author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    Opinion No. 9.
    Supreme Court of Alabama.
    Oct. 25, 1977.
   SENTELL, Clerk.

AMENDED RULE 45, ALABAMA RULES OF JUDICIAL ADMINISTRATION COSTS FOR CERTIFICATION OF COURT RECORDS

Mrs. Polly Conradi, Clerk of the Circuit Court for the Tenth Judicial Circuit of Alabama, Birmingham, has submitted to me, as Clerk of the Supreme Court, pursuant to Section 6-105, Act No. 1205, Acts of Alabama 1975, Regular Session, the following question:

Is a certificate prepared by an attorney for a party reading: “This is to state that the judgment and court costs in the above-styled cause have been paid in full and satisfied,” the same as a certificate of judgment and can a charge be made therefor?

It is my opinion that this form is not the same as a certificate of judgment and that no charge can be made for signing such a statement under amended Rule 45, Alabama Rules of Judicial Administration.

Amended Rule 45, Alabama Rules of Judicial Administration, reads as follows:

Rule 45: Costs for Certification of Court Records—
A. There is hereby established a fee of $1.00 per page for certified copies of court records requested from any court clerk or register. A 50 cents per page charge is applicable to copies of court records which are not certified.
B. Fees collected for copies shall be disbursed as presently disbursed through September 30, 1977. On and after October 1,1977, such fees shall be disbursed to the state general fund.

Rule 45 authorizes a charge of $1.00 per page “for certified copies of court records . . . ” In my opinion, the form in question is neither a court record nor a copy of a court record.

A court record has been defined as follows:

A written memorial of all the acts and proceedings in an action or suit, in a court of record. The official and authentic history of the cause, consisting in entries of each successive step in the proceedings, chronicling the various acts of the parties and of the court, couched in formal language established by usage, terminating with the judgment rendered in the cause, and intended to remain as a perpetual and unimpeachable memorial of the proceedings and judgment. Black’s Law Dictionary, 1438 (Revised 4th Ed., 1968), State v. Brewer, 19 Ala.App. 291, 97 So. 160, 161 (1923); Allen v. Phillips, 87 Ark. 185, 112 S.W. 403. See also Powers v. Trent, 129 W.V. 427, 40 S.E.2d 837, 839 (1946).

The word, “copy,” implies that the instrument so labeled is identical with another instrument. Blatz v. Travelers Insurance Company, 272 App.Div. 9, 68 N.Y.S.2d 801, 806 (1947). The New York Supreme Court, in Johnson v. Weed-Parsons Printing Company, 36 Misc. 628, 74 N.Y.S. 373, 374 (1901), stated:

In ordinary parlance the word “copy” means, not a reproduction of only a portion of the thing copied, but of the whole of it. The Century Dictionary defines the word as follows: “A completed reproduction, or one of a set or number of reproductions, containing the same matter or having the same form or appearance.”

Amended Rule 45, Alabama Rules of Judicial Administration, should be read in connection with Section 12-19-20, Code of Alabama 1975 (Section 16-109(b) of Act 1205, Acts of 1975) which reads as follows:

The fees prescribed in this chapter shall be exclusive of all other fees except that (1) the administrative director of courts may, pursuant to supreme court rule, set schedules of fees for payments to court appointed officers, for preparation of transcripts on appeal and for certification of court records.

The only provision in the Rules of Judicial Administration for certification of court records is found in amended Rule 45.

You stated that all monies are receipted by your office and you enclosed a copy of your official receipt which reads as follows:

Received of_ the sum of_($_) Dollars in full payment of_ in the case of_ vs._No._By_ Deputy Clerk.

You also enclosed a copy of circuit forms, “Clerk’s Certificate — Judgment and Costs Paid,” and “Certificate of Judgment in Circuit Court,” for which, you state, a charge of One Dollar is made.

