interlocutory judgment and is not ap-pealable, absent a showing of irreparable injury. Fontenot v. O’Brien, La.App., 302 So.2d 399 (1st Cir. 1974). Because there has been no showing of irreparable injury, the judgment overruling the defendant’s exception is not appealable.

The judgment awarding attorney’s fees and costs, while rendered in favor of the plaintiff, cast neither the defendant nor her attorney to pay this award. There are cases holding as valid judgments reading “for the plaintiff” or “against the defendant”. In these cases, however, the parties thus designated could be ascertained without ambiguity from other parts of the record. In the present case this cannot be done because the order signed by the District Judge is for the defendant and her attorney to show cause why they should not pay attorney’s fees and the costs of the hearing.

Additionally, the failure to specify the party cast makes it impossible to determine whether the judgment is appealable. Berard v. American Employers Insurance Company, La.App., 246 So.2d 686 (1st Cir. 1970).

For these reasons, the appeal is dismissed insofar as it pertains to the exception of lack of personal jurisdiction and remanded to the District Court for a determination of the party or parties cast on the question of the award of attorney’s fees and costs.

Costs of this appeal to be paid one-half by the plaintiff and one-half by the defendant.

DISMISSED IN PART AND REMANDED IN PART.

      . Glen Falls Indemnity Co. v. Manning, 168 So. 787 (Ct. of App.-Orleans, 1936); Siekmann v. Kern, 136 La. 1068, 68 So. 128 (1915).


text:
    Dianne Hughes DEAN v. GENERAL FINANCE CORPORATION, a/k/a General Finance Loan Company of Baton Rouge.
    No. 11576.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    James J. Zito, Baton Rouge, of counsel, for plaintiff appellee, Dianne Hughes Dean.
    John F. McKay, Baton Rouge, of counsel, for defendant appellant, General Finance Corp. a/k/a General Finance Loan Co. of Baton Rouge,
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This matter is before this Court, ex pro-prio motu, so we may determine if the appeal of General Finance Corporation should be dismissed for the failure to timely file an appeal bond.

On December 9, 1976, the District Court read and signed a judgment in favor of Dianne Hughes Dean, plaintiff, and against General Finance Corporation, defendant, dissolving a writ of fieri facias and garnishment filed by the defendant and awarding the plaintiff $150.00 as attorney’s fees. The defendant applied for a devolutive appeal from this judgment on March 9, 1977. On March 10, 1977, the appeal was granted and the appeal bond set at $250.00. On May 10, 1977, the appeal bond was filed.

A devolutive appeal must be taken and security furnished within sixty days of the expiration of the delay for applying for a new trial when a timely application for a new trial is not made or within sixty days of the denial of a timely application for a new trial. C.C.P. Art. 2087.

The delay for applying for a new trial is seven days, exclusive of legal holidays. C.C.P. Art. 1974.

In this case the delay for applying for a new trial expired on December 20, 1976. Consequently, the delay for perfecting a devolutive appeal expired on February 18, 1977. Neither the application for the appeal nor the appeal bond were timely filed.

Appellate Courts do not acquire jurisdiction of an appeal which is not timely perfected. Taylor v. Harvey, La.App., 340 So.2d 1072 (1st Cir. 1976).

Therefore, the defendant’s appeal is dismissed at its cost.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Daniel SMITH v. Donald W. BICKLEY and Elizabeth Pitcher Bickley Northey.
    No. 11465.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Bernard S. Smith, Covington, for plaintiff appellant.
    J. David McNeill, III, Baton Rouge, for defendants appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for specific performance of a contract for the purchase of land. Plaintiff has appealed the trial court’s sustaining of defendants’ exceptions..

The issue on appeal is whether the trial court properly maintained defendants’ peremptory exceptions of prescription and no cause of action.

We reverse and remand.

Plaintiff, in his petition alleges the following: that in 1948 he offered to buy and defendants’ mother agreed to sell a piece of property for $800.00; that defendants’ mother thereafter refused to respond to his letters informing her that the succession of her late husband would have to be opened in order to deliver merchantable title; that defendants’ mother died in 1958, and in 1976 a judgment of possession was granted recognizing defendants as the sole heirs of their mother, and as such the owners of the subject property; that plaintiff paid taxes on the property in 1952, and has at all times been ready, willing and able to perform the agreement.

We believe the exception of no cause of action was improperly maintained. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. Article 931. This exception must be disposed of on the face of pleadings alone and any attachments thereto. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970).

Plaintiff pleaded offer, acceptance and the failure of defendants’ mother to deliver good and merchantable title. Although exhibits marked as Bickley I, II and III, attached to exceptions, do not show that the parties ever reached an agreement on the terms of the sale, this evidence may not be considered because it was not alleged in or attached to plaintiff’s petition. The allegations, although largely conclusions of law rather than well pleaded facts, are sufficient to state a cause of action.

Plaintiff also claims the trial court erred in sustaining the peremptory exception of prescription. This exception was evidently based on the fact that more than ten years had passed from the date the offer was allegedly accepted before suit was filed.

An action for specific performance of a real estate contract is a real action. Thirty years’ prescription is applicable. State v. Grace, 197 La. 428, 1 So.2d 683 (1941); Mussina v. Alling, 11 La.Ann. 568 (1856); LSA-C.C. Article 3548.

Although the judgment sustained the plea of prescription, counsel have spoken in terms of laches, which however is inapplicable since a specific time for enforcement of the right is given. Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966).

On the other hand, the passage of ten years’ time has been sufficient on the claim for advanced taxes and the cost of title examination. However, if the grounds of the objection can be removed by amendment, the opportunity should be afforded by the court. LSA-C.C.P. Article 934.

For the above reasons, the judgment of the lower court is reversed and remanded for proceedings not inconsistent with this opinion. Costs of this appeal are to be borne by the defendants; all other costs to await the outcome of the litigation.

REVERSED AND REMANDED.


text:
    Autry Lee JONES v. Captain William HANKINS, Louisiana State Penitentiary.
    No. 11467.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Autry Lee Jones in pro. per.
    Patrick J. Briney, Baton Rouge, of counsel, for defendant-appellee Capt. Wm. Han-kins, La. State Penitentiary.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages to personal property. Plaintiff has appealed.

The only issue on appeal is whether the lower court committed manifest error in dismissing plaintiff’s suit against defendant.

We affirm.

At the time of the alleged incident, plaintiff was an inmate and the defendant a correctional officer at Louisiana State Penitentiary at Angola. Plaintiff was playing his combination radio-tape player without the use of earphones, contrary to prison rules. The defendant ordered another officer to confiscate the tape player and place it in the prison safe.

Plaintiff testified that after the tape player was returned about thirty days later, he brought it back to his cell and gave it to another inmate. The other inmate attempted to play a tape and found that it dragged; so he then decided to clean the recorder. It was shortly thereafter, plaintiff says, that he found out the property was damaged.

The defendant admitted that he ordered the tape player confiscated and stored in the prison safe. However, he stated emphatically that he did not damage the property, and he saw no evidence of damage when he returned it to plaintiff.

Numerous persons on the staff have access to the safe at Angola.

The trial court held that the plaintiff had failed to prove his case by a preponderance of the evidence. We find no manifest error in the trial court’s finding. In the absence of manifest error, the trial court’s decision must be affirmed. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

For the above reasons, the judgment of the trial court is affirmed; plaintiff is cast with all costs.

