author: ALMON, Justice. MADDOX, Justice

text:
    The MEAD CORPORATION, a corporation, et al. v. The CITY OF BIRMINGHAM, a Municipal Corporation, et al.
    SC 2350, 2392.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Norman K. Brown, Bessemer, for appellant, the Mead Corp.
    J. Fred Powell and- William F. Murray, Jr., Birmingham, for appellant United States Steel Corp.

      James L. North, Frank M. Young, III, and Philip W. Norwood, Birmingham, for appellee.
    Kenneth Perrine, Birmingham, for Mason Corporation, et al., amicus curiae.
   ALMON, Justice.

Appellants initiated this suit challenging the validity of the City of Birmingham’s annexation of territory lying within the Oxmoor Valley section of southwestern Jefferson County. The trial court held the annexation valid. We reverse.

This annexation has been the subject of protracted litigation for over two years. It has been before this court in the past on collateral issues and from the posture of the issues before us now, it appears that its end will again be prolonged until a later date.

The City of Birmingham began the Oxm-oor annexation on February 4, 1975, when the City Council adopted a resolution of annexation. On February 5,1975, the may- or approved the annexation resolution and on February 7, 1975, filed a copy with the Judge of Probate of Jefferson County. On the same day, the judge of Probate ordered an election to be held on March 8, 1975, by the qualified electors residing within the Oxmoor area. As prescribed by statute, the election notice was published in The Birmingham Post-Herald, a newspaper of general circulation in Jefferson County, once a week for three consecutive weeks prior to the election.

On February 10, 1975, the City of Home-wood adopted an ordinance annexing certain property owned by W. T. Mayfield, Jr., Mary Clyde Mayfield, W. C. Renneker, Anne M. Renneker, and the Mason Corporation, which territory lay within the same area proposed to be annexed by the City of Birmingham in the Oxmoor Valley. On February 12, 1975, the City of Birmingham filed an action contesting the legality of the Homewood annexation and seeking a temporary restraining order against the City of Homewood. The Mayfields, the Rennekers, and the Mason Corporation intervened and they and the City of Homewood challenged the validity of the Birmingham annexation. This suit is still pending in the Circuit Court of Jefferson County.

The present action was brought by the Mead Corporation on February 17, 1975, against the City of Birmingham, contesting the legality of Birmingham’s proposed annexation. United States Steel Corporation later intervened as a plaintiff. The appellants successfully sought a temporary restraining order against the March 8, 1975, annexation election. On March 5, 1975, by an order of this court styled Ex parte City of Birmingham: Petition to Stay or Set aside Temporary Restraining Order, S.C. 1158, this court stayed the temporary restraining order and ordered the Judge of Probate to proceed with the annexation election. In the March 8,1975, election the voters in the Oxmoor annexation area chose to come into the City of Birmingham.

The appellants contend the Birmingham annexation is invalid for several reasons. These include challenges to the sufficiency of the election notice, sufficiency of the legal description, improper filing of a map of the area annexed, and the contention that part of the area annexed was already part of the City of Homewood, annexed pursuant to their order of February 10, 1975. The trial court ruled in Birmingham’s favor on all grounds.

The appellants further contend the City of Homewood and various persons are indispensable parties within Rule 19, ARCP, requiring reversal of the trial court for failure to join these parties.

It is a general rule of law, and a long standing one in this State, that the absence of an indispensable party can be raised for the first time on appeal by the parties or by the appellate court on its own motion. Davis v. Burnette, 341 So.2d 118 (Ala.1976); Matthews v. Matthews, 247 Ala. 472, 25 So.2d 259 (1946); Amann v. Burke, 237 Ala. 380, 186 So. 769 (1939); 3A Moore’s Federal Practice, § 19.05[2],

Appellants contend the failure to join the City of Homewood, the Mayfields, the Ren-nekers, and the Mason Corporation — all parties to the Homewood-Birmingham suit — will result in potentially divergent results between this suit and the Homewood-Birmingham suit causing inconsistent obligations on the part of the landowners in the twice annexed area. Appellants hypothesize that affirming the trial court’s decree upholding the Birmingham annexation would not prevent an adjudication in the Homewood-Birmingham suit that the Homewood annexation was valid. This would result in persons living in the twice annexed area being residents of the City of Birmingham and the City of Homewood simultaneously.

Appellee counters that affirming the trial court does not mandate such an inconsisten-ce because the parties to the Homewood-Birmingham litigation will be precluded from relitigating certain factual matters determined in the trial of this suit. Specifically, the trial court found the following:

“ . . . [I]t is well recognized that once a municipality has officially commenced proceedings directed toward annexing certain territory, that municipality retains full and exclusive jurisdiction over such territory until the conclusion of said proceedings. See 1 Yokley, Municipal Corporations, 56-57; 2 McQuillin, Municipal Corporations, Section 7.22a; City of Tualatin v. City of Durham [249 Or. 536], 439 P.2d 624 (Or.1968); City of Countryside v. Village of LaGrange [24 Ill.2d 163], 180 N.E.2d 488 (111.1960); City of Lincolnshire v. Highbough [Highbaugh] Realty Co., 278 S.W.2d 636 (Ky.App.1955). Here it is clear that Birmingham took the first step in passing the Annexation Resolution on February 4, 1975, several days before Homewood began its annexation efforts. This Court finds, therefore, that (a) Birmingham had and has retained exclusive jurisdiction of the Oxmoor Area for annexation purposes; (b) Homewood had no right or power to initiate any subsequent annexations in this territory; and (c) the Ox-moor Annexation was not an infringement upon Homewood’s city limits.”

The trial court’s finding of fact and decree cannot in any way be binding on the litigants to the Homewood-Birmingham suit who were not parties to this suit, nor in privity with, nor represented by any of the parties to this suit. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); IB Moore’s Federal Practice, § 0.406[2]. Thus, there exists the possibility, however improbable, that the persons living in the disputed area would be adjudged residents of two municipalities. Rule 19 of the Alabama Rules of Civil Procedure provides that:

“A person who is subject to jurisdiction of this court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action in his absence may . . . leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

Our decision is not based upon a determination that the landowners of the twice annexed area are indispensable parties. Any inconsistent obligation they might incur are derivative to the annexation claims of the City of Homewood. Homewood’s claims being primary, from which the claims of others are dependent, only the City of Homewood is an indispensable party.

A determination under Rule 19(a) that a person should be joined, in effect, is a determination that the person is an indispensable party. Rule 19(b) sets forth four factors to consider in determining whether an action should proceed in the absence of such a person. If after consideration of the factors it is determined that the court in equity and good conscience should not continue without the presence of the absent person, then the person is an indispensable party. Rule 19 ARCP. The four factors to be considered under Rule 19(b) are as follows:

1. The extent of a judgment rendered in the person’s absence might be prejudicial to him or those already parties.
2. The extent to which by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided.
3. Whether a judgment rendered in the person’s absence will be adequate.
4. Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

A judgment in favor of Birmingham in this case is inadequate because of the absence of Homewood. Not bound by the judgment in this case, Hansberry v. Lee, supra, Homewood may relitigate any matter in the Homewood-Birmingham suit— possibly resulting in conflicting results. Also, the City of Birmingham is not denied an adequate remedy by reversal for failure to join Homewood. The City of Homewood is readily subject to joinder, and once joined, this matter can be resolved on the merits.

“In spite of the simplicity of the principles, however, their application to cases in which it is essential to distinguish between necessary and indispensable parties, bears out the statement made by the Supreme Court that ‘there is no prescribed formula for determining in every case whether a person or corporation is an indispensable party or not.’ On the one hand is the desirability of preventing a multiplicity of suits, and that there might be a complete and final decree between all parties interested. Opposed to this is the desirability of having some adjudication, if at all possible, rather than none that leaves the parties remediless due to an ideal desire to have all interested persons before the court. . ” 3A, Moore’s Federal Practice, § 19.07[1], pp. 2227-2228.

By reversing this cause we do not prevent a multiplicity of suits. However, by requiring the joinder of the City of Homewood a complete and final decree between all interested parties is available without leaving any party remediless. The desirability of judicial economy must give way to the orderly administration and demands of justice.

The judgment is hereby reversed and the cause is remanded for trial with Homewood as a party to the suit. The trial judge could, in his discretion, consider consolidation of this suit with the pending Home-wood-Birmingham suit.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH and EMBRY, JJ., concur.

JONES, J., concurs in the result.

MADDOX, J., with whom FAULKNER, SHORES and BEATTY, JJ., concur, dissents.

MADDOX, Justice

(dissenting).

This case has had a long and tortuous journey, the facts of which are fully set out in the trial judge’s decree, which follows:

“JUDGMENT AND FINAL DECREE

I

Introduction

“This action was commenced by The Mead Corporation (hereinafter ‘plaintiff’ or ‘Mead’) on February 17, 1975, against The City of Birmingham, a municipal corporation (hereinafter ‘defendant’ or ‘Birmingham’) and other defendants in order to contest the legality of a proposed annexation by defendant of certain territory lying in the Oxmoor Valley section of southwestern Jefferson County (hereinafter the annexation by Birmingham is referred to as the ‘Oxmoor Annexation^ and the territory to be annexed is referred to as the ‘Oxmoor Area’). Plaintiff’s complaint, as originally filed (a) sought a temporary restraining order and preliminary injunction preventing the conduct of the Oxmoor Annexation, and (b) attacked the Oxmoor Annexation on a number of distinct grounds, certain of which grounds were later eliminated prior to trial.