These forms are as follows:

CLERK’S CERTIFICATE-JUDGMENT AND COSTS PAID
I, the undersigned, as Clerk of said Circuit Court, in and for said State and County, do hereby certify that in the cause of _ Plaintiff, vs. _ Defendant, judgment was rendered in said Court in favor of the said Plaintiff and against the said Defendant for the sum of _ Dollars besides the Court Costs.
I further certify that said judgment, together with Court Costs, has been paid to me as Clerk of said Court.
Witness my hand, this_day of_, 19_.
Clerk Circuit Court
CERTIFICATE OF JUDGMENT IN CIRCUIT COURT
I, the undersigned, as Clerk of the Circuit Court of the Tenth Judicial Circuit of Alabama, in and for said County and State, do hereby certify that on the _ day of __, 19_, a judgment was rendered by said Court in the above stated cause, wherein _ is (are) Plaintiff_ and _ is (are) Defendant_ in favor of the Plaintiff, and against the said Defendant, for the sum of _ Dollars, and also the sum of_Dollars costs of said suit, and that _ is (are) the Attorney, of record for Plaintiff in said cause. Witness my hand, this_day of_19_.
Clerk Circuit Court.

These certificates which you have enclosed are not certified copies of court records within the meaning of amended Rule 45, Alabama Rules of Judicial Administration.


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    Opinion No. 10.
    Supreme Court of Alabama.
    Oct. 25, 1977.
   SENTELL, Clerk.

AMENDED RULE 45, ALABAMA RULES OF JUDICIAL ADMINISTRATION COSTS FOR CERTIFICATION OF COURT RECORDS

RULE 40, ALABAMA RULES OF JUDICIAL ADMINISTRATION DESCRIPTION OF AND FEE FOR TRANSCRIPTS

Mr. Allen Tapley, Administrative Director of Courts, has submitted to me, as Clerk of the Supreme Court of Alabama, pursuant to Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, the following inquiries:

(1) Does the phrase, “court records,” as used in amended Rule 45, Alabama Rules of Judicial Administration, cover charges for documents which are not, strictly speaking, court records, such as certificates of judgment or forms showing payment of judgment and court costs.
(2) Does the $1.00 charge per page for certified copies set forth in Rule 45 supersede the 10$ per page charge for copies of the record on appeal as provided by Rule 40.

In my opinion, each of these should be answered in the negative. Reference is made to Opinion No. 9, dated October 25, 1977, in answer to inquiry from Mrs. Polly Conradi, wherein I stated, in my opinion, amended Rule 45, Alabama Rules of Judicial Administration, does not authorize a charge of $1.00 for certificates of judgment or forms showing payment of judgment and court costs.

In answer to the second inquiry, Rule 40(B)(1) and (2) and amended Rule 45, Alabama Rules of Judicial Administration, should be read in connection with Section 12-19-20(b), Code of 1975, (Section 16-109(b)(1), Act 1205, Acts of 1975) which reads as follows:

The fees prescribed in this article shall be exclusive of all other fees except that (1) The administrative director of courts may, pursuant to supreme court rule, set schedule of fees for payments to court appointed officers, for preparation of transcripts on appeal and for certification of court records .

Rule 40(B), Alabama Rules of Judicial Administration, was adopted pursuant to the authority to charge fees “for preparation of transcripts on appeal.”

Rule 45 was adopted pursuant to the authority to set fees “for certification of court records.”

Rule 40(B) provides a schedule of “fees to be paid to clerks, registers or other officers of the court, for services rendered in preparing, assembling, numbering, completing and binding transcripts on appeal, and in making photocopies thereof, and in filing certificates of completion in accordance with the Alabama Rules of Appellate Procedure.”

Rule 35(c), Alabama Rules of Appellate Procedure, provides that “the costs of producing the necessary copies of the clerk’s record and the reporter’s transcript shall be taxable in the trial court.”

Although the charges in Rule 40(B), Alabama Rules of Judicial Administration, are referred to as fees, they are actually court costs. The fees referred to in Rule 45 are charges made for services rendered individuals not in the course of litigation. The fees in Rule 40(B) are actually court costs which are allowed to a party for the expense incurred in prosecuting or defending a suit.