AFFIRMED.


text:
    D. D. DAVIDGE d/b/a College Town Apartments v. Sam RELAN.
    No. 11468.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Autley B. Newton, II, Hammond, for D. D. Davidge, plaintiff-appellee.
    Charles B. W. Palmer, Amite, for Sam Reían, defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an action for rent and damages to a leased apartment. Defendant has appealed the trial court’s award.

The only issue is whether the trial court manifestly erred in granting judgment in favor of the plaintiff.

We affirm.

Defendant leased an apartment from plaintiff and made a $100.00 deposit. After living in the apartment about four months and paying rent regularly, defendant vacated the premises, well in advance of the expiration of the lease.

Plaintiff contends that the apartment was left in such condition that it cost $873.00 to repair it. Mr. Dickey Davidge, the manager of the apartments, listed the damages in a sworn affidavit. Mr. Otis Brumfield, a part time maintenance man, who testified that he saw the apartment shortly after defendant moved, essentially corroborated Davidge’s testimony.

Defendant claimed that he left the apartment with only minor damage. He testified that one of plaintiff’s employees periodically inspected the apartment and even helped him move, without indicating any dissatisfaction with the condition of the apartment. This witness was not produced at the trial, however.

The trial court did not manifestly err in accepting the testimony of plaintiff’s witnesses over that of the defendant. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

Defendant argues in brief that the court should have excluded the testimony of Mr. Davidge because it was hearsay. However, Mr. Davidge said he knew the condition of the apartment from observation. The court could reasonably have believed this and concluded that his testimony was not hearsay.

We are unable to understand defendant’s argument that the lower court did not properly apply LSA-C.C. Art. 2277, which reads as follows:

“All agreements, relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

If defendant refers to the lease, it is in writing and was introduced into evidence.

The agreement to pay for damages beyond reasonable wear and tear is expressly stated therein.

Furthermore, the plaintiff’s case was supported by the testimony of two witnesses the court found credible.

The court awarded $958.00 plus $100.00 attorney’s fees. Appellant has not briefed the amount of the award and we find no error.

The judgment of the trial court is affirmed at defendant’s cost.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Valcour FONTENOT, Plaintiff & Appellant, v. Walter LEE, Parish Custodian, Board of Supervisors, Paul J. Hardy, Secretary of State, and Larry Vidrine, Defendants & Appellees.
    No. 6263.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.

      Guy 0. Mitchell, III, Ville Platte, for plaintiff-appellant.
    Fusilier, Pucheau & Soileau by A. Gaynor Soileau, Ville Platte, Tommy D. Teague, Dept, of Revenue, Baton Rouge, for defendants-appellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

This is an election suit. Plaintiff-appellant, Valcour Fontenot, and defendant-ap-pellee, Larry Vidrine, were candidates for City Councilman of District C of the Town of Ville Platte in Evangeline Parish. The tabulations by the Board of Supervisors of Elections showed Fontenot lost 465 to 462. Fontenot timely filed a petition contesting the results alleging fraudulent and irregular conduct in the election. He also sought a recount of absentee ballots.

Plaintiff joined as defendants Walter Lee, Clerk of Court and Parish Custodian, the Board of Supervisors, Paul J. Hardy, Secretary of State, and Larry Vidrine.

Defendant Vidrine filed an Answer and Exception of No Cause of Action. In the exception Vidrine argues the allegations in plaintiff’s petition are not sufficiently specific and that some allegations amount only to an improper collateral attack upon the registration of the voters in question.

Plaintiff subsequently amended his petition to allege more specifically the fraud and irregularities. At the hearing in the trial court the absentee ballots were first recounted, which resulted in the nullification of one vote for defendant Larry Vid-rine. The parties agree the final count is Vidrine 464 and Fontenot 462.

The District Court then heard arguments on the Exception of No Cause of Action which he sustained. From a judgment sustaining the exception, plaintiff Fontenot now appeals.

Essentially, the district court held that plaintiff’s original and amended petitions failed to state a cause of action because (1) the allegations of fraud and irregularity are not sufficiently specific, and (2) there are no allegations that the fraud or irregularities were protested at the polls on election day. The correctness of these rulings is the substantial issue on appeal.

Plaintiffs original and supplemental petitions allege:

“10.
“Certain irregularities and/or fraud were committed during the election, such that he was deprived of a victory in the election, such irregularities and/or fraud being set out as follows, but not limited to the below listed events:
“(1) In Precinct 10, voting commissioner, Thomas Reed, entered into a voting machine without the request of the voter, Mrs. Jimmie B. Fontenot, and against her wishes and changed the vote on the machine from that of Valcour Fontenot to Larry Vidrine without the voter’s consent.”
“ ‘10(2).
“The following voters were directed to enter the wrong voting booths (three voting booths were set up at the Lavergne Poll, Precinct 9, only one of which contained provisions for voting for Councilman, District C.; none of which were marked to set out this difference) such that they were unable to vote for the District C Councilman office; they were unable to change to another voting booth either because they had pulled the key closing the booth and had proceeded to vote before noticing there was no provision for voting for District C Councilman or because they were prevented by the commissioners from changing booths; all such voters having the definite intention to vote for Valcour Fontenot and all such voters complaining either before or after their vote was cast to the commissioners: Gerald Morein directed to wrong booth by commissioner, Hillary Vizinat, and R. P. Landry directed to wrong booth by commissioner George Martin.”
“(3) The following voters lived outside the District C area at the time of registration and voting but nevertheless voted on election day for Councilman, Ward One, District C, Ville Platte, Evangeline Parish, Louisiana:
(a) Mr. and Mrs. Cecil Reed.
(b) Elton Fontenot
(c) Lionel Fontenot
(d) Jacqueline Ardoin Vidrine, daughter-in-law of candidate, Larry Vidrine.
“(4) Certain fraud and/or irregularities were committed during the absentee voting and/or the counting of such votes.
“(5) Other irregularities and/or fraud to be brought at the trial of this matter.”

The following portions of Louisiana Revised Statutes, Title 18:420(B) are controlling:

“Any candidate for nomination to any office who claims that but for irregularities or fraud he would have been nominated and/or he would have been entitled to enter a general election and who desires to contest the election, shall present a petition to the judge of the district court . . . . If the office be a municipal, parochial or district office, the petition shall be presented to the district court of the parish in which the contestee resides. The petition shall set forth specifically and in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made.”

The jurisprudence has established certain general rules. In Landry v. Ozenne, 194 La. 853, 195 So. 14 at page 23 (1940) the court stated:

“Before a candidate in a primary election can be heard in the courts to attack the returns of the election, he must show by the clearness and particularity of the allegations of his petition that he has been deprived of the nomination by the fraudulent or wrongful acts of the election officials.”

This proposition was deemed well established in a more recent case where the court cited several cases to support its statement:

“It is well established that any judicially contested election must be based upon the fact that a different result would have obtained but for the occurrence of the specified irregularities in the conduct of the election.” See Cartwright v. Police Jury of Bossier Parish, 106 So.2d 842 (La. App. 2d Cir. 1958)

This court in Love v. Cross, 158 So.2d 614 (3rd Cir. 1963) stated plaintiff in an election contest must (1) allege specific frauds or irregularities, (2) show that the frauds or irregularities did in fact alter the result, (3) show that the fraudulent conduct prevented the electors from expressing their will, and (4) show it was impossible for the plaintiff to protest the conduct before or at the time of the election.