“The Oxmoor Annexation was initiated by Birmingham on February 4,1975, pursuant to the provisions of Sections 137[138]-187, Article 2, Title 37, Code of Alabama of 1940 (1958 recomp, ed.), when the City Council of Birmingham adopted its Resolution No. 146-75 (hereinafter referred to as the ‘Annexation Resolution’). Under the Annexation Resolution as required by the statute, the City Council found that the ‘public health and good’ of Birmingham required that the Oxmoor Area be annexed and incorporated within Birmingham’s municipal limits.

“On February 5, 1975, the Honorable George C. Seibels, the then Mayor of Birmingham, approved the Annexation Resolution and certified a copy thereof which, on February 7, 1975, was filed with the Judge of Probate of Jefferson County and docketed in his office in the Birmingham Division as Probate Case No. 82948. On that same day, the Honorable J. Paul Meeks, Judge of Probate, made and entered an ORDER OF ELECTION directing and ordering an annexation election to be held on March 8, 1975, by qualified electors residing within the Oxmoor Area (hereinafter referred to as the ‘Annexation Election’). Later, on February 13, 1975, the Probate Judge signed a ‘Notice of Election for Annexation of Certain Territory to the City of Birmingham (hereinafter referred to as the ‘Election Notice’). As prescribed by statute, the Election Notice was published in The Birmingham-Post Herald, a newspaper of general circulation in Jefferson County, once a week for three (3) consecutive weeks prior to the Annexation Election.

“The temporary restraining order requested by plaintiff, which would have prohibited the conduct of the Annexation Election, was initially granted by Judge Harry E. Pickens of the Tenth Judicial Circuit of Alabama, Bessemer Division, and a hearing was set on the preliminary injunction for a later date. In the meantime, on February 19, 1975, United States Steel Corporation (hereinafter sometimes referred to as ‘United States Steel’ or ‘intervenor’) and others moved to intervene as plaintiffs. The motion of United States Steel for intervention was later granted.

“On February 22, 1975, Birmingham filed, with the Circuit Court sitting in the Bessemer Division, a Motion to Transfer seeking to change the venue of this cause from the Bessemer Division to the Birmingham Division. While this motion was pending, a hearing was held on February 26, 1975, in the Bessemer Division wherein Judge Pickens extended his Temporary Restraining Order pending a final determination of the issues raised by Birmingham’s Motion to Transfer. Birmingham immediately filed a notice of appeal to the Supreme Court of Alabama seeking a stay of this Temporary Restraining Order, and when this appeal was heard on March 5, 1975, the Supreme Court issued an Order (a) staying the Temporary Restraining Order, and (b) ordering the Judge of Probate to proceed with the Annexation Election, but instructing him to withhold the entry of any order of annexation until final disposition of this litigation. Thereafter, on March 8, 1975, consistent with this Order, the Annexation Election was held, and the voters within the Oxmoor Area elected overwhelmingly to come into the City of Birmingham by a vote of 60 to 1. As will be indicated hereinafter, the Court finds this overwhelming vote in favor of the Oxmoor Annexation to be highly significant.

“After the Annexation Election, Birmingham’s Motion to Transfer was overruled by Judge Pickens on April 3, 1975, and Birmingham filed a Petition for Writ of Mandamus in the Supreme Court of Alabama seeking to require Judge Pickens to transfer this cause to the Birmingham Division. After a hearing on this Petition on October 2, 1975, which, incidentally, marked the second time this litigation had come before the Supreme Court, an Order was issued transferring the cause to the Birmingham Division. See In re The Mead Corporation v. City of Birmingham, [295] Ala. [14], 321 So.2d 655 (1975). The case was then assigned to this Court, and trial was continued by agreement of the parties and with the approval of this Court until final disposition of Community Fire District v. City of Birmingham, Ala., 336 So.2d 502 (1976), another contested annexation involving the Pinson Valley area of Jefferson County. After Community Fire District, the case progressed and several pre-trial conferences were held, during the course of which plaintiff filed a Motion for Summary Judgment based on certain of the matters discussed hereinafter. The Court later overruled this motion.

“Prior to trial, Birmingham and the other defendants answered plaintiff’s complaint and the complaint of intervention denying the material allegations thereof and requesting, as affirmative relief, that the Court declare the Oxmoor Annexation valid and lawful in all respects.

“This cause came on for hearing on the 28th day of September, 1976, the date set for such hearing, and following a continuance requested by all parties thereto, said hearing was completed on the 28th day of October, 1976. All parties were represented by counsel throughout, and the case was heard, ore tenus, without a jury. During the hearing, the parties introduced certain documentary evidence, including the Probate Court file, and the Court was presented with the testimony of several witnesses. Following the hearing, the cause was submitted upon the pleadings, the testimony taken, ore tenus, and the documentary materials offered into evidence. This Court then requested and received excellent briefs from the parties, all of which have been very ably represented throughout this litigation.

II

“Findings of Fact and Conclusions of Law

“The Court has evaluated the pleadings, the testimony and documentary evidence presented at trial and has read and studied the respective briefs. At the outset, the Court notes that this case does not involve arbitrary, capricious or unreasonable conduct by Birmingham or any alleged ‘gerrymandering’ of the Oxmoor Area. Accordingly, this case does not fall within the ambit of Community Fire District, supra.

“Plaintiffs are property owners within the Oxmoor Area. At trial (and later in their trial brief), plaintiffs focused upon four (4) alleged defects or errors allegedly committed by Birmingham in connection with the Oxmoor Annexation. Since Birmingham has responded to each allegation seriatim, the issues have been clearly framed for determination.

“After analysis and evaluation of the testimony, pleadings and proof, the Court concludes that all of the alleged errors asserted by plaintiffs are, at best, minor and insignificant. None are material enough to void the Oxmoor Annexation which has been recommended by the governing body of the City of Birmingham and endorsed virtually unanimously by the registered voters in the Oxmoor Area. The Court’s conclusions with respect to each of the alleged errors which plaintiff has argued will next be specifically set forth.

A.

“Homewood’s Annexations

“As previously mentioned, Birmingham officially commenced the Oxmoor Annexation by adopting the Annexation Resolution on February 4, 1975. After Birmingham began the annexation — in what the Court considers to be basically defensive maneuvers — the City of Homewood began a series of ‘consensual’ annexations under the provisions of Section 137(1), Title 37 of the Code of Alabama of 1940 (1973 Cu.Supp.), in an effort to incorporate within its municipal boundaries certain of the territory already subject to the Annexation Election. These annexations began at a regularly scheduled Homewood City Council meeting held on February 10, 1975 [six (6) days after Birmingham officially commenced the Oxmoor Annexation], and continued for the next six (6) weeks.

“Section 152 of Title 37, Code of Alabama of 1940 (1958 recomp, ed.) provides that territory annexed under Article 2 must be ‘contiguous’ to the boundary of the annexing city and ‘not . . . within the corporate limits of another city’. Seizing upon this provision, plaintiffs argue that Birmingham’s Oxmoor Annexation is void because it embraces territory which is actually within the Homewood corporate limits. Plaintiffs’ argument is not compelling, however, since it is well recognized that once a municipality has officially commenced proceedings directed toward annexing certain territory, that municipality retains full and exclusive jurisdiction over such territory until the conclusion of said proceedings. See 1 Yokley, Municipal Corporations, 56-57; 2 McQuillin, Municipal Corporations, Section 7.22a; City of Tualatin v. City of Durham [249 Or. 536], 439 P.2d 624 (Ore.1968); City of Countryside v. Village of LaGrange, [24 Ill.2d 163], 180 N.E.2d 488 (Ill.1960); City of Lincolnshire v. Highbough [Highbaugh] Realty Co., 278 S.W.2d 636 (Ky.App.1955). Here it is clear that Birmingham took the first step in passing the Annexation Resolution on February 4, 1975, several days before Homewood began its annexation efforts. This Court finds, therefore, that (a) Birmingham had and has retained exclusive jurisdiction of the Ox-moor Area for annexation purposes; (b) Homewood had no right or power to initiate any subsequent annexations in this territory; and (c) the Oxmoor Annexation was not an infringement upon Homewood’s city limits. Plaintiffs’ contention with respect to Section 152 is without merit.

B.

“The Election Notice

“The Election Notice did not contain any express reference to Article 2, Title 37, Code of Alabama of 1940. Plaintiffs argue, as their second point, that Section 186 of Title 37, Code of Alabama of 1940 (1958 recomp, ed.) requires that the published notice expressly refer to the fact that such publication was being made under such Article, and that the failure to refer to said Article 2 was a jurisdictional defect.

“Whether Section 186 should be construed so strictly and literally as plaintiffs argue depends upon an analysis of the section and its interpretation in the statutory annexation framework. First the Court notes that the language of Section 186 is almost identical to Section 136, Article 1, Title 37, Code of Alabama of 1940 (1958 recomp. ed.). Both of such sections relate to the same subject of annexation, both were adopted at the same time, and both presumably embody the same legislative intent. Significantly, the literal approach argued so vehemently by plaintiffs here was expressly rejected by the Supreme Court of Alabama in State v. City of Birmingham, 167 Ala. 651, 52 So. 461 (1910) and Talladega v. Jackson-Tinney Lumber Co., 209 Ala. 106, 95 So. 455 (1923). There the Supreme Court held that the requirements of the predecessor statute to Section 136 were directory only and not mandatory or jurisdictional. This same reasoning should apply here since Section 186 should be interpreted in pari materia with Section 136.