The basic difference between “costs” and “fees” was clearly stated by Chief Justice Brickell in Tillman v. Wood, 58 Ala. 578, 579 (1877), as follows:

“Costs are an allowance to a party for expenses incurred in prosecuting or defending a suit — an incident to the judgment, while fees are compensation to public officers for services rendered not in the course of litigation.”

There is, therefore, no conflict between Rule 40(B) and Rule 45, Alabama Rules of Judicial Administration. The fees prescribed in Rule 40(B) are fees charged for preparing the clerk’s record and the record on appeal in the course of an appeal. Rule 45 prescribes the fees to be charged for copies of records that are made not in the' course of an appeal.


author: FAULKNER, Justice.

text:
    Ex parte Billy Scott BARNETT.
    SC 2823.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: PER CURIAM.

text:
    In the Matter of Jennifer Melissa WARD and Regina Leach Ward. Marion and Margaret WARD v. The DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama.
    Civ. 1000.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1977.

      Theodore L. Hall, Daniel W. Malloy, Mobile, for appellants.
    Jamie L. Pettigrew, Montgomery, for Dept, of Pensions & Security, State of Ala.
   PER CURIAM.

After hearing of a dependency petition filed by the Department of Pensions and Security, hereafter referred to as the Department, the Juvenile Court of Mobile County terminated the parental rights of Marion and Margaret Ward to their two minor daughters. The Wards appealed to a trial de novo in the circuit court as provided by statute. The circuit court again terminated the Wards’ parental rights to their children. The Wards have filed appeal of that judgment to this court.

The circuit court granted motion by the Wards to proceed on appeal in forma pau-peris under Rule 24(a), ARAP. However, their request to provide a free transcript for appeal was denied. The Wards have now renewed their motion for a free transcript in this court. We grant the motion.

The Wards founded their motion upon constitutional grounds. They contend that they are indigent parties to an action brought by the state to take from them a fundamental constitutional liberty, the right to have and exercise parent-child relationship. They say the termination of such relationship by action of the state must be accompanied by requisite due process and equal protection accorded by the Fourteenth Amendment of the Constitution of the United States. They submit that the principles of due process and equal protection pronounced by the Supreme Court of the United States in the cases of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); and Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) apply in this case.

Several states in recent years have held that indigent parents whose parental rights to their children were terminated in actions brought by the state, were entitled to free counsel at all stages of the proceedings, including appeals by right, and to free transcript on such appeals.

Some of the cases were decided upon constitutional grounds of due process and equal protection. Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (1976). Others were decided upon an interpretation of state statutes. In re Appeal in Pima County, Juvenile Action No. J-46735 v. Howard, 112 Ariz. 170, 540 P.2d 642 (1975); Crespo v. Superior Court for County of Los Angeles, 41 Cal.App.3d 115, 115 Cal. Rptr. 681 (1974); Nix v. Department of Human Resources, 236 Ga. 794, 225 S.E.2d 306 (1976); In re Chambers, 261 Iowa 31, 152 N.W.2d 818 (1967); In re Narren, 280 Minn. 377, 159 N.W.2d 402 (1968). Though it may be properly said that we evade the opportunity of declaring an extension of fundamental constitutional principles, we choose to grant the motion for a free transcript upon authority of state statutes and Rules of Juvenile Procedure adopted by the Alabama Supreme Court. Title 13A, Sections 5-124 and 5-152. In this course, we do not deny that underlying it are the principles of Griffin v. Illinois, supra and Douglas v. California, supra and thus preceden-tial ancestry.

Though Article 5 of Title 13A of the Code and the Rules of Juvenile Procedure were not in effect at the time this proceeding was begun, heard and judgment entered in either the Juvenile Court or the Circuit Court of Mobile County, they did become effective January 16, 1977. It is the opinion of this court that Article 5 of Title 13A and the Rules of Juvenile Procedure may now be applied to matters pending before this court, such as the motion for a free transcript to prosecute a pending appeal. Rule 86, ARCP.