The Louisiana Supreme Court in Garrison v. Connick, 291 So.2d 778 (La.1974), seemed to make the requirements which a plaintiff in an election case must meet somewhat less demanding. It treated the following as settled jurisprudence:

“ . . .it has been recognized that if the court finds the proven frauds and irregularities are of such a serious nature as to deprive the voters of the free expression of their will, it will decree the nullity of the entire election — even though the contestant might not be able to prove that he would have been nominated but for such fraud and irregularities. (Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292; Vidrine v. Eldred, 153 La. 779, 96 So. 566).”

There is no serious question that the allegations of paragraphs 10(1) and (2) of plaintiffs petition in the present case allege with sufficient specificity fraud and irregularities which would change the election result. The tabulated vote was Vidrine 464 and Fontenot 462. If, as alleged in paragraph 10(1) quoted above, Mrs. Jimmie B. Fontenot’s vote was fraudulently changed, the count should be 463 to 463. And if, as alleged in paragraph 10(2), two voters who would have voted for Fontenot were improperly directed by commissioners to enter the wrong booth, then the count should be Vidrine 463 and Fontenot 465. These specifically alleged frauds and irregularities would change the election result in plaintiff’s favor.

The trial judge did not find paragraphs 10(1) and (2) insufficiently specific. He found 10(3) alleged only a collateral attack on registration, and that 10(4) and (5) alleged no specifics as to fraud. We do not reach these issues under 10(3), (4) and (5), since we find a cause of action is alleged under 10(1) and (2).

The district judge held 10(1) and (2) insufficient since there is no allegation that these irregularities were protested at the polls. He cites Landry v. Ozenne, 194 La. 853, 195 So. 14 (1940) which held that where ballots were cast without prior protest as to non-residence or age, these objections could not be later urged in an election contest. He also cites Love v. Cross, supra, which states a general principle that plaintiff must show it was impossible for him to protest the irregularity before or at the election. Neither of these cases are authority for the holding in the present case that all irregularities at the polls on election day must be protested at the polls. Counsel have not cited, nor have we found, any case or statute which supports such a rule. To the contrary, in the recent Supreme Court case of Garrison v. Connick, 291 So.2d 778 (La.1947), the court overruled defendant’s exception of no cause of action even though plaintiff had made no protest before or on election day as to the many votes contested.

This court in the case of Love v. Cross, supra, indicated that there may be times when the irregularities are such that it would be impossible for the plaintiff to have protested them on election day. The alleged irregularities in the instant case are of that nature. Once Mr. Reed cleared the machine, it would have been a vain and useless thing for Valcour Fontenot to protest at the scene. The same is true in the instance where voters were directed to the wrong machines and commenced voting before they realized the mistake.

We find no statute or jurisprudence requiring dismissal of plaintiff’s suit because of his failure to protest these alleged irregularities on election day.

We find no merit in defendant’s argument that the trial judge improperly considered plaintiff’s supplemental petition. See Garrison v. Connick, supra.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered overruling defendant Vidrine’s exception of no cause of action. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant Vidrine. Assessment of costs in the district court must await a final judgment there.

REVERSED AND REMANDED.


author: NEAL B. BIGGERS, Commissioner

text:
    Teresa CARLISLE v. STATE of Mississippi.
    No. 49699.
    Supreme Court of Mississippi.
    July 27, 1977.
    Johnston, Wright & Steinberger, Fielding L. Wright, Jr., Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen. and Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and BIGGERS, Commissioner.
   NEAL B. BIGGERS, Commissioner

for the Court:

Teresa Carlisle was convicted in the Circuit Court of Jackson County of the murder of her estranged husband, Thomas “Tom Boy” Carlisle, and sentenced to life imprisonment. It is undisputed that on September 27, 1975, the defendant shot and killed the deceased while he was sitting in an automobile with Jo Ann Gibson at a gas station belonging to defendant’s father. Excluding the deceased, there were three eye-witnesses to the shooting — defendant, defendant’s father, William Gordon, and Jo Ann Gibson. All three testified at the trial. The primary issue of fact was whether the defendant shot in reasonable self-defense. Both the State and the defendant introduced testimony of previous threats having been made against each other by the defendant and the deceased. With that background, Jo Ann Gibson testified that while she and the deceased were sitting in the car at the gas station, the defendant walked up to the car, opened the door and stated, “Tom Boy, I ought to kill you,”, then pulled out a pistol and stated further, “I think I will.” She then shot the deceased at least two times. The witness further testified that all the time the defendant was present at the car, prior to and during the shooting, the deceased said nothing and his hands remained motionless on the steering wheel.

In contradiction to the testimony of Miss Gibson, the defendant and her father testified that the defendant went to the car to ask the deceased for a quiet divorce and a stop to their quarreling, and that the deceased replied, “A dead woman don’t need a divorce,” whereupon, he reached toward the back seat where testimony showed he usually kept an over and under shotgun and rifle. The testimony of the defendant and her father was that when the deceased reached over into the back seat, the defendant then pulled out a pistol and shot the deceased out of fear that he was about to shoot her.

Up until that point in the trial the issue of whether the shooting was done in necessary and reasonable self-defense, and the question of the credibility of the witnesses was clearly in issue and for the jury tó determine. Then, upon cross-examination of the defendant’s father, Mr. Gordon, the district attorney asked him the general question of whether or not he had told the two assistant district attorneys that he had reason to know that the defendant had planned to kill the deceased. Of course, in laying the predicate to introduce prior inconsistent statements of a witness, the questions should include whether or not on a specific date, at a specific place, and in the presence of specific persons, the witness made a particular statement. Bonelli et a 1. v. Bowen, 70 Miss. 142, 11 So. 791 (1892). Then with the predicate properly laid, the witness may be impeached by showing prior statements inconsistent with the in-court testimony, so long as the statement made in court is one relevant to the issue in the case and therefore not collateral. Williams v. State, 73 Miss. 820, 19 So. 826 affirmed 120 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012 (1896).

The pertinent parts of the cross-examination and answers of Mr. Gordon are as follows:

Q. Well, to be more specific, I’ve got two assistant district attorneys, Mr. Colingo and Mr. Lachaussee. Did you ever tell them that you had reason to know that Teresa had reason to kill him? To kill Tom Boy?
A. Well, sir, a witness came to us and told us that they had overheard her, and she had called him and told him that.
Q. And I understand . . . you said a witness . . . somebody told you that Teresa had planned to kill him. Is that what you are saying?
A. Yes, sir.
Q. That would be the grounds that you told them that you knew she planned to kill him?
A. That’s right.