“Furthermore, it must be noted that plaintiffs’ argument is not that no notice was given to the general public or to residents in the Oxmoor Area, but simply that the notice did not spell out that the election was called under Article 2. The Court fails to see how a reference to Article 2 in the Election Notice could have any real meaning to residents of the Oxmoor Area or to the general public. Plaintiffs, of course, have attempted to draw a distinction between Articles 1 and 2 on the basis of the statutory tax-exemption contained in Article 2 [see Title 37, Section 153, Code of Alabama of 1940 (1958 recomp, ed.)], which is not available under Article 1. Yet, this tax exemption exists as a matter of law as a benefit — not a detriment — to persons residing in the area to be annexed. Certainly this statutory benefit would not be a reason for mandatory mention of Article 2 in the Election Notice since failure to notify potential voters of a benefit could hurt only the annexing municipality.

“The Court finds that adequate notice was given by defendants to persons in the Oxmoor Area affected by the Annexation Election, and those persons who were interested enough to vote expressed an overwhelming desire to join Birmingham. The failure of the Election Notice to state in terms that said notice was given under the provisions of Article 2, Title 37, Code of Alabama of 1940 (1958 recomp, ed.), is not a jurisdictional or fatal flaw which would void this annexation.

C.

“The Legal Description

“Plaintiffs’ third contention is that the Oxmoor Annexation is void because of alleged inaccuracies in the legal description attached to the Annexation Resolution and later published in The Birmingham Post-Herald. This legal description is a lengthy, metes and bounds designation of approximately 25 miles of boundary line circumscribing approximately 3,570 acres of property.

“The Court has evaluated the testimony of two expert witnesses concerning this point, one called by plaintiffs, Mr. James Gay,'and one called by defendant, Professor Dan Turner, a registered engineer and land surveyor and member of the faculty of the University of Alabama in Tuscaloosa. Each witness reviewed the legal description and noted certain ambiguities, each of which was discussed in some detail.

“Substantial accuracy (not perfection) is all that is required in an annexation description. See generally State v. City of Birmingham, 167 Ala. 651, 52 So. 461 (1910). At trial Professor Turner concluded that the legal description of the Oxmoor Area was sufficient and valid and was capable of being staked and located on the ground in a survey. The Court agrees and concludes that the legal description is accurate, valid and capable of location on the ground, with closure.

“Plaintiffs also argue, in connection with this point, that the legal description is complicated and could not be understood by a layman. This is quite true since it is virtually impossible to write any legal description embracing twenty-five (25) miles of boundary over diverse and widely varying terrain, in language which would be comprehensible to a layman. However, this is not the test. The legal description of the Oxmoor Area sets forth precisely the configuration of the territory purported to be annexed by use of a metes and bounds description which can be identified and located by a land surveyor on the ground, and this description is more than adequate.

D.

“The Bessemer Division

“A portion of the Oxmoor Area lies within the Bessemer Division of Jefferson County and, although a copy of the map of the area was filed with the Judge of Probate of Jefferson County, Alabama, in the Birmingham Division, such a map was not filed in the Bessemer Division. Plaintiffs argue, as their final point, that this was jurisdiction-ally fatal. Plaintiffs’ argument here is based on the provisions of Section 142, Title 37, Code of Alabama of 1940 (1958 recomp, ed.), which provides, in part, as follows:

“ ‘The said judge [of probate] shall give notice of the holding of such election by publication in at least one newspaper . and such notice must give a description of the territory proposed to be brought within the city . . and must state that a map showing the territory proposed to be brought into the city is on file in the office of the judge of probate of said county, open to the inspection of the public.’

“Plaintiffs argue that this language means that two maps were required to be filed. The Court cannot agree. Since a map of the Oxmoor Area was filed with the Judge of Probate of Jefferson County in his office in the Birmingham Division, it was not mandatory that another map or plat be filed in the Bessemer Division as well. The legislation which created the Bessemer Division in Jefferson County did not create a separate county. See Sections 160-168, Title 12, Code of Alabama of 1940 (1958 re-comp. ed.). Clearly there is only one Judge of Probate of Jefferson County and the map showing the territory purposed to be annexed was on file in that Judge’s office in Birmingham, precisely as the statute requires. Moreover, annexations do not involve title to property or property rights in general, and the filing with the Judge of Probate is not, strictly speaking, intended to be the primary method of notice to the public under Article 2. This follows from the fact that Section 142 speaks primarily of notice by publication with a reference in the published notice that the map is on file. The Election Notice here was published for three (3) consecutive weeks in The Birmingham Post-Herald, a newspaper having general circulation throughout the entirety of Jefferson County, and the map was on file in the office of the Judge of Probate in Birmingham. Under these circumstances, the notice given by Birmingham met the requirements of Section 142.

“Moreover, there is another fatal flaw in this argument of plaintiffs. Even had the notice here given been defective, it could not conceivably have affected the outcome of the election. The testimony of plaintiffs themselves clearly shows that there were, at best, only two (2) registered voters in the Bessemer Division residing within the Ox-moor Area. In view of the overwhelming vote of 60 to 1 in favor of annexation, even assuming that the two (2) Bessemer voters did not have either actual or constructive notice of the election and that these voters would have voted in opposition to annexation, they still could not have possibly affected its outcome. To reiterate, the Court finds this overwhelming vote in favor of annexation highly significant, particularly since courts have uniformly applied an outcome determinative test to resolve minor questions of voting irregularities. See Edmonson v. Brewer, 282 Ala. 336, 211 So.2d 469 (1968); Swaim v. Tuscaloosa County, 267 Ala. 509, 103 So.2d 769 (1957); Doody v. State, 233 Ala. 287, 171 So. 504 (1936); 1 Yokley, Municipal Corporations, 55; 3 McQuillin, Municipal Corporations, Section 12.10; and 2 McQuillin, Municipal Corporations, Section 7.37.

“CONCLUSION

“None of the alleged errors raised by plaintiffs are sufficient to void the Annexation Election held on March 8,1975, nor are they otherwise substantial or material enough to invalidate the Oxmoor Annexation. The actions of Birmingham in defining the territory in question here, in drawing the boundary lines thereof, in conducting the Annexation Election, setting forth and publishing the legal description of the Oxmoor Area, and otherwise relating to the Oxmoor Annexation in general were proper, reasonable and lawful under the circumstances. It is, therefore, CONSIDERED, ORDERED, ADJUDGED and DECREED that:

“(1) Judgment be, and the same hereby is entered in favor of defendant, City of Birmingham, and the other defendants in this cause;

“(2) The annexation by the City of Birmingham of the territory embraced within Resolution No. 146-75 and made the basis of this cause be, and it hereby is, declared a valid, reasonable and lawful action of the City of Birmingham;

“(3) A copy of this order be, and the same hereby is, forwarded to the Honorable O. H. Florence, Judge of Probate of Jefferson County, who is hereby directed to enter a Final Order of Annexation incorporating, permanently, the territory made the basis of the Oxmoor Annexation within the corporate boundaries of the City of Birmingham; and

“(4) All costs of this action be, and they hereby are, taxed against plaintiff and in-tervenor, separately and severally, for which let execution issue.

“DONE and ORDERED on this the 21st day of December, 1976.

“/S/ W. C. Barber “Circuit Judge in Equity Sitting

“cc: Norman Brown, Esq.

J. Fred Powell, Esq.

William Murray, Esq.

James L. North, Esq.

Frank M. Young, III, Esq.

Philip W. Norwood, Esq.

The Honorable Orris H. Florence”

The plurality (Justice Jones concurs only in the result), reverses and remands on the ground that Homewood was an “indispensable” party. I think that Homewood clearly was not an “indispensable” party under the familiar test of Shields v. Barrow, 1854, 17 How. 130, 139, 15 L.Ed. 158, that such parties have “an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” See Delaware County v. Diebold Safe & Lock Co., 1890, 133 U.S. 473, 488, 10 S.Ct. 399, 403, 33 L.Ed. 674; Hubbard v. Manhattan Trust Co., 2 Cir., 87 F. 51; Rogers v. Penobscot Mining Co., 8 Cir., 154 F. 606; 3 Moore, Federal Practice (2d ed.) p. 2178.

Assuming Homewood had such an interest of such a nature that a final decree could not be made without affecting that interest, the question then is whether the “pleadings” reveal that interest by Home-wood.

Rule 19(c), ARCP, provides:
“A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1) — (2) hereof who are not joined, and the reasons why they are not joined.” (emphasis added).

The Supreme Court of the United States, in United States v. Aetna Casualty & Surety Co., 338 U.S. 366, at page 382, 70 S.Ct. 207, at page 216, 94 L.Ed. 171, states:

“. . . The pleadings should be made to reveal and assert the actual interest of the plaintiff, and to indicate the interests of any others in the claim.” (emphasis added).

As I interpret our present Rule 19, and our former practice, a court should note the absence of an indispensable party only when the absence is apparent on the “face of the pleadings.” In Amann v. Burke, 237 Ala. 380, 186 So. 769 (1939), which the plurality cites, it is stated:

“. . . ‘Equity takes note of a want of necessary parties apparent on the face of a bill, and refuses to proceed until such party is brought in.’ English v. Huckaba, et al., 219 Ala. 526, 122 So. 841, 842; Prout v. Hoge, 57 Ala. 28; Baisden v. City of Greenville, 215 Ala. 512, 111 So. 2; McMaken v. McMaken, 18 Ala. 576.” (emphasis added).