Sec. 5-124(b) of Title 13A provides as follows:

“In dependency cases, the parents, guardian or custodian shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable, for financial reasons, to retain their own.

It is in dependency eases that the issue of termination of parental rights arises. Sec. 5-101(j), Code.

The legislature has thus by statute recognized that an action brought by the state which involves the termination of parental rights is of such importance that a parent must be informed of the right to counsel, and if indigent, must be furnished counsel. Such legislative and statutory recognition is in line with statements of the United States Supreme Court as to the fundamental nature of parental rights. The court in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953) called such rights “far more precious . . . than property rights.” In Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), it said:

“Constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household, to direct the rearing of their children is basic in the structure of our society.” 88 S.Ct. at 1280.

The court first said in 1923 in the case of Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), that the “liberty” guaranteed against state interference by the Fourteenth Amendment meant more than freedom from bodily restraint. Meyer said:

“Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 43 S.Ct. at 626.

The legislature in providing for appointed counsel for indigent parents in the trial of termination of rights cases acted in recognition that such cases represent state action in derogation of fundamental constitutional rights. The legislature did direct appointed counsel for indigent parents. It further granted to the parents the right of appeal from the final order of the Juvenile Court. Sec. 5-152, Code.

In accordance with its rule-making power, Title 13A, Sec. 5-102, Code, the Alabama Supreme Court on the 14th day of October, 1976, adopted the Alabama Rules of Juvenile Procedure. Those rules were effective January 16, 1977. Rule 11(c) provides:

“(I)n addition, the person in charge of the intake office shall immediately attempt to notify the parents or guardian of the child of the detention. He shall also inform them of the child’s rights and
of their right to be represented by counsel throughout the proceedings." (Emphasis ours.)

Rule 22 provides:

“Right to counsel at all stages of the proceedings shall include the right to counsel in an appeal.”

We consider the only logical conclusion to be that Rule 11(c), as above quoted, provides the procedural, implementation of the substantive right granted by Sec. 5-124(b). That is, that parents have the right to counsel from initial trial throughout all proceedings. Under Rule 22 that includes an appeal.

As the California Court of Appeals said in the case of Crespo v. Superior Court for County of Los Angeles, supra:

“We do not believe that the legislature intended to guarantee the indigent parents in a [dependency] proceeding the right to appointed counsel and the right to appeal while at the same time impairing that right of appeal by permitting the indigent parents’ inability to afford transcripts to preclude effective utilization of the right to appellate review.” 115 Cal. Rptr. at 683.

We construe Sec. 5-139(a) to authorize the trial court to order necessary transcripts at county expense. Rule 11(J) ARJP provides:

“The child shall be furnished a transcript on appeal. If the child or his parents cannot afford a transcript, the court shall order the transcript paid for out of funds set aside for this purpose.”

Rule 11(J), added to all the provisions of Rule 11 preceding it, is calculated to satisfy all the basic constitutional rights required by decisions of the U.S. Supreme Court to be extended to those charged with criminal offenses. Such rights were required to be granted as well to juveniles by the decision of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

It appears to this court that 11(J) should provide for furnishing of transcript to indigent parents as well, in proceedings brought by the state to terminate their parental rights.

We follow the lead of the Supreme Court of Georgia as espoused in the case of Nix v. Department of Human Resources, supra. It appears from that case that many provisions of the Georgia Juvenile Code are similar to Article 5 of Title 13A, Code of Alabama (1940). Among the similarities is the recognition that juvenile proceedings are unique and are significantly different from purely civil cases. Other marked similarities between the Georgia Juvenile Code and that of Alabama are the provisions for appointed counsel for parents and right of appeal. The Georgia Supreme Court said as follows:

“It is thus quite evident that the entire legislative scheme written into the pertinent provisions of the Juvenile Code was intended to provide to an indigent parent effective representation at all stages of any proceeding involving the termination of that parent’s right to his or her child. Considering the permanent jeopardy to the precious rights in issue, we conclude that the right to a paupered transcript under these circumstances is found in the Latin phrase, ‘in est de jure’.”