With that predicate and subject matter, the State called Mr. Colingo, the assistant district attorney, on rebuttal. Mr. Colingo testified on voir dire outside the presence of the jury, that on the previous afternoon Mr. Gordon had stopped Mr. Colingo in the hall of the courthouse and told him that he knew Teresa had planned on killing TomBoy. On cross-examination of Mr. Colingo, still on voir dire, Mr. Colingo testified he asked Mr. Gordon several times if he had “personal knowledge” of this plan by the defendant, and the father answered in the affirmative; however, Mr. Colingo on further cross-examination said he did not know on what the witness based his “personal knowledge” and neither Mr. Colingo nor the other prosecutors went into it with the witness. It was obvious to the prosecutors after hearing the aforestated cross-examination of Mr. Gordon, the defendant’s father, that he based his knowledge of the defendant’s plan not on anything the defendant had said, but on something someone else had told Mr. Gordon the defendant said. This type of rebuttal testimony has been held improper and reversible error in a long line of cases beginning with Williams v. State, supra. The rule laid down in Williams has consistently been followed in this jurisdiction. Kelly v. State, Miss., 278 So.2d 400 (1973); Price v. Simpson, Miss., 205 So.2d 642 (1968); Holden v. State, 226 Miss. 726, 85 So.2d 208 (1956); Gofer v. State, 158 Miss. 493, 130 So. 511 (1930); Ware v. State, 145 Miss. 247, 110 So. 503 (1926); Dunk v. State, 84 Miss. 452, 36 So. 609 (1904); Jeffries v. State, 77 Miss. 757, 28 So. 948 (1900); and Garner v. State, 76 Miss. 515, 25 So. 363 (1899). In the Williams case the facts were very similar to the case under consideration here. An eye-witness to the shooting testified for the defendant. On cross-examination, she was asked by the State whether or not she said at the scene of the shooting that “they made up a plot to kill him three weeks ago.” She denied making the statement and the State called in rebuttal a witness who testified she did make such a statement at the scene. In reversing the conviction because of this rebuttal testimony, this Court then said:

“The test as to whether a matter is collateral within the meaning of the rule, is this: That the cross-examining party be allowed to prove it in support of his case” . . . “It must be remembered, also, that this test applies to the subject-matter of the inquiry, and not to the admissibility of the evidence offered in proof of it” . . . Applying it here, we think it is clear that it was error to permit the witness, Jeems, to testify to the alleged contradictory statement made out of court . . . The exact test here is, what was the fact embodied in her unsworn statement? This, that she had sent Elsie Ross word that there was a plot, etc.; had said to her that there was a plot, etc. Was this fact — her mere statement to Elsie that there was a plot, etc. — a substantive fact relevant to the guilt or innocence of this defendant, which the state could have proved as a part of its case in chief? Most certainly not. It is, in effect, but hearsay, and should have not been allowed to be contradicted. Whether she made such statement or not is a matter clearly irrelevant and collateral within the test we have laid down, and hence she could not be contradicted as to it. (73 Miss, at 829-30, 19 So. at 829).

Since the term “personal knowledge” does not normally have the same connotation to a layman as it has to one skilled in the rules of evidence, and in view of the fact that no one in the prosecutor’s office saw fit to inquire of Mr. Gordon on what his “personal knowledge” was based, it was, therefore, evident after answering the district attorney’s questions on cross-examination that Mr. Gordon had only hearsay knowledge of any plan on the part of the defendant. Therefore, as in the Williams case, supra, the rebuttal testimony was improper and should not have been allowed, and the verdict must, as a result, be reversed.

The State has cited the case of Breakfield v. State, 275 So.2d 860 (Miss.1973), as authority that in some cases even when improper rebuttal testimony is given, it does not demand reversal if surrebuttal is offered, as it was here; however, in view of the obvious hearsay basis of any knowledge by Mr. Gordon of a plan by the defendant, especially after the extensive voir dire of Mr. Colingo before he was allowed to testify in the presence of the jury, the Court is of the opinion that Breakfield is inapplicable here, and the case should be remanded for another trial.

The remaining assignments of error are considered without merit and will not be discussed here.

REVERSED AND REMANDED.

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

GILLESPIE, C. J., took no part.

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


text:
    GLENN DUKE MOBILE HOME SALES, INC. and B. E. Fisher v. C. I. T. FINANCIAL SERVICES.
    No. 49568.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Anthony L. Phillips, Jackson, for appellant.
    King & Spencer, Robert W. King, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Leon F. Hendrick, Judge.

Before ROBERTSON, SUGG and BROOM, JJ., and NEAL B. BIGGERS, Commissioner.

AFFIRMED.


text:
    Mace SIEGEL and Goodrich Realty & Development Group, Inc. d/b/a Macerich Real Estate Company II and Provident Life and Accident Insurance Company (A Tennessee Corporation) both d/b/a Jackson Mall Shopping Center Company v. HUNT & WHITAKER, INC.
    No. 49538.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Young, Scanlon & Sessums, Brad Ses-sums, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da; Lawrence J. Franck, Rhesa H. Barks-dale, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before INZER, P. J., and ROBERTSON and WALKER, JJ., and KERMIT R. COF-ER, Commissioner.

AFFIRMED.


text:
    J. C. BURGESS, Jr., et al. v. LONE STAR PRODUCING COMPANY et al.
    No. 49546.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Richard E. Stratton, III, Brookhaven, for appellants.
    Heidelberg, Woodliff & Franks, Kenneth I. Franks, Luther M. Thompson, Jackson, Donald B. Patterson, Brookhaven, Kenneth M. Britt, Jackson, for appellees.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Phyllis Rae WITCHER, Admrx. of Estate of Larry Dean Witcher, Deceased v. Frank SMITH et al.
    No. 49569.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Upshaw, Dale, Dorizas & Calhoun, Angelo J. Dorizas, Heber Ladner, Jr., Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, John M. Roach, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before ROBERTSON, SUGG and BROOM, JJ.

AFFIRMED.


text:
    Louis Cornelius JAMES, Jr. v. STATE of Mississippi.
    No. 49815.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Morris & Coats, Patricia A. Coats, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

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

AFFIRMED.


text:
    James FLOWERS v. STATE of Mississippi
    No. 49828.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Herman SMITH v. Mrs. Freddie B. YOST.
    No. 49518.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Hurlbert & O’Barr, George F. Bloss, III, Biloxi, for appellant.
    Bryan, Nelson, Allen & Schroeder, David L. Cobb, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before PATTERSON, C. J., SMITH, P. J., LEE, J., and JAMES D. HESTER, Commissioner.

Affirmed.

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


text:
    Martha Sue MACON v. Thomas Leon MACON.
    No. 49517.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Riddick & McCoy, B. L. Riddick, Jackson, for appellant.
    Williams, Rogers, Gunter & Fulgham, V. Douglas Gunter, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

Before PATTERSON, C. J., SMITH, P. J., and LEE, J.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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


text:
    SECURITY BANK AND NATIONAL BANK OF COMMERCE OF CORINTH v. ALCORN BANK & TRUST COMPANY.
    No. 50128.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Smith, Downs, Coleman & Ross, Orma R. Smith, Jr., Price & Krohn, James E. Price, Corinth, for appellant.
    John L. Hopkins, Corinth, for appellee.
   Appeal from Chancery Court, Alcorn County; George F. Adams, Chancellor.

Before SUGG, WALKER and BROOM, JJ.

AFFIRMED.

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


text:
    Linda Darley BREAZELLE v. Donald Wayne EZELL, Jr.
    No. 49540.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Eppes & Shannon, Walter W. Eppes, Jr., Meridian, for appellant.
    Richard E. Wilbourn, Don 0. Rogers, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

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

AFFIRMED.

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


text:
    Luther D. TONEY v. STATE of Mississippi.
    No. 49826.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    George M. Simmerman, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

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

AFFIRMED.