Lastly, even assuming the plurality opinion is correct, and that Homewood is “indispensable,” the appeal should be dismissed, and the judgment should not be reversed and remanded, because the judgment would be void, and an appeal cannot be taken from a void judgment. See the myriad of cases in 2A Ala.Dig., Appeal and Error, &wkey;782. In fact, in Amann v. Burke, supra, which is cited by the plurality, this Court stated:

“Inasmuch as the appeal is by the guardian, and the bill filed by her, upon which the final decree was entered, discloses the absence of necessary parties, the only proper decree that can be here rendered is one of dismissal of the bill. Accordingly, such an order will be entered. However, the dismissal of the bill will be without prejudice. Prout v. Hoge, 57 Ala. 28; Winsett et al. v. Winsett, 203 Ala. 373, 83 So. 117; Singo v. Brainard, 173 Ala. 64, 55 So. 603.
“Bill and cross-bill are dismissed, but without prejudice.” (emphasis added).

Consequently, even assuming the plurality is correct, and Homewood is indeed an “indispensable” party, the only proper order would be to dismiss the appeal.

      . See In re Mead Corporation v. City of Birmingham, 295 Ala. 14, 321 So.2d 655 (1975).

      . In its decree upholding the validity of the Birmingham annexation, the trial court ordered the Probate Judge of Jefferson County to enter a Final Order of Annexation. This court in SC 2883, March 1, 1977, and March 10, 1977, stayed the order of the trial court.

      . Plaintiffs original complaint attacked the Oxmoor Annexation not only on the several grounds actually asserted at trial, but also on the grounds that: (i) Birmingham acted arbitrarily, capriciously and unreasonably in the proposed annexation; (ii) the Oxmoor Area was not homogeneous; (iii) Birmingham, by ‘polling’ and direct solicitation of residents ‘gerrymandered’ the territory in an illegal and unconstitutional manner; and (iv) the statute under which Birmingham attempted the annexation was unconstitutional. By an amendment to the complaint filed shortly prior to the continuation of the trial of this action on October 28, 1976, these aspects of the case were deleted by plaintiff voluntarily, since these matters were no longer in contention.

      . The Cities of Brownsville, Lipscomb and Hoover originally sought to intervene in this cause in the Bessemer Division, but later, after the case was transferred to this Court, these inter-venors voluntarily, and by agreement, withdrew.

      . Since the positions of Mead and United States Steel as intervenor are parallel and were, in fact, presented jointly during the course of these proceedings, said parties will be hereinafter referred to jointly as ‘plaintiffs’.

      . The Court also notes that all of the annexations by Homewood under Sections 137(1) — (3), Title 37, Code of Alabama of 1940 (1973 Cum. Supp.), were, according to the uncontradicted testimony of Hobson Riley, Senior Engineer of the City of Birmingham, within three (3) miles of the city limits of the City of Birmingham, and, therefore, within Birmingham’s police jurisdiction. Accordingly, under State v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975), the court questions whether Section 137(1) would be available to Homewood to annex this territory even if Birmingham had not commenced its annexation prior to Home-wood’s efforts.

      . As indicated in 2 McQuillin, Municipal Corporations, Section 7.05, it is clear that ‘the description of corporate boundaries is not required to have the particularity ordinarily found in deeds’.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    T. C. CASEY et al. v. Robert William BECK et al.
    SC 2362.
    Supreme Court of Alabama.
    Sept. 30, 1977.

      W. N. Watson, of Watson & Watson, Fort Payne, for appellants.
    David A. Rains, of Scruggs, Rains & Wilson, Fort Payne, for appellees.
   FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of DeKalb County, upholding a 1939 order setting aside a homestead exemption. We affirm.

R. L. Beck died in 1939 with a will devising his real estate to his wife and children, share and share alike. At the time of his death, Beck was married to Annie Beck and had nine children of that marriage. Only three of these children, Clifford D. Beck, Reuben Floyd Beck and Robert William Beck, were minors at his death. Beck was also survived by three daughters of previous marriages.

Annie Beck elected against the will and on October 12, 1939, petitioned the probate court of DeKalb County to set aside homestead under Code of Ala. 1923, Vol. 3, § 7948, p. 897. In her petition, she alleged:

“1. That she is the widow of R. L. Beck who died on the 19th day of April, 1939 and that no administration has been granted on the estate. That at the time of the death of said R. L. Beck he owned certain property in DeKalb County which was a homestead consisting of 44V2 acres of land situated in Beat 10, DeKalb County, Alabama .
* * * * * *
“4. . . . and she avers that the personal property does not exceed in amount $1,000.00 and that the real estate is not worth over $2,000.00 and is not greater in area than 160 acres.”

Pursuant to the report of two appointed commissioners, the probate court determined that the real estate was all the property owned by the decedent at his death and was less in area than 160 acres and less in value than $2,000.00. The probate court set the real property aside as homestead to the widow and the three minor children in fee simple absolute. Annie Beck died without a will, and no administration has been had upon her estate.

Robert William Beck and Mary Hazel Beck brought an action for sale for division of the real estate involved in the 1939 homestead proceedings, naming as defendants the remaining heirs of R. L. Beck. The propriety of sale for division was uncontested, but the interests of the various parties in the land to be sold is disputed. As stated in the pretrial order of October 27, 1976, the plaintiff contends:

“. . that Annie Beck and the three minor children of R. L. Beck had the real estate set aside to them in fee simple absolute as homestead and that therefore the only persons who are entitled to any interest in the property are Clifford Beck, Reuben Boyd Beck and Robert William Beck, a one-fourth undivided interest each and the heirs of Annie Beck, being entitled to the remaining one-fourth undivided interest.”

The defendants argue, on the other hand, that the 1939 decree setting aside the homestead is void because of a lack of jurisdiction so that only a life estate was created. Therefore, the property passed under the will to Annie Beck and all twelve children of R. L. Beck as tenants in common.

On October 27, 1976, the court ordered the real estate sold, reserving determination of distribution of the proceeds. In the decree of December 6, the proceeds were ordered to be distributed in accordance with the plaintiff’s request, thus upholding the validity of the 1939 homestead decree. Defendants appeal from this ruling.

The issues raised on appeal are:

(1) Whether Annie Beck’s allegation in the 1939 proceeding was sufficient to negative the decedent’s ownership of other real property.
(2) Whether the failure to explicitly allege that sixty days had passed since the decedent’s death is fatal where the petition, filed on October 12, 1939, alleged the date of death as April 19, 1939, thus showing that more than sixty days had elapsed.
(3) Whether administration on the estate of R. L. Beck had been granted prior to filing the homestead petition so that the probate court was without jurisdiction to set aside homestead.

The jurisdiction of the probate court to act to set aside a homestead exemption to a widow is statutory and limited, and it must appear from the face of the proceedings that it has acted within the scope of that jurisdiction.

Omitting the necessary jurisdictional averments in the petition renders the probate court’s decree void, and subject to collateral attack. Those jurisdictional aver-ments are: First, that the real and personal property owned by the decedent at the time of his death does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children; second, that no administration was granted upon his estate within 60 days after his death; and, third, that he resided in the county in which the application is made at the time of his death. Singo v. McGehee, 160 Ala. 245, 49 So. 290 (1909). Furthermore, the petition must negative ownership of any other real estate by the decedent at the time of his death. Chamblee v. Cole, 128 Ala. 649, 30 So. 630 (1900). Walton v. Walton, 256 Ala. 236, 54 So.2d 498 (1951).

1.

Singo held that an averment that decedent “owned real and personal property” at the date of his death, “which did not exceed in amount or value the exemption allowed the widow” was sufficient to negative the ownership of any property in excess of that amount or value. See Miller v. First National Bank, 194 Ala. 477, 69 So. 916 (1915). An averment stated in similar words was approved and upheld by Miller. In Miller, this court said:

“So far as the estate of the decedent is concerned, the necessary jurisdictional averment is that the property owned by him at the time of his death ‘does not exceed in amount and value the exemption allowed in favor of his widow and minor child or children, or either.’ * *
“On the authority of Singo v. McGehee, supra, which has become a rule of property, and which we are not disposed to now overrule, we hold that the petition in the present case was sufficient for jurisdictional purposes. It is not necessary for the petition to aver that the particular property, if any, sought to be set aside, was the only property owned by the decedent at his death. The statute (section 4227) merely requires that the court shall ascertain that the property set aside was all the property left by the decedent, and that he left less property than was exempt by law, as a condition to the vesting of title absolutely.”

While the petition in this case does not specifically allege that the decedent owned no other real estate, a comparison of the facts in Singo, and a fair reading of the allegation does negative ownership of any other real property.

2.

The decree is not void because of failure to allege that more than 60 days had elapsed since the death of decedent and no administration had been granted on the estate. In other words, while the petition does not explicitly state that 60 days had elapsed since the death of the decedent, it is quite obvious on the face of the petition that more than 60 days had passed.

“Applying these well-settled principles to the instant case, we are constrained to hold that the proceedings in the probate court failed to show that said court acquired jurisdiction, and are therefore void, and must be so declared on collateral attack. The petition is silent as to the date of the death of Nora Douglass, merely giving the date of the month, but not the year. Nor does it appear in the petition that no administration had been granted on her estate . . . . The jurisdictional averment therefore that more than 60 days had elapsed since the death of deceased, and no administration had been granted on the estate, is lacking in these proceedings, and they must be declared invalid.” (Emphasis added.) Bryant v. Perryman, 213 Ala. 561, 562, 105 So. 561, 562 (1925).

In this case both the date of the decedent’s death and the date of filing appear on the face of the petition, making it clear that more than 60 days had passed since the decedent’s death. This allegation is sufficient.

3.

Appellants also argue that the probate court was without jurisdiction to render the 1939 decree because an administration had in fact been granted before the homestead petition was filed.