There are also apparent equal similarities in the Iowa Juvenile Code. In the case of Chambers v. District of Dubuque County, 261 Iowa 31, 152 N.W.2d 818 (1967) the Supreme Court of Iowa said as follows:

“It would be a strange interpretation of Chapter 232 indeed if we should find that the legislature specifically gave plaintiff the right to appeal; that it specifically provided that all proceedings in Juvenile Court should be reported; that it specifically provided for the appointment of counsel for indigent persons, but that it nevertheless refused to permit plaintiff to pursue her statutory right of appeal solely because she was unable to afford a transcript. We are unwilling to so hold.” 152 N.W.2d at 821.

This court agrees with the Georgia Supreme Court, that the right of the indigent parents in this case to a free transcript on an appeal given as a matter of right is implied as a matter of law from Article 5, Title 13A of the Code and the Rules of Juvenile Procedure.

.We do not accept the contention of the state that the right of the Wards to a free transcript is not available upon appeal to this court. We are familiar with the limitation of the decision in Ross v. Moffitt, supra. The appeal here is not a discretionary one. It is one of right even after trail de novo in circuit court. Title 7, Sec. 754, Code.

We do not hold that an entire free transcript is to be furnished to an indigent parent in every case. Whether an entire transcript is necessary to an effective appellate review, or what portion thereof, is a matter for the trial court to determine after consideration of the issues to be raised on appeal and a declaration of need filed by counsel. Crespo v. Superior Court for County of Los Angeles, supra; Rule 10, ARAP.

It having been made known to this court that one of the issues to be presented upon appeal is the sufficiency of the evidence to support the judgment, we find that a full transcript is necessary to properly present such issue for review. The court therefore directs the Circuit Court of Mobile County to proceed to order such transcript.

MOTION GRANTED.

All Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Donald Harris BLACK, Jr. v. DANIEL ORNAMENTAL IRON COMPANY.
    Civ. 1178.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1977.
    Rehearing Denied Sept. 28, 1977.
    E. L. Brobston, Bessemer, for appellant.
    W. Gerald Stone, Stone, Patton & Kierce, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

This case originally came to this court on appeal by Daniel Ornamental Iron Co. from a judgment which awarded compensation to Donald Black for a permanent partial disability. This court reversed the aspect of the judgment awarding compensation. That decision is reported as Daniel Ornamental Iron Company, Inc. v. Black, 47 Ala.App. 608, 259 So.2d 291.

The issue there was whether the trial court could enter a judgment granting compensation for permanent partial disability after entering a finding of fact that the claimant’s refusal to submit to further examination and indicated surgical procedure was unreasonable. Our decision was that there could be no judgment granting compensation in that case where there was an unreasonable refusal to submit to request for examination or for subsequent medical treatment found to be needed. The claimant did not appeal from the finding of fact by the court that he had unreasonably refused examination and treatment.

Our decision clearly was a reversal only as to the granting of compensation. The finding of fact that claimant had unreasonably refused examination and treatment remained in effect. Title 26, § 293, Code of Alabama (1940) (Recomp.1958), requires that his right to compensation be suspended and no compensation paid during such refusal. Because of the statute, so long as such refusal continued, there was nothing further to be done. We remanded the case, not for retrial of the issue of fact for that had been determined, but merely to place it back in the jurisdiction of the circuit court. Claimant could have then submitted to examination or treatment, or he could have presented pleadings as to change of circumstances since the previous trial which might support modification. In any event, so long as the status of unreasonable refusal existed, the suspension of payments was according to statute.