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


author: LEE, Justice,

text:
    Paul J. HOLLOWAY v. PRASSELL ENTERPRISES, INC. and Liberty Mutual Insurance Company.
    No. 49511.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    John L. Walker, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellees.
    Before PATTERSON, SMITH and LEE, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of the First Judicial District of Hinds County affirmed an order of the Mississippi Workmen’s Compensation Commission granting compensation benefits to Paul J. Holloway for temporary total disability from June 1, 1973, to September 12, 1973, together with reasonable and necessary medical services and denying disability benefits for high blood pressure claimed to result from an injury sustained June 1, 1973. Holloway appeals here and we affirm.

Claimant assigns as error:

(1) His present disabilities, sinkable attacks, high blood pressure and hypertension were caused by an injury sustained on June 1, 1973.

(2) The testimony of claimant and Dr. Robert Smith was arbitrarily rejected by the administrative judge and the commission.

(3) The circuit court utilized the wrong burden of proof in determining whether claimant proved causal relationship.

(4) The Commission’s order and the circuit court’s judgment are against the great weight of the testimony and are clearly erroneous.

The sole question involved under the above assignments of error is whether or not there is causal connection between claimant’s high blood pressure and the injuries sustained June 1, 1973, or, stated differently, whether or not the Commission order denying compensation benefits for such condition is supported by substantial evidence.

Claimant was employed as a truck driver by Prassell Enterprises, Inc., and, on June 1, 1973, while binding down a load of lumber, the binders pulled loose and struck him on the right cheek, resulting in a fracture of the right zygoma. He was treated at Hinds General Hospital until June 6, 1973, by Dr. Martin Harthcock, a plastic surgeon. Claimant returned to work for Prassell on July 16, 1973, and was driving a loaded lumber truck through Meridian when he blacked out at the steering wheel, causing the truck to run down an embankment into a ditch. He was seen by Dr. Salvador at Matty Hersee Hospital. The medical examination was normal, there were no external injuries, and there was no evidence of high blood pressure or hypertension.

Dr. Martin Schiefer examined claimant on July 24, 1973. His blood pressure was elevated, but neurologically, the examination was normal. Dr. Schiefer saw him again on July 30, 1973, and requested his medical records from Hinds General Hospital. On that day, his blood pressure was still elevated and Dr. Schiefer said it apparently resulted from having been struck in the head. The doctor saw claimant at intervals in August and September, 1973, during which time his blood pressure was elevated. On cross-examination, Dr. Schiefer testified he was not relating the elevated blood pressure to the incident of June 1, 1973. He further testified that Dr. Harth-cock would be in a better position to render an opinion relative to the diagnosis and prognosis of Holloway as of June 1, 1973, and that based upon reasonable medical probability it would be impossible for him (Dr. Schiefer) to relate the treatment he rendered claimant either to the June 1,1973 accident or the July 17, 1973 accident. It was his opinion that claimant reached maximum medical recovery on September 12, 1973.

Dr. Robert P. Henderson, a radiologist, testified concerning X-rays. He did not discuss the high blood pressure and hypertension phase of the injury.

Dr. Robert Smith, a Board certified specialist in family practice, saw claimant February 1,1974. He obtained a history of the injuries sustained June 1,1973, the episodes of sinkable attacks and high blood pressure, he examined the medical records from Hinds General Hospital and Matty Hersee Hospital, and gave claimant a diagnosis of sinkable attacks, etiology undetermined, essential hypertension or labile hypertension, probably secondary to those episodes. Claimant’s blood pressure was elevated at the time. Dr. Smith treated claimant six times in his office and last saw him October 31,1974, when the blood pressure was near normal. He gave no direct causal connection between claimant’s high blood pressure and the June 1,1973 injury on direct examination, but on cross-examination, he said, “I disagree with Dr. Harthcock's statement that any hypertensive state in Mr. Holloway was not related to the incident of June 1,1973.” He further stated that his opinion was based on the hospital records from Hinds General Hospital and Matty Hersee Hospital and, to some extent, on the opinions of other physicians. On July 11, 1974, Dr. Smith signed a statement to the effect that claimant’s condition was not due to injury or sickness arising out of his employment, but he testified that the statement was erroneously checked by his (Dr. Smith’s) secretary.

Dr. Harthcock, the admitting doctor when claimant was injured on June 1,1973, testified that claimant sustained no permanent injury as a result of the June 1, 1973 injury, that when claimant was discharged from the hospital his blood pressure was normal (130/90) and that, in his opinion, any elevation in blood pressure which claimant had, was not related to the blow or injury which he received on June 1, 1973. He pointed out that there was no brain damage or loss of consciousness, and that “it takes a lot of shock, head trauma to cause changes in blood pressure.”

Lay testimony indicated that claimant had no known high blood pressure or hypertension prior to June 1, 1973, and that he had worked for the employer during a period of six (6) years previous to the injury without any such complaints.

The factual situation here is different from Avery Company v. Hall, 224 Miss. 51, 79 So.2d 453 (1955), where claimant had a history of preexisting hypertensive cardiovascular disease with resultant high blood pressure and while working suffered a hypertensive encephalopathy (black out) resulting in severe damage to his vascular and cardiac system. It likewise may be distinguished from Cowart v. Pearl River Tung Company, 218 Miss. 472, 67 So.2d 356 (1953), where the claimant had a preexisting high blood pressure condition, and, upon bending over to pick up tung nuts, sustained a cerebral hemorrhage as a result of that condition. Also, the facts are different from those in Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351 (1959), where the claimant was known to have a preexisting heart condition, sustained chest pains while working on the job, immediately went to his doctor’s office and the doctor found that he was in the midst of a heart attack. Even though the evidence in each of those cases was conflicting, this Court held that the injuries were com-pensable.

No Mississippi cases involving a claim resulting from high blood pressure which occurred after the initial injury have been brought to our attention. In the present case, claimant’s injury occurred on June 1, 1973, and the onset of hypertension and high blood pressure was first discovered on July 24, 1973. The question is well settled that where an order of the Workmen’s Compensation Commission is supported by substantial evidence, such order will not be reversed. Gray v. Poloron Products Co. of Mississippi, 347 So.2d 363, handed down May 25, 1977; Universal Mfg. Co. v. Barlow, 260 So.2d 827 (Miss.1972); Harpole Bros. Construction Co. v. Parker, 253 So.2d 820 (Miss.1971); Kroger Co. v. Orr, 230 So.2d 798 (Miss.1970).

We are of the opinion that the order of the Workmen’s Compensation Commission here is not only supported by substantial evidence, but by the great weight of the evidence, consequently, the case must be and is affirmed.

AFFIRMED.

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


author: ROBERTSON, Justice,

text:
    Jim Pat TERRY v. STATE of Mississippi.
    No. 49829.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Leon E. Provine, Grenada, Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, ROBERTSON and WALKER, JJ.
   ROBERTSON, Justice,

for the Court:

Jim Pat Terry was jointly indicted, along with G. D. Thompson and Morris Talbert, in the Circuit Court of Grenada County, Mississippi, for the murder of E. W. Gant. In a separate trial, the jury found Defendant Terry guilty as charged, and the court sentenced him to life imprisonment.

There were seven assignments of error, five of which can be disposed of with the statement that this was a classic jury question on disputed facts, and there is ample evidence in the record to justify the jury’s finding that Terry was guilty beyond a reasonable doubt of the murder of E. W. Gant.

A chronology of the facts was excellently set forth in the companion case of Talbert v. State, 347 So.2d 352 (Miss.1977).