As this court has held,
“The probate court has no jurisdiction to set apart a homestead under the provisions of said section when letters of administration have been granted upon an estate, and, if it does so, its decree is coram non judice and void.” Hynes v. Underwood, 191 Ala. 90, 92, 67 So. 994, 995 (1915).

Evans v. Evans, 213 Ala. 265, 104 So. 515 (1925).

While the record contains a form order granting letters testamentary, dated July 15, 1939, the signature of the judge of probate is missing. The trial court additionally heard testimony on whether the letters had been granted, and decided that letters testamentary had not been granted.

Where the trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed on appeal unless palpably wrong. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965). Hynes v. Underwood does not apply in this case.

We hold that the probate court had jurisdiction to set aside the homestead in 1939. The Circuit Court decree dated December 6, 1976 is affirmed.

AFFIRMED.

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

      . “7948. Setting apart homestead exemptions before administration; inventory and appraisement. — When the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow and minor child or children, or either, and no administration is granted on his estate within sixty days after his death, the probate court of the county in which he resided at the time of his death, upon the application of the widow, or if there be no widow, or she does not act, upon the application of a suitable person who shall be appointed by the judge of probate as the next friend of such minor child or children, verified by oath and setting forth such facts, as well as the names, condition, and residence, if known, of the heirs of the decedent, other than the minor children of the decedent, must appoint two commissioners who shall make a full and complete inventory and appraisement of the real and personal property of such decedent, describing the property and stating the value of each item or parcel thereof; and in estimating the value of such property, or any part thereof, if the same be held in pledge or under mortgage or other lien or incumbrance created prior to the death of the decedent, such encumbered property must be valued at only the excess of its value over and above the sum of such liens or other incumbrances.”

      . Mary Hazel Beck was stricken as a party on the ground that she is a spouse of one of the heirs.


author: MADDOX, Justice. FAULKNER, Justice

text:
    Sheila O. JOHNSON v. George Eugene BRYANT et al.
    SC 2421.
    Supreme Court of Alabama.
    Sept. 30, 1977.

      Thomas B. Norton, Jr., Bay Minette, for appellant.
    John Earle Chason and Allan R. Chason, Bay Minette, for appellees.
   MADDOX, Justice.

The trial court permanently enjoined the defendant from building a boathouse and extension of her existing pier on the ground that the proposed construction would create a nuisance and a prospective breach of a restrictive covenant.

The parties are owners of adjacent lots in Terry Cove Subdivision, a beachfront residential subdivision in Baldwin County. Defendant, Sheila Johnson, owns lot 17; plaintiffs, Earl Joyner and George Bryant, own lots 16 and 18 respectively. Prior to the present controversy, the defendant maintained a “T" shaped pier, which extended approximately 64 feet from the shoreline. Four “tieoff” pilings ran parallel to and about 43 feet from the end of her existing pier. Several of the other plaintiffs also maintained piers. Plaintiff Bryant’s pier extended about 72 feet from the shoreline.

The water in Terry Cove is generally shallow. A channel about 20 feet deep and between 100 and 125 feet wide, was dredged some 70 to 75 feet from the shoreline to accommodate boats. The channel generally meanders parallel to the existing shoreline.

The event which led to the instant suit occurred when defendant Johnson got a permit from the Army Corps of Engineers to construct a covered boathouse and extension to her existing pier. The proposed boathouse was to be built on the eastern end of the pier along with a ten foot extension so as to accommodate a bathroom facility adjacent to the boathouse. There is some evidence that county health authorities and the Alabama Water Improvement Commission required adequate sanitation facilities to be placed on the site.

Plaintiffs adduced much evidence to support their complaint that the proposed construction would create a nuisance. One factor relied on by the plaintiffs was that the structure would extend some 34 to 43 feet into the navigable channel, thus making navigation and recreational activities more difficult. Plaintiffs further showed that the size of the boat owned by the defendant — a 47-foot houseboat — and the boats of numerous friends who were frequently docked at the defendant’s pier in similarly large craft, increased the danger. They also introduced evidence to show that the presence of the large craft created a sanitation risk, and they claimed that sewage would be deposited by the craft at the docks.

Plaintiffs also introduced evidence to show a breach of the restrictive covenant created by the predecessor in title to each of the lots in question. That covenant, in pertinent part, stated:

“[N]othing but a single private dwelling or residence of not less than 900 sq. ft. living area designed for occupancy of families shall be erected on any lot in these units of said subdivision. . . . ”

No residence had been built on the defendant’s lot and the plaintiffs allege that the boathouse would serve only as a residence for the defendant. Plaintiffs claimed that the defendant would sleep upon her boat for four or five days at a time.

Lastly, the plaintiffs claimed the defendant was using her pier for a commercial venture. In support of this contention, the plaintiffs’ witnesses testified that as many as 10 to 15 cars would be parked at the defendant’s lot on occasions. Also, the plaintiffs showed that the defendant’s boat was licensed to carry commercial passengers, that several of the boats which visited the defendant’s dock were commercial fishing vessels, and that the defendant’s husband was a commercial fisherman.

The defendant rebutted the plaintiffs’ contentions, primarily relying on the fact that the Corps of Engineers had approved the proposed construction. The defendant also stated that a septic tank had been completed and that the four pilings extending some 43 feet from the end of her dock had been there since 1974. Defendant admitted that on occasion numerous friends had visited the lot, but the defendant stated that no commercial passenger had ever boarded from her pier and that she has never taken any commercial passengers on her boat.

I

The first issue presented is whether the proposed construction of the boathouse would constitute a nuisance.

Title 7, § 1081, Code of Alabama, 1940 (Recomp.1958), defines a nuisance as:

“[A]nything that worketh hurt, inconvenience, or damage to another, and the fact that the act done may otherwise be harmful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.”
Title 7, § 1083, Code, states:
“Where the consequences of a nuisance about to be erected or commenced will be irreparable in damages, and such consequences are not merely possible, but to a reasonable degree certain, a court of equity may interfere to arrest a nuisance before it is completed.”

While the finding of the trial judge that a nuisance existed and that the proposed structure was a prospective breach of the restrictive covenant carries great weight [Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967)], we are of the opinion, after reviewing the evidence, that the trial judge erroneously enjoined the construction of the proposed boathouse and pier.

It is undisputed that the defendant had a permit from the Army Corps of Engineers “to construct a 4 X 10' addition to eastern end of an existing permitted (SAMOP-S-75-235VL) pier and construct one (1) covered boathouse 20' wide X 53' long X 25' high above mean low water adjacent and parallel to existing pier for houseboat mooring. Place one (1) additional piling 10"-12" diameter in line with existing piling. Also install two (2) 10"-12'' piling 20 feet landward of the east end of existing pier on 10 foot centers to be used to support a 10' wide X 20' long X 8' high shed constructed two feet above existing pier elevation to accommodate sanitary restroom facilities adjoining boathouse. All sanitary facilities will be constructed in accordance with current regulations provided by the Baldwin County and/or Alabama State Board of Health in Terry Cove off Perdido Bay at Baldwin County, Alabama.” The special conditions of the permit were:

“a. Any vessel mooring to the permitted facility must meet all U. S. Coast Guard Marine Sanitation Regulations.
“b. If any discharge of treated domestic waste is involved from Permittee’s watercraft, Permittee’s facilities must meet the requirements of Alabama’s Marine Sanitation law and any regulations adopted pursuant to that statute.
“c. Septic tank shall be installed in accordance with current regulations of the Baldwin County Health Department prior to mooring of vessels not in compliance with special conditions a and b above.”

It appears that the defendant has a statutory right to build a “dock” and “shed,” if authorized by federal and state authorities. Title 38 § 119, provides:

“Right of riparian owners to build wharves, docks, etc. — The owner of riparian lands upon navigable waters in the state of Alabama may install in front of their respective riparian lands, wharves, docks, warehouses, sheds, tipples, chutes, elevators, conveyors and the like for receiving, discharging, storing, protecting, transferring, loading and unloading freight and commodities of commerce to and from vessels and carriers, and may use their riparian lands in connection therewith and dredge out and deepen the approaches thereto, any may charge and collect reasonable tolls for the use thereof. All such structures are to be subject to such lines and limitations as may at the time of making such improvements be laid or placed by any authority of the United States, or of the state of Alabama, who may have authority to control harbor and pier lines.” (emphasis added).

The question becomes whether the doing properly of that which the law authorizes can constitute a nuisance.

This Court has held that “there can be no abatable nuisance for doing in a proper manner what is authorized by law.” Fricke v. City of Guntersville, 251 Ala. 63, 36 So.2d 321 (1948). In Rigsby v. Burton, 293 Ala. 459, 305 So.2d 366 (1974), this Court held that where a city zoning ordinance permitted a funeral home to be located in an area not zoned exclusively residential, and in the absence of evidence that the operation would constitute a nuisance, the trial court’s restraining the use of the property as a funeral home was improper.

We think injunctive relief was improper here for at least one additional reason: Injunctive relief against nuisances should be cautiously given. See St. James’ Church v. Arrington, 36 Ala. 546 (1860) (a private stable, near a church, is not necessarily a nuisance). This Court held:

“It is a general rule that an injunction will be denied in advance of the creation of an alleged nuisance, when the act complained of may or may not become a nuisance, according to circumstances, or when the injury apprehended is doubtful, contingent or merely problematical. . Mere fear that it will result in injury to him is insufficient.” Brammer, et al. v. Housing Authority of Birmingham Dist., et al., 239 Ala. 280, 195 So. 256, 259 (1939).”

The trial judge’s finding that the proposed construction constitutes a nuisance for which an injunction would lie is overbroad and is not supported by the evidence.