We have held that during the period of unreasonable refusal benefits are forever lost. Scott v. Alabama Machinery & Supply Co., 52 Ala.App. 459, 296 So.2d 160 (1972). The court found the unreasonable refusal by decree of January 16, 1970. There had been no action by claimant whatsoever since that date to secure relief from the statutory suspension prior to the filing of motion for summary judgment by Daniel on January 20, 1977. The ground of the motion was that the maximum time during which claimant could have drawn compensation (300 weeks) had expired during suspension and he was no longer eligible for payment. Under authority of the decision in the first appeal in this case and of Scott v. Ala. Machinery & Supply Co., supra, the judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Donald Harris BLACK, Jr.
    77-34.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    James O. HAYDEN v. TOWN OF RIVERSIDE, a Municipal Corporation, W. A. Coleman, John Phillips, Earl Smith, A. J. Blake, James Cunningham and Frank Riddle.
    Civ. 1247.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1977.
    Rehearing Denied Oct. 12, 1977.

      S. P. Keith, Birmingham, for appellant.
    William J. Trussed of Church, Trussed & Robinson, Pell City, for appellees.
   BRADLEY, Judge.

This appeal is from a judgment of the Circuit Court of St. Clair County in which there was a finding against plaintiff on his complaint and a finding for defendants on their counterclaim against plaintiff in the amount of $1,800.

Appellant, James O. Hayden, filed a complaint against the Town of Riverside, Alabama and its mayor and town councilmen alleging that he had been employed as a police officer on May 8, 1972 and was in October 1972 appointed chief of police; that he served in such capacity until March 3, 1973 when he was discharged illegally, wrongfully and without good cause; that he was discharged without notice and hearing; and that he had always performed his duties promptly and efficiently. Hayden requested a declaratory interpretation of Title 37, Section 451, Code of Alabama 1940 (Recomp. 1958); an injunction to prevent defendants from refusing to employ Hayden as chief of police; and a judgment requiring that defendants pay him the wages he lost by virtue of his illegal termination as such officer.

Defendants denied the allegations of the complaint and then filed a counterclaim. In the counterclaim defendants alleged that plaintiff had been employed as a police officer on May 8,1972 and as police chief in October 1972; that he had been paid $600 per month as police chief until March 3, 1973 when his employment contract was terminated; that as part of his employment agreement he was to perform his duties as a police officer correctly, efficiently and promptly; that from October 1972 through February 1973 plaintiff did not perform his agreement as he had promised and as required by defendants; that defendants paid plaintiff for the period aforesaid $600 per month; and that defendants claim of plaintiff $3,000 as damages.

Defendants’ motion to strike plaintiff’s jury demand was granted on January 31, 1975 after plaintiff’s counsel had informed the court he would not be present for the hearing on the motion. On February 6, 1975 plaintiff filed a motion asking the court to dismiss his complaint without prejudice. This motion was carried over to May 27, 1975, the day set for a hearing on the merits of the case.

On May 27, 1975, the trial date, neither the plaintiff nor his attorney appeared; the defendants and their attorneys appeared and announced ready for trial.

The court, after hearing evidence that plaintiff’s attorney had been notified of the hearing date, conducted a hearing on the merits of the ease. During the hearing defendants placed in evidence the testimony of three witnesses: the mayor and two councilmen. Their testimony tended to show that the plaintiff had, contrary to instructions, driven the patrol car an excessive number of miles and had driven it outside the city limits; had failed and refused to arrest law violators; had failed to collect license fees from the town’s businesses; had illegally confiscated legal whiskey, which contained Alabama tax stamps, from a legitimate business within the city limits of the town; that he had made improper sexual advances to women other than his wife; that he would not keep the mayor and councilmen informed of his whereabouts; that he would check out but would not check back in; that he stayed at the Holiday Inn for hours on end; that his attitude was: “Well, if I see somebody doing something I might give them a ticket. . I will tend to it if I think anything needs to be tended to . ;” that he was not interested in enforcing the traffic laws because he was only interested in enforcing the drug laws (Riverside has a population of 351); that the town council fired the plaintiff for not doing his job as a police officer; that plaintiff was present at the meeting of March 3, 1973 and the council discussed with him all of the above grievances they had with him and asked him to resign, and plaintiff refused to resign; that upon plaintiff’s refusal to resign the council unanimously fired him; that from December 1972, when the council gave plaintiff a second chance, up until March 3, 1973, the date he was fired, plaintiff did not make a single arrest because he was never in town; and that he used the city police car to take his children to a private school which was located about ten miles outside Riverside.