Suffice it to say that E. W. Gant, an 89-year-old country store operator in excellent health, was brutally beaten to death on Friday night, September 19, 1975. Dr. D. L. Harrison, Jr., a physician and surgeon of Grenada, Mississippi, was summoned to the emergency room of the Grenada County Hospital on Saturday morning, September 20, 1975. He personally examined Mr. Gant. Dr. Harrison testified:

“A Mr. Gant had a massive head injury. This was composed of multiple and deep lacerations of the face and scalp. He was semi-conscious at the time I saw him, and his right pupil of the right eye was dilated and fixed.
“Q Dr. Harrison, would you explain to us the significance of the right eye’s dilation and fixed state?
“A Yes, this indicated to me that Mr. Gant had a massive intercranial, or brain, injury.”

After examining xrays, Dr. Harrison had Mr. Gant removed to a Memphis hospital where he could be examined and treated by neurosurgeons. He died Sunday night, September 21, from his injuries.

His son, Edward E. Gant, testified that he saw his dead body at the National Funeral Home in Grenada after it had been returned from the Methodist Hospital in Memphis.

In his seventh assignment of error, the appellant contends that Dr. Harrison should not have been allowed to testify as to the cause of death because he was not present in the Memphis hospital when Gant passed away “nor did he sign the death certificate”.

This same question was raised in the Tal-bert case, was extensively discussed and answered adversely to the contention of the appellant. We adhere to our ruling in Tal-bert.

The only other assignment of error that merits discussion is the appellants’s contention that the court erred in allowing the confession to be introduced over the objection of the appellant. At the eviden-tiary hearing, outside the presence of the jury, investigator Bruce Patridge of the Mississippi Highway Patrol, and Deputy Sheriff Doyle Nail of Grenada County, testified as to the explanation of his rights to Terry and his signing of two waivers of his rights, which was witnessed by them. One waiver of rights was signed by Terry and witnessed by them at 1:15 P.M., September 21, 1975, and the other at 1:30 P.M., September 21,1975, just before Terry made his statement. Both officers testified that there was no force, no duress, no threats and no promises. The testimony of these two officers was uncontradicted, as the defendant offered no testimony at this preliminary hearing nor later before the jury. The two signed and witnessed waiver of rights and the signed and witnessed statement, consisting of two pages each page being signed by defendant Terry, were admitted as full exhibits. The statement says:

“I Jim P. Terry make the following statement. I had G. D. Thompsons car all day Friday September 19 and I went to the Hospital and picked G.D. up and he took me home. G. D. came back to my house about 7:00 o’clock that night and picked me up. Morris Talbert was with G.D. when he picked me up. Morris, G.D. and myself came to Grenada on Union street. We were traveling in G.D. Thompson’s black Mustang 69 or 70 model. We stayed on union street until about 7:30 p. m. then we left, drove down Car-rollton road, on the way down Carrollton road Morris said we ought to rob Mr. Gant and I said man we ought not to do that. Thompson was driving, parked the car across bridge on gravel road. This was about 8:00 o’clock P.M. We all three, got out of car walked back to store. We stood along side store for a few minutes and then Morris went inside store. After Morris had been inside about ten seconds, G. D. walked inside store and I was standing in door. When I walked to door Morris was hitting Mr. Gant with something, then Mr. Gant fell to the floor and I turned around and walked off the store porch. G. D. and Morris came out behind me then we ran back the car. We got in the car and went to the 7-11 club until about midnight, then we left, came back to Grenada and let Morris out on union street. Then G. D. and myself went home, G. D. carried me to my house, he left and I went to bed.”

After the state rested, the defense rested without putting on any witnesses.

L. D. Mitchell Sr. testified that he knew G. D. Thompson’s car, that he saw Thompson’s black Mustang parked about the length of two football fields from Gant’s store about 7:45 p. m. on September 19,1975. He drove back by the place where Thompson’s car was parked about 8:55 p. m., and the car was not there.

The jury being amply justified from the record in this case in finding Jim Pat Terry “guilty as charged” beyond a reasonable doubt, the conviction and sentence are affirmed.

AFFIRMED.

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


author: SMITH, Justice,

text:
    George M. BATCHELOR et al., v. Estate of Robert Burney POWERS, Deceased.
    No. 49520.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Edward L. Cates, Jackson, Everette Ver-hine, Vicksburg, for appellants.
    Dabney & Dabney, Lucius B. Dabney, Jr., Wesley R. Lominick, Jr., Vicksburg, for ap-pellee.
    Before PATTERSON, SMITH and LEE, JJ.
   SMITH, Justice,

for the Court:

Letters of administration were granted to Alice Powers Smith, upon the estate of her brother, Robert Burney Powers, deceased, by the Chancery Court of Warren County. Several months afterward, a document, purporting to be the last will and testament of Robert Burney Powers was offered for probate by appellants, George M. Batchelor and others. This document was entirely typewritten, signed by Robert Burney Powers and bore the certificate of a notary public that it had been “sworn to and subscribed before me” followed by the signature and seal of the notary.

The validity of the document as a will was challenged by the administratrix upon the ground that it was neither wholly written and subscribed by the testator nor attested by two or more credible witnesses in the presence of the testator as required by Mississippi Code Annotated section 91-5-1 (1972).

The chancery court declined to admit the document to probate as the will of Powers and this appeal resulted.

The single question presented is whether a document purporting to be a will and not wholly written and subscribed by the testator must be signed by two attesting witnesses. It is undisputed in this case that the document proffered was neither wholly written and subscribed by the alleged testator nor signed by two attesting witnesses. It is argued that the term “attesting witnesses” as used in the Mississippi statute does not contemplate nor require that such witnesses sign the will. It appears from a review of the numerous cases in Mississippi dealing with will contests over the years that this Court has used interchangeably the terms “attesting” witness and “subscribing” witness. Moreover, the word “attest” is defined in Webster’s New International Dictionary (2d ed. 1950) as (1) to bear witness to; to certify; to affirm to be true or genuine; specif., to witness and authenticate by signing as a witness. The word “attestation” is defined as the formal authentication of an act or instrument by a subscribing witness or an official.

Ballentine’s Law Dictionary (2d ed. 1948) gives the following definitions of the term “attest”:

Attestation. The act of witnessing the actual execution of a paper and signing one’s name as a witness to that fact. See note to Manufacturers’ Finance Co. v. Amazon Cotton Mills Co., 29 A.L.R. 944.
Attesting witness. A person who signs his name on a document as a witness to the act of another in affixing his signature to the document. See Jenkins v. Dawes, 115 Mass. 599, 600.

Moreover, it appears to be the general rule although there is some authority to the contrary, that the word “attestation” includes not only the mental act of observation, but also the manual one of subscription.

Attested. The usual meaning of the word includes not only the mere mental act of the witness in observing the execution of the instrument, but also his manual subscription of his name as a witness thereto. See 57 Am.Jur. Wills, § 273.

The view entertained by this Court in regard to this matter is reflected in Seab v. Seab, 203 So.2d 478 (Miss.1967), a case in which the Court dealt with an instrument purporting to be the will of Howard A. Seab. The Court stated:

F. E. Seab and J. D. Seab on May 22, 1948, executed an instrument purporting to be their last will and testament. . This instrument was not witnessed by two subscribing witnesses as required by Mississippi Code 1942 Annotated section 657 (1956), and could not be and was not wholly in the handwriting of each; neither was it wholly in the handwriting of either. It was acknowledged before a member of the Board of Supervisors, filed for record and recorded in the will books of Franklin County, Mississippi. The said will was invalid as not executed in accordance with the laws of our state, and the chancellor properly so held. (203 So.2d at 479).