In reaching the result we do, we have balanced interests in the instant case and find that the construction of a boathouse as authorized by the permit from the Corps of Engineers does not constitute a nuisance per se. See Daniels v. Chapuis, 344 So.2d 500 (Ala.1977).

It is undisputed that the Corps of Engineers was aware of plaintiff Bryant’s objection to the issuance of the permit. The Corps wrote him on 29 June 1976:

“Reference is made to your letter dated 8 April 1976 objecting to the application by Mrs. Sheila O. Johnson for a Department of the Army permit to construct a boathouse and mooring pilings in Terry Cove, Baldwin County, Alabama, as advertised by our Public Notices Nos. 1-76-1-F and 1-76-1-R-F.
“Copies of the original and revised public notices were coordinated with all responsible Federal, State and local agencies. Also, an on-site inspection was made by representatives of this office which interposed no objection to the revised proposed project.
“Because of the possible adverse water quality considerations associated with the project, the Alabama Water Improvement Commission (AWIC) was requested to review the revised public notice which represented a reduced project from that originally proposed. AWIC issued water certification with conditions that the applicant agree to the revised project. Subsequently the applicant has applied for a permit from the Baldwin County Health Department to install a septic tank for disposal of any sanitary waste.
“The authority granted by a Corps of Engineers Section 10 permit neither conveys a property right nor authorizes any injury to property or invasion of other rights. Any disputes of this nature must be settled by the parties involved.” (emphasis added).

The emphasized portion of this letter only spells out what this Court said in Rigsby v. Burton, and what may be the general rule, that an act or thing authorized by law may be maintained in such a manner as to constitute a nuisance. See 66 C.J.S.,- Nuisances, § 17, p. 763.

II

The trial court also enjoined the proposed construction of the boathouse on the ground that it would be a prospective violation of the restrictive covenant applying to the Terry Cove Subdivision. The covenant in question limited construction to single private dwellings of at least 900 square feet, on any lot. In determining whether a proposed boathouse violates this provision, we apply the rule that covenants which restrain the use of real property are strictly construed in favor of free use. Only if the intent of the covenant is clear and unambiguous will it be given effect. Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915 (1966).

The restriction here obviously only applies to structures on the lot, not to structures over the water.

In view of the above, the judgment of the trial court is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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

FAULKNER, J., dissents.

FAULKNER, Justice

(dissenting).

I dissent.

In my opinion, the judgment of the trial court should be upheld under the ore tenus rule. The facts and evidence of the case lead me to conclude that a nuisance existed that could be enjoined. The majority says, in effect, an injunction can not stand, but if there is an unreasonable use of the property in the future, an action at law for damages will lie. I think that there is already an unreasonable use of the property by its owner, that constitutes a nuisance.

I would affirm the trial judge.


author: ALMON, Justice.

text:
    A. D. BARNES and Zorado H. Barnes v. R. B. KENT.
    SC 2440.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    J. A. Hornsby, Gadsden, for appellants.
    Barry McCrary of Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, for appel-lee.
   ALMON, Justice.

Appellants brought this action seeking relief under Rule 60(b) ARCP, requesting that the court set aside a judgment rendered between the same parties in a former suit. After hearing testimony, the trial court denied the relief sought. We affirm.

The former suit was over the right of access to certain real property. Appellants’ lost and appealed to this court. That judgment, which is the one here in controversy, was affirmed by this court in Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974).

The sole contention of appellants is that they were denied due process of law because they did not testify at the former trial. They assert that had they testified at the first trial, there would have been ample evidence to contradict appellee’s witnesses. In Barnes v. Kent, supra, this court observed:

“While the appellants offered no witnesses in the hearing below, they were offered a full opportunity to do so. . . ”

So far as we can ascertain, appellants’ dissatisfaction stems from their attorney’s tactics at the first trial. They are represented by different counsel on this appeal. Nevertheless, the appellants were bound by the previous judgment. McGruder v. B & L Construction Company, Inc., 331 So.2d 257 (Ala.1976). There is no evidence in the record to support relief under Rule 60(b).

The judgment of the trial court is hereby affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    AMERICAN CAST IRON PIPE COMPANY, a corporation v. Charles A. BOSWELL, Commissioner of Revenue, etc.
    SC 2448.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    William F. Murray, Jr., Birmingham, for appellant.

      William J. Baxley, Atty. Gen., and Herbert I. Burson, Counsel, Dept, of Revenue and Asst. Atty. Gen., and B. Prank Loeb, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

This is an appeal from a final judgment holding that certain sales of steel pipe by an Alabama manufacturer to a Mississippi contractor with consequent delivery in Mississippi were intrastate in character, and thus subject to the Alabama sales tax. We affirm.

The case was submitted to the circuit court upon a stipulation of facts supplemented by exhibits, the essentials of which follow.

American Cast Iron Pipe Company (Acip-co) is a Georgia corporation qualified to do business in Alabama. Its principal office is located in Birmingham where it manufactures and sells metal products. The sale in question is an outgrowth of a contract made by the Mississippi Fuel Company (a subsidiary of Mustang Fuel Corporation of Oklahoma) with Mississippi Light and Power Company whereby the former agreed to construct a gas pipeline in Mississippi and, upon completion, sell the pipeline to the latter. Mississippi Fuel Company, in turn, ordered from Acipco quantities of pipe to specifications for this job. H. C. Price Company, the general contractor for the project, became the assignee of that contract. In due course the pipe contracted for was manufactured by Acipco at its Birmingham plant and, under a verbal agreement between Acipco, Mississippi Fuel, and Price, Acipco delivered the pipe to Gaido Lingle, Inc., whose plant was immediately adjacent to Acipco, for coating and wrapping. Acip-co invoiced Price as this pipe was delivered to Gaido Lingle. Price separately contracted with Gaido Lingle for the coating and wrapping and also made payment directly to Gaido Lingle for those services. Whether Gaido Lingle or Price contracted with the common carrier, Parkhill Pipe Services Company, to deliver the pipe to the Mississippi job site is not clear, but it is conceded that Acipco did not arrange those shipments. Parkhill itself invoiced the freight charges to Price.

The Price Company subcontracted some of its work to Howard Berry Construction, and after the Berry Company purchased from Acipco quantities of pipe to be installed along the Mississippi right-of-way, shipment to Berry was made in the same way as the Price shipments. In summation then, we have the purchases and sales of pipe to Price and Berry from Acipco for ultimate installation in Mississippi; delivery of the pipe by Acipco to Gaido Lingle for coating and wrapping, and invoices for the purchase price sent by Acipco to Price and Berry at that time; Price or Lingle arranged for shipment to the Mississippi job-site; Parkhill, the carrier, invoiced the freight charges to Price.

Following submission upon the stipulation and exhibits, the trial court found that the sales were consummated by passage of title and delivery completed in Alabama because Acipco was required under its agreement to transport the pipe only to the coater. According to the trial court, the plaintiff’s responsibility having ended upon delivery to Gaido Lingle, the transaction became a closed one under Ala.Code tit. 51, § 786(2)(e). Citing Rite Tile Company v. State, 278 Ala. 100, 176 So.2d 31 (1965) and State v. Mobile Stove & Pulley Mfg. Co., 255 Ala. 617, 52 So.2d 693 (1950), it held that the transaction was taxable under state law.

Characterizing this conclusion of the trial court as “a rather facile consideration of a complex case,” the defendant contends that the essential character of the transaction is the factor which determines whether the sale is intrastate. Such an ungenerous description overlooks the fact that the essential character of the transaction may be determined by giving some attention to the respective contractual duties of the parties, which apparently is what the trial court did.

The issue is not free from difficulty, to be sure, and as the defendant has requested, in our review we have taken into consideration the administrative ruling of the Alabama Department of Revenue, dated December 18, 1967, which resulted from conferences between that department and the defendant. That ruling exempted from state taxation transactions similar to the present ones, with a significant difference. In the transactions covered by that ruling, the agreement between the parties required the manufacturer

[T]o cause the pipe to be transferred to a pipe coater’s plant for coating or wrapping, and after it has been coated or wrapped to cause it to be delivered to a common or contract carrier by rail or truck for transportation outside the state. The manufacturer is responsible for arranging with the carrier for the transportation of the pipe to an out-of-state destination and pays the freight to the carrier.

The facts of the instant case call for the manufacturer to deliver the pipe to the coater’s plant, without any further obligation for shipment. That difference is enough to place the facts of this case outside the ruling of December 18, 1967.

In response to any argument that the State is bound by that administrative ruling, we need only cite International Union of Operating Engineers, Local 321 v. Water Works Board, 276 Ala. 462, 163 So.2d 619 (1964) in which this Court stated:

Such administrative construction is neither binding on the State nor its agencies nor on the court. .

It is well established that a state may tax everything that is “the general mass of property” of that state, and things intended to be sent out of a state, but which have not left it, may remain a part of that general mass and subject to state taxation. Diamond Match Co. v. Village of Ontonagon, 188 U.S. 82, 23 S.Ct. 266, 47 L.Ed. 394 (1903). The protection of the Commerce Clause begins at that moment when “they commence- their final movement for transportation from the state of their origin to that of their destination” (emphasis added); Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886). See also McCluskey v. Marysville & Northern Railway, 243 U.S. 36, 37 S.Ct. 374, 61 L.Ed. 578 (1917), and Empresa Siderurgica, S.A. v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276 (1949) (“It is the entrance of the articles into the export stream that marks the start of the process of exportation.”). These cases illustrate the reason why the responsibility for shipment is important in this frame of reference, i. e., whether the shipment interstate actually has begun.