A statement of the simple but effective requirement is stated in Fatheree v. Lawrence, 33 Misc. 585 (1857), a case cited by appellants as follows:

It is sufficient, if it appear that they signed their names as witnesses to its execution, and that they be able to state, when called to prove the will, that the requisites of the statute were observed. (33 Miss, at 624).

The history of will contests in Mississippi supports the view that the requirements that there be two attesting witnesses to a will and, moreover, that it be attested by them in the presence of the testator, and that such attestation be evidenced by the affixation of their signatures to the document, are indispensable safeguards of the integrity of testamentary documents.

The question is discussed in 79 Am.Jur .2d Wills section 313 (1975):

The meaning of the word “attested” would seem to include not only the mental act of observation, but also the manual one of subscription, and many statutes expressly provide that attesting witnesses must subscribe the instrument. Under a statutory provision requiring a will to be “witnessed” by two competent witnesses, the cases are also uniformly to the effect that such witnesses must be subscribing witnesses. The Uniform Probate Code requires a will to be signed by the witnesses. The courts, in construing statutes which formerly required that the witnesses to a will attest and subscribe it but which, through legislative amendment, have been reworded so as to require only that the witnesses “attest” the will or that they “witness” such will, have consistently held that such statutory changes did not have the effect of dispensing with the requirement that the witness “subscribe” the will. The purpose of such requirement is to identify the paper on which the signature of the testator has previously been made and attested.
Where an attesting witness to a will must be a subscribing witness, proof by one who was present and witnessed the execution of the will but did not sign as an attesting witness is not proof by an attesting witness. A mere acknowledgment of a previous signature by a witness is not a sufficient attestation; at least, it may not be equivalent to a signing in the presence of the testator, or of a signing by the witness after the testator has signed.

The chancery court correctly denied probate to the instrument offered in this case which was neither wholly written and subscribed by the testator nor attested by two witnesses in the presence of the testator.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    MEDICOM, INC., et al. v. SHELBY COUNTY HOSPITAL BOARD, a corporation.
    SC 2137.
    Supreme Court of Alabama.
    June 24, 1977.
    Rehearing Denied Aug. 26, 1977.
    John W. Cooper, for Cooper & Huey, William W. Smith, for Hogan, Smith & Als-paugh, Birmingham, for appellant.
    Frank Ellis, Jr. and Conrad M. Fowler, Jr., Columbiana, for appellee.
   MADDOX, Justice.

Appellee, Shelby County Hospital Board, filed a complaint for declaratory judgment in the Circuit Court of Shelby County against appellant, Medicom, Inc., and Cardiovascular Associates, a professional association, seeking a declaration as to the rights and interests of the parties relating to a service agreement executed between the hospital and Medicom on May 21, 1973, and the enforceability of a subsequent agreement between the hospital and Cardiovascular Associates. This complaint was filed on September 25, 1975; however, counsel for the hospital asked the clerk of the Circuit Court of Shelby County to “hold service” as the parties were working toward settlement. No service was attempted until January 7, 1976.

On December 18, 1975, appellant, Medi-com, filed a breach of contract action in the Circuit Court of Jefferson County against the hospital (plaintiff in the Shelby County suit) and Cardiovascular Associates. Medi-com filed a motion to dismiss in the Shelby County action on February 27, 1976, and an amendment to dismiss on March 1, 1976. Both motions were overruled.

The hospital, on January 7, 1976, filed a motion to dismiss Medicom’s complaint in the Circuit Court of Jefferson County. It was overruled.

Subsequently, the hospital amended its Shelby County action and asked the Circuit Court of Shelby County to enjoin Medicom from further prosecuting the Jefferson County action. The circuit court in Shelby County granted the injunction.

ISSUES

1. Whether the circuit court in Shelby County erred in its order by enjoining Medi-com, and the other parties litigant from any further proceedings in the action now pending in the circuit court of Jefferson County.

2. Whether service of process in the Shelby County action was illegally withheld contrary to Rule 4(a)(1) ARCP, and, if so, should the Shelby County action be dismissed for want of prosecution pursuant to Rule 41(b) ARCP.

APPELLANTS’ ARGUMENT

Medicom concedes in brief that it has been unable to find an Alabama case in support of the specific questions it raises on appeal. However, it relies on Jefferson v. Stockholders Pub. Co., 194 F.2d 281 (CA 9, 1952) for the proposition that service under both the federal and Alabama rules should be instituted forthwith so as not to cause prejudice to the defending party.

Medicom claims that the hospital is at fault and should suffer the consequences since service was not perfected. It submits that the Shelby County action should be dismissed and that the hospital, if it desires, can file a cross-bill in the pending case in Jefferson County.

The hospital counters that its civil action should not be dismissed because the Circuit Court of Shelby County has prior jurisdiction and any delay in effecting service upon Medicom did not cause it any substantial or material prejudice. The hospital submits that the cause of action between the parties first commenced in the circuit court of Shelby County, because “a civil action is commenced by filing a complaint with the court.” Rule 3, ARCP.

We agree with the hospital that its Shelby County suit should not be dismissed. The action was commenced when the bill of complaint was filed. That court, having acquired jurisdiction, was not divested of jurisdiction because another action was filed in another county before service of process was had. It had the right to retain jurisdiction to the exclusion of all other state courts having concurrent jurisdiction.

AFFIRMED.

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


author: ALMON, Justice.

text:
    In the Matter of Lucas McCAIN, a child under eighteen years of age. Ex parte the DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama.
    SC 2682.
    Supreme Court of Alabama.
    July 27, 1977.

      William J. Baxley, Atty. Gen., and Mary Lee Stapp, Jamie L. Pettigrew and Clyde P. McLendon, Asst. Attys. Gen., for petitioner.
    J. Doyle Fuller, John L. Carroll, Morris S. Dees, Jr., Montgomery, for respondent and cross-petitioner.
   ALMON, Justice.

Petitioner, the Department of Pensions and Security of the State of Alabama, filed a petition for writ of mandamus to require Circuit Judge John W. Davis, Family Court of Montgomery County, Alabama, Juvenile Division, to set aside his order of June 28, 1977, in Case No. JU-0740-DP, styled In the Matter of Lucas McCain, a child under eighteen years of age.

On July 8, 1977, after argument by petitioner and by counsel for Lucas McCain on behalf of Judge Davis, this court stayed the order of Judge Davis pending answer and briefs.

Judge Davis’s order of June 28, 1977, declared Lucas McCain to be a ward of the court, that a hearing on the merits shall be held August 1, 1977, and that

“There be assessed as court costs in this case, to be paid by the State Department of Mental Health and the State Department of Pensions and Securities, each an agency of the State of Alabama, the sum of $3,500.00, said sum to be expended as shall be necessary and proper for the full and continuing care of Lucas McCain at the Peachtree-Parkwood Mental Health Center and Hospitals, Atlanta, Georgia, through August 1, 1977, or until the termination of the above styled case on the merits on August 2, 1977, whichever is latter. Said sum shall be paid pursuant to Act No. 763 (Regular Session 1976) Section IV, A(12) as court costs taxed against an agency of the State.”