In Diamond Match Co., supra, the plaintiff cut and put into a river a much larger number of logs than its mills located in another state could utilize. It was the plaintiff’s intention to move them downriver after the spring thaw, load them onto railway cars and ship them to another state. Although the Court recognized that there had been some movement of the commodities (“[W]e may say that the cases establish that there may be an interior movement of property which does not constitute interstate commerce, though property . be destined to another State.” Ibid at 96, 23 S.Ct. at 271), the Court reasoned that they could be taxed by the state because the commodities had not started on their final journey.

Coe v. Errol, supra, also upheld a state tax against logs which had been gathered and then moved to another point on a river for the purpose of shipment to another state. The question was aptly put:

Are the products of a State, though intended for exportation to another State, and partially prepared for that purpose by being deposited at a place or port of shipment within the State, liable to be taxed like other property within the State?
Do[es] the owner's state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation?

The opinion then distinguished between preparatory movements and that point in shipment when they become an interstate shipment:

When the products . . . are collected and brought in ... to a . station serving as an entrepot . such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. Until then it is reasonable to regard them as not only within the State of their origin, but as a part of the general mass of property of that State, .

And the Court continued:

[S]uch goods do not cease to be part of the general mass of property in the State . until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey. . . . (emphasis added).

However, it has been held that once the interstate shipment has begun, an intermediate holding or delay caused by natural forces does not give the property a local situs. State v. Hammermill Paper Co., 149 Minn. 414, 184 N.W. 182 (1921).

In this case it is contended that the pipe was intended to be shipped in interstate commerce, and thus the delivery to Gaido Lingle had no effect upon their status as exempt property. But it has been held that commodities intended for interstate commerce which have had work performed on them in preparation for the shipment nevertheless are not exempt from state taxation. A ease in point is Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17, 54 S.Ct. 267, 78 L.Ed. 622 (1934). There the plaintiff taxpayer operated a cotton compress which received ginned cotton shipped in interstate commerce for storage, compressed it, and moved it out of its warehouse according to orders received from holders of warehouse receipts. The carrier would receive the bales of cotton from the plaintiff, the compress charges would be paid by the carrier, and when the cotton had been brought to the warehouse by rail, the carriage charge would be based upon the through interstate rail rate from point of origin to destination, rather than the intrastate point to plaintiff’s warehouse and then from warehouse to destination. Nevertheless, the Court held that the cotton, while in plaintiff’s warehouse, “had not begun to move in interstate commerce and hence is not a subject of interstate commerce immune from local taxation.” The Court continued:

When it comes to rest there, its interstate journey . . . comes to an end, and although in the ordinary course of business the cotton would ultimately reach points outside the state, its journey interstate does not begin and so it does not become exempt from local tax until its shipment to points of destination outside the state. Before shipping orders are given, it has no ascertainable destination without the state . . . . Property thus withdrawn from transportation, whether intrastate or interstate, until restored to a transportation movement interstate, has often been held to be subject to local taxation, (citations omitted) (emphasis added). Ibid at 21, 54 S.Ct. at 268.

Not only does the matter of movement in the commercial stream affect the essential nature of the transaction, but the relationship of the parties to that movement also affects its intra- or inter-state character. For example, in State Tax Commission v. Pacific States Cast Iron Pipe Co., 372 U.S. 605, 83 S.Ct. 925, 10 L.Ed.2d 8 (1963), a pipe manufacturer, selling interstate, set prices for its goods delivered at the job site, with delivery usually being made either by common carrier or in the manufacturer’s own equipment. On the occasion in question, pipe was made under specifications for an out-of-state job under a contract calling for out-of-state shipment. The manufacturer set a destination price which included the common carrier freight between the two points. However, delivery was made and title passed to the purchaser at the foundry. Then the purchaser transported the pipe with his own equipment to the out-of-state destination. The Supreme Court of the United States held that the State might levy a sales tax on the transaction because passage of title and delivery occurred within the state. That decision might well be characterized as one which dealt with a “completed transaction” within the state, or as the trial court put it, a “closed transaction.” A review of our cases reveals this as an underlying reason for the distinction between intrastate and interstate sales in our state, having local tax consequences.

In State v. Mobile Stove & Pulley Mfg. Co., 255 Ala. 617, 52 So.2d 693 (1950), the Alabama taxpayer operated a foundry. It made patterns for out-of-state customers based upon the customers’ specifications, and these patterns were- used in Alabama by the taxpayer to make castings which were shipped to the out-of-state customers. The patterns were retained in the custody of the taxpayer, but the customer was billed for both patterns and castings when the castings were shipped. This Court found that title to the patterns passed to the customer at that time and that “the parties understood that actual delivery to the buyer was not necessary to the passing of title.” Constructive delivery of the patterns to the customers was found to exist from the time of billing because control of them was vested in the customers at that time, and thus the sale was completed when billing occurred.

While this Court recognized the general rule prohibiting a state tax on a sale of merchandise to be delivered to an out-of-state destination, it added:

But, ‘sales completed entirely within a state are not transactions in interstate commerce; and this rule has been applied to a completed contract of sale between residents of a state, and a contract between citizens of different states, when the contract is made and delivery accepted in the state where the property is situated, although the buyer intends to ship the property outside the state.’ (citations omitted) (emphasis added).

Hamm v. Continental Gin Co., 276 Ala. 611, 165 So.2d 392 (1964) explored the nature of the “closed transaction” as contained in the sales tax statute, Ala.Code tit. 51, § 786(2)(e), but found that the facts of the case did not equate a closed transaction. The taxpayer was an Alabama manufacturer of cotton gins which were shipped to out-of-state buyers in the buyer’s own equipment. The evidence established the existence of a custom in the industry that gin machinery was neither accepted nor payment due for it until it was installed and operating satisfactorily at the buyer’s out-of-state site. The manufacturer itself was responsible for in-transit damage, and also installed the machinery at the out-of-state gin location. Under these circumstances this Court found that the parties did not intend that title pass until the machinery was installed and accepted out-of-state, hence there was no closed transaction in Alabama when delivery of the parts was made in Alabama for shipment on the buyer’s equipment. Accord, State v. Communication Equipment & Contracting Co., 335 So.2d 123 (Ala.Civ.App.1976).

However, a closed transaction was found to exist under the facts of Rite Tile Company v. State, 278 Ala. 100, 176 So.2d 31 (1965). A ceramic tile dealer in Mobile made sales to out-of-state contractors who took delivery at the dealer’s Mobile place of business and immediately transported it outside Alabama. The dealer sold the tile with knowledge that it would be “so transported,” and title to the tile passed to the buyers upon delivery in Alabama. In finding that these sales were “closed transactions,” this Court also commented upon the effect of a contemplated out-of-state shipment:

There is no question that the sales here involved were ‘closed transactions.’ Rather, the contention is that taxation of such sales is prohibited by the Commerce Clause on the theory that, when it is within the contemplation of the parties that goods sold will be promptly transported in interstate commerce, the sale itself is a part of an interstate transaction which may not be taxed by the state. In other words, the naked sale is only part of a continuous transaction and may not be singled out and made the subject of state taxation. This court and the United States Supreme Court have held contrary to this theory, (emphasis added).

The Court then cited Mobile Stove & Pulley Mfg. Co., supra; Hamm, supra; and Pacific States Cast Iron Pipe Co., supra as applications of the closed sale principle, and observed:

The holding of these cases is that a sale taking place entirely within a state is an intrastate transaction, regardless of the fact that the goods sold may subsequently be transported in interstate commerce. The taxation of the sale is not taxation of interstate commerce, but of a closed, intrastate transaction.

Under the stipulation of the parties, the trial court could have found that the pipe in question had not commenced its “final movement” for transportation from Alabama when taxed, Coe v. Errol, supra; that the movement from the Acipco plant to Gaido Lingle was an “interior movement” which did not constitute interstate commerce, even though the pipe was destined for another state, Diamond Match Co. v. Village of Ontonagon, supra; and not having been committed to a common carrier for transshipment out-of-state by that interior movement they were still a part of the mass of property subject to state taxation, Coe v. Errol, supra, whether the State chose to impose that tax by an ad valorem method or by a sales tax method. The trial court also could have found that the pipe was delivered to Gaido Lingle for work to be performed in preparation for shipment, rather than as a part of transportation in a continuous journey out-of-state. Federal Compress & Warehouse Co. v. McLean, supra. The delivery to Gaido Lingle was made at the instance of the buyers who then arranged the transportation. As between Acipco and the buyers, the buyers assumed the risk of loss or damage in transport. The buyers were to pay for the transportation. The common carrier billed Price and Berry, not Acipco. Whether we refer to this delivery to Gaido Lingle as an actual or a constructive delivery to the buyers, the trial court could have found that all control over the pipe had been transferred to the buyers upon that delivery, with Acipco having no further duties relating to the shipment thereafter.

Acipco quoted prices to the final destinations “FOB Mill, Truck Freight Allowed,” see AIa.Code tit. 7A, § 2-319, and it is clear that Acipco intended title to pass in Birmingham. Item 6 of Acipco’s quotation to Mustang Fuel Corporation (Mississippi Fuel Company) reads:

Title to products sold shall pass upon delivery to carrier at the point of shipment, irrespective of any freight allowance or prepayment of freight, and thereafter risk of loss or damage shall be upon Buyer.

This is consistent with the order from Mississippi Fuel Company:

Pipe to be transferred to Gaido Lingle Co., Inc. for coating and wrapping by seller and truck transited to Mississippi to right of way by Buyer. Terms 30 days 2% discount on 10 days — semi-monthly billing on mill value, (emphasis added).