Petitioner contends that Judge Davis is without authority to order the State Department of Mental Health and/or the State Department of Pensions and Securities to pay funds from Act No. 763. Act No. 763 is a general appropriation act:

“There is hereby appropriated for the ordinary expenses of the executive, legislative, and judicial departments of the State, for other functions of government for the interest on the public debt, and for the public schools for the fiscal year ending September 30,1977, to be paid out of any monies hereinafter specified, from such other funds and accounts as may be designated, or so much thereof as may be necessary, and the total amount to be expended for the items for which the appropriation is herein made shall not exceed the amount provided therefor.
“IV. OTHER FUNCTIONS OF GOVERNMENT:
“A. OTHER FUNCTIONS OF GOVERNMENT TO BE FUNDED FROM THE GENERAL FUND:
“(12) COURT COSTS .$250,000.00
(To be paid by the State of Alabama not otherwise provided for)

Respondents point to Article 5, Juvenile Proceedings, of Tit. 13A, Code of Alabama 1940 (1975 Interim Supplement) and more specifically Tit. 13A, §§ 5-131(a)(5), and 5-136. § 5-131(a)(5) authorizes the juvenile court in the case of a dependent child to “[mjake such other order as the court in its discretion shall deem to be for the welfare and best interests of the child.” § 5-136 provides that the court may cause examination of a child believed to be mentally ill.

“ . . . Upon examination, if it appears that the child is in need of surgery, medical treatment or care, hospital care, or dental care, the court may cause the child to be treated by a competent physician, surgeon or dentist or placed in a public hospital or other institution for training or care or in an approved private home, hospital or institution, which will receive it for like purposes. The expense of such treatment shall be a valid charge against the county unless otherwise provided for. The court may grant authority to order emergency medical care to any such person, agency or department charged with the detention, temporary shelter care or other care of a child within its jurisdiction. (1975, No. 1205, § 5-136, appvd. Oct. 10, 1975.)” (Emphasis added.)

§ 5-139(a) of Tit. 13A clarifies the phrase, “unless otherwise provided for:”

“All expenses necessary or appropriate to the carrying out of the purposes and intent of this article and all expenses of maintenance and care of children that may be incurred by order of the court in carrying out the provisions and intent of this article (except costs paid by parents, guardian or trustee), court costs as provided by law and attorney fees shall be valid charges and preferred claims against the county and shall be paid by the county treasurer when itemized and sworn to by the creditor or other persons knowing the facts in the case, and approved by the court.” Tit. 13A, § 5-139(a) at page 219.

§ 5-139(b) provides for the parents or others legally obligated to support the child to pay for the court costs “as provided by law” and expenses incurred in caring for the child if they are financially able.

We find no authority in Tit. 13A, §§ 5-131(a)(5) or 5-136 that would enable Judge Davis to charge as court costs under Act No. 763 (Regular Session, 1976) § 2IV A(12) Lucas McCain’s stay at Peachtree-Park-wood Mental Health Center in Atlanta, Georgia. To allow this provision of Judge Davis’s order to stand would allow the unrecoverable expenditure of State funds from an appropriation not intended for child care and from which Judge Davis has no authority to direct expenditure of funds for child care. We conclude that mandamus properly lies. Ex parte Sharp, 259 Ala. 652, 68 So.2d 545 (1953); Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945).

Counsel for respondent has filed a cross petition for mandamus praying that this court order the trial judge to require the County of Montgomery to provide funds pending a hearing on the merits.

We decline to address that issue as it is not made to appear that the trial judge has declined the relief sought.

WRIT GRANTED; CROSS PETITION DENIED.

BLOODWORTH, MADDOX, FAULKNER and EMBRY, JJ., concur.


author: SHORES, Justice.

text:
    ENTERPRISE CITY BOARD OF EDUCATION v. Lonnie B. MILLER, as Adm’r. of the Estate of Leslie Ann Miller, Deceased.
    SC 2333.
    Supreme Court of Alabama.
    July 29, 1977.

      Alan C. Livingston of Lee & Mclnish, Dothan, Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellant.
    L. Andrew Hollis, Jr., of Hollis & Dowl-ing, Enterprise, for appellee.
   SHORES, Justice.

This appeal arises from an action for wrongful death of a 6-year-old child who was struck and killed by a school bus owned and operated by the Enterprise City Board of Education. The Board filed a motion for summary judgment claiming immunity from suit. The trial court denied the motion but certified its interlocutory order to allow this appeal pursuant to ARAP 5.

The sole issue presented is whether city boards of education are subject to suit in tort actions after this court’s decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), as the plaintiff contends, or whether they are immune from such suits as county boards of education were held to be in Sims v. Etowah County Board of Education, Ala., 337 So.2d 1310 (1976).

Jackson was based upon this court’s construction of Title 37, §§ 502-504. We held there that the legislature had removed the common law immunity as to municipalities and that the court had erroneously interpreted those legislative acts.

It is quite clear that Jackson and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), are based upon legislative interpretation. The court recognized in both of these cases, and in subsequent ones, that the legislature is the appropriate body to make policy in the field of governmental immunity; and, unless contrary to the constitution, it is our function to uphold the legislative will in areas appropriate for its action. The holding in Sims, supra, that a county board of education was immune to suits in tort because of the absence of statutory authorization for such suits, was based upon recognition of the legislature’s prerogative in this field.

City boards of education are authorized by the legislature. Title 52, § 148, et seq.

Like county school boards, they are agencies of the state, empowered to administer public education within the cities. As such, a city school board is not a subdivision or agency of the municipal government. Opinion of the Justices, 276 Ala. 239, 160 So.2d 648 (1964). A city school board’s relation to the city is analogous to a county school board’s relation to the county. State v. Brandon, 244 Ala. 62, 12 So.2d 319 (1943).

There is no mention in the statutes under which city school boards are created of the ability to be sued. Title 52, § 168, allows a city school board to institute condemnation proceedings. The only other statute which refers to litigation at all is Title 52, § 161, which provides:

“The city board of education shall have the full and exclusive rights within the revenue appropriated for such purposes, or accruing to the use of the public schools, to purchase real estate, furniture, appropriated libraries, fuel and supplies for the use of the schools, and to sell the same, and to make expenditures for the maintenance and repairs of the school grounds, buildings and other property, to establish and build new schools, to superintend the erection thereof, to purchase sites therefor, to make additions, alterations and repairs to the building and other property erected for school uses, and to make necessary and proper notes, contracts and agreements in relation to such matters. All such contracts shall inure to the benefit of the public schools, and any suit in law or equity brought upon them and for the recovery and protection of money and property belonging to and used by the public schools, or for damages, shall be brought by and in the name of the city.”

It is clear, therefore, that there is no express language in the legislation which would allow a tort action against a city school board. Neither is there language from which legislative intent to allow such actions may be inferred. To the contrary, the legislation seems clearly to deny such suits.

The holding here is not a departure from Jackson v. City of Florence. That decision simply has no application to a city school board because they are not agencies of the municipality.

REVERSED AND REMANDED.

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


text:
    Ex parte Calvin EVANS.
    SC 2247.
    Supreme Court of Alabama.
    Aug. 12, 1977.
   ALMON, Justice.

WRIT DENIED.

ALL THE JUSTICES CONCUR EXCEPT SHORES, J., NOT SITTING.