It is also noteworthy that the sales order contract form executed by Acipco on July 13, 1972 contains this language:

SHIP FROM BIRMINGHAM, ALABAMA — TO:
Mississippi Fuel Company C/O Gaido Lingle Coating Company Birmingham, Alabama For reshipment into Mississippi by truck, (emphasis added),
and
3. Billing: Invoice customer for pipe as it is taken to Gaido-Lingle Company.

As between the buyer and the carrier, Parkhill, the point of origin of the shipment was not the Acipco plant in Birmingham, but the Gaido Lingle plant, according to Parkhill’s invoices:

For loading, hauling, unloading and stockpiling 103á" O.D. X .188 w. t. coated and wrapped pipe ... on the Mississippi Fuel Company project in Mississippi. Point of origin — Gaido-Lingle Coating yard, Birmingham, Alabama. . (emphasis added).

Some of the invoices from Acipco to Mississippi Fuel Company recite:

SHIPPED PROM BIRMINGHAM, ALABAMA TO YOU, c/o GAIDO LINGLE COATING CO. BIRMINGHAM, ALABAMA RESHIPMENT TO MISSISSIPPI BY TRUCK
and
FOB MILL, BIRMINGHAM . . .
while others state:
SHIPPED PROM BIRMINGHAM, ALABAMA TO GAIDO LINGLE COMPANY ACIPCO YARD BIRMINGHAM, ALABAMA
or
SHIPPED PROM BIRMINGHAM, ALABAMA TO H. C. PRICE COMPANY c/o GAIDO-LINGLE COMPANY BIRMINGHAM, ALABAMA RESHIPMENT TO MISSISSIPPI

We have concluded that the trial court was correct when it described this transaction a “closed transaction constituting a sale” under the Sales Tax Law, Ala.Code tit. 51, § 786(2)(e) (1973 Supp.):

(e) The term ‘sale’ or ‘sales’ includes installment and credit sales and the exchange of properties as well as the sale thereof for money, every closed transaction constituting a sale.

because it was the manifested intention that upon delivery to Gaido Lingle, title passed to the buyer and the responsibility for its subsequent shipment passed to the buyer as well: Ala.Code tit. 7A, § 2-401(2), § 2-106(1).

Accordingly, the judgment of the trial court must be, and is, affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. MADDOX, Justice

text:
    Jackie WEAVER and Canyonland Park, Inc. v. TRAVEL INN, INC.
    SC 2469.
    Supreme Court of Alabama.
    Sept. 30, 1977.

      Roger Killian of Killian & Gillis, Fort Payne, for appellants.
    Terry T. Bush, Rainsville, for appellee.
   FAULKNER, Justice.

This is an appeal from an order denying a motion for relief from judgment. We reverse and remand.

On June 11, 1974, Travel Inn filed suit against Weaver and Canyonland for $55,000 plus interest and costs due by open account. After a letter was allegedly mailed to Weaver advising him that a default would be taken unless settlement was made, Travel Inn, on July 24, filed an application for default, accompanied by an affidavit of Travel Inn’s counsel. The affiant swore that 30 days had elapsed since summons and complaint were served; defendants failed to answer or otherwise defend, and requested entry of default pursuant to Rule 55(a) ARCP. On August 5, Weaver and Canyonland filed an answer of not guilty and demanded trial by jury.

On March 31, 1975 Travel Inn by its agent, Ross Guthrie, filed an affidavit stating that Weaver and Canyonland owed Travel Inn $58,300 plus interest for work done by Guthrie, and that “said amount is now due and unpaid, and all lawful off-sets, payments, and credits have been allowed.” On April 7, the clerk issued a certificate certifying that Travel Inn recovered a judgment of $58,300 against Weaver and Can-yonland. Several executions were attempted, but in each instant the return showed no property found.

On July 1, 1976, Weaver and Canyonland filed a motion for relief from judgment. The motion was denied by the trial court.

Rule 55(a) ARCP provides that the Clerk may enter default at the plaintiff’s request, against a party who has failed to plead or otherwise defend. Entering default by the clerk (or by the court) is the first action taken before entering a default judgment.

The clerk can enter a default when a claim for affirmative relief has been made against a party who fails to plead, or otherwise defend. This failure is shown by an affidavit or otherwise. The general effect of an entry of default is that of a decree pro confesso under the old Equity Rules 32-34, T. 7 Code of Alabama 1940, Therefore, the plaintiff, having had the clerk make an entry of default, proceeds to have a judgment by default entered pursuant to 55(b).

Under 55(b)(1) the clerk may enter a default judgment but only where (1) the claim is for a sum certain or can be made certain by computation, (2) the default is for failure to appear, and (3) the defendant is not an infant or incompetent person. An affidavit showing the amount due, default for failure to appear, and that defendant is not an infant or incompetent person, must be filed with the request for default judgment.

The record neither shows that an entry of default was ever made by the clerk nor that a judgment by default was entered by the clerk. Moreover, while the affidavit for entry of default complies with Rule 55(a), the affidavit for judgment by default is deficient on its face. This affidavit states that $58,300 plus interest is due, for work and labor, yet the complaint claimed $55,000 due by open account. Furthermore, the affidavit did not state default was for failure to appear, and it did not state that the defendant was not an infant or incompetent person. Obviously, Canyonland was neither an infant nor an incompetent person, but could one who did not know, say that Weaver was not. Admittedly, in this instance, this may appear to be technical, but it does not take any more time to do something right than it does to do it wrong — sometimes less.

The certificate of judgment in this case is a nullity. There is not an entry of judgment; there is not a judgment by default. Rule 55, §§ (a) and (b)(1) have not been complied with. The motion for relief under Rule 60 should have been granted, and the court’s order denying the motion is reversed.

REVERSED AND REMANDED.

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

BLOODWORTH, MADDOX, SHORES and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

I would not reverse the judgment, but would merely remand the cause to the circuit court to determine whether a default had actually been entered by the clerk, although not shown by the records.

The entry of a default is not merely a perfunctory matter. See United States v. Herlong, 9 F.R.D. 194 [W.D.S.C.1949]. The entry of a default is not totally discretionary with the clerk under all circumstances.

Alabama Rules of Civil Procedure 55(a) provides:

“(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.”

Travel Inn’s application for default, while omitting the date of service, nevertheless alleged that more than 30 days had elapsed since the defendants were served with summons and a copy of the complaint. Additionally the summons, which was in the record, showed that Weaver was served on June 11,1974, which was more than 30 days prior to the application for default. Under ARCP 55(a) the clerk is authorized to look at the whole record, and is not limited to the affidavit.

As stated in 6A Moore’s Federal Practice ¶ 58.06, p. 58-262, “But if the clerk possesses the authority yet neglects to follow the prescribed procedure, the clerk’s action is not deemed a nullity.” Although this statement is made in the context of the entry of judgments, the rationale is equally applicable to the entry of default. Where adequate facts are made to appear by the application for default and the record, I believe the clerk is mandated by the language of ARCP 55(a) to enter the default. See 6A Moore’s Federal Practice ¶ 58.04[1]. The clerk’s failure to enter default upon proper application upon the records is a clerical error which could be corrected by the court on its own motion under ARCP 60(a).

“In brief, then, courts possess an ample remedial power to correct clerical mistakes in judgments, orders, or other parts of the record, and also . . . errors arising from oversight or omission. In exercising the power to correct clerical mistakes, courts should, however, confine the power to correction of mistakes that may legitimately be said to be clerical, and exercise it only on a clear showing of mistake.” 6A Moore’s Federal Practice ¶ 60.06[3], p. 4061-63.

If, after remand, the Court should determine that the entry of default was made on July 24, 1974, Weaver’s filing of an answer and jury demand twelve days thereafter would not operate to remove appellants from default. Sparks v. J. S. Reeves & Co., 165 Ala. 352, 51 So. 574 (1910).

The late filing would not constitute an appearance or pleading under ARCP 55(b)(2) so as to require the judgment of default to be rendered by the court within three days’ notice to Weaver.

I believe that when a plaintiff has done all that is required to entitle him to a default judgment, he should not be prejudiced by the clerk’s ministerial failure to enter it properly. 49 C.J.S. Judgments § 205, p. 365. The effect of a failure to enter judgment was recently explained in LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581 (1972):

“As against strangers the maxim that a court of record can act only through its records prevails, and the recording of the judgment in the minutes of the court may be regarded as essential to its effectiveness as against third parties. 46 Am. Jur.2d Judgments, Section 159. However, as between the parties, the validity of a judgment is not affected by the failure of the clerk of the court to note-the judgment in the minutes book: Shargaa v. State (Fla.), 102 So.2d 809.” (emphasis added).

The judgment certificate issued by the clerk on April 7, 1975, stated that a default judgment was taken against Weaver on February 28, 1975. An affidavit of amount due was not filed by Travel Inn until March 31, 1975. A review of the record indicates that the date of February 28th is a clerical error. The only other place in which that date appears is on the affidavit of amount due as the date of making the affidavit rather than the date on which the affidavit was filed. Apparently, February 28 was the date of filing and the clerk mistakenly used this date. Although the trial court did not make a specific finding of fact that the judgment was rendered on March 31, 1975, such a finding would be necessary to support the denial of a motion for relief from judgment.

On remand, the court could clear up this mistake.

In short, I would give the trial judge an opportunity to determine whether these were clerical mistakes which could be corrected without voiding the judgment.

BLOODWORTH, SHORES and BEAT-TY, JJ., concur.