Subsequent to the hearing the trial court rendered a judgment in which it refused to allow plaintiff to dismiss his action. Moreover, the court found that plaintiff, while employed as chief of police of Riverside, Alabama at $600 per month, had failed to perform his duties as such officer efficiently, promptly or expertly and therefore plaintiff was not wrongfully discharged by defendants. The court further found that plaintiff’s conduct amounted to a breach of his employment agreement and in effect was a relinquishment of his job as police chief in December 1972, and on the basis of this finding, awarded defendants $1,800 in damages.

Plaintiff’s motion for new trial was overruled after a hearing and he appeals.

In brief plaintiff argues several issues, the first of which concerns the trial court’s refusal to permit him to dismiss his complaint.

Rule 41 of the Alabama Rules of Civil Procedure deals with dismissal of actions and, in the part here pertinent, provides as follows:

“(a) Voluntary Dismissal: Effect Thereof.
“(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs .
“(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. . . . ”

In the case at bar plaintiff’s motion to dismiss his complaint was filed after the answer was filed, so it was necessary to obtain the approval of the court for the dismissal. Rule 41(a)(2), supra. The rule is that the allowance of such a motion is not one of absolute right but is discretionary with the trial court, and the exercise thereof will not be disturbed on appeal except for clear abuse. Moore v. C. R. Anthony Co., 198 F.2d 607 (10th Cir. 1952).

The record shows that plaintiff’s attorney had been notified of the hearing date but neither he nor the plaintiff appeared on that day. The record also shows the defendants and their lawyers appeared and announced ready for trial, and that they had several witnesses present to testify. On the basis of the record before us on this appeal, we are unable to say that the trial court abused its discretion in refusing to permit plaintiff to dismiss his action. See Ockert v. Union Barge Line Corp., 190 F.2d 303 (3d Cir. 1951).

Plaintiff’s next complaint is that he was not given notice of his impending discharge nor was he given a hearing by the Town of Riverside prior to his discharge, all in violation of Title 37, Section 451, Code of Alabama 1940 (Recomp. 1958). Section 451 provides:

“Any person appointed to office in any city or town may, for cause, after a hearing, be removed by the officer making the appointment. The city council may remove, by a two-thirds vote of all those elected to the council, any such person for incompetency, malfeasance, misfeasance, or nonfeasance, in office and for conduct detrimental to good order or discipline, including habitual neglect of duty, in the several departments.”

The evidence shows that the mayor, Mr. Coleman, talked to the plaintiff in December 1972 and then again on January 2, 1973 about the plaintiffs failure to perform the job of police chief. On January 2, 1973 the mayor relieved the plaintiff of his duties as police chief. On January 3, 1973 the town council met with the plaintiff after notifying him of the meeting and discussed with him all of the problems they were having with him and what they wanted him to do as police chief. At this meeting the council voted three to two to give plaintiff another chance to do his job properly. According to the testimony the plaintiff did not do the things he had been told to do in order to properly carry out his duties as police chief.

On March 3, 1973 the town council met again to discuss, among other things, their problems with the plaintiff. The plaintiff was present at this meeting and again the council members discussed with plaintiff the problems they were having with him and why he was not properly performing his duties as police chief. The council then voted unanimously to ask for plaintiff’s resignation; the plaintiff refused to resign and the council then unanimously voted to fire him.

Based on the evidence set out above, we conclude that Title 37, Section 451 was not violated by the defendants, and that plaintiff had sufficient notice of the reasons why the defendants were dissatisfied with his performance of the duties of police chief. We further hold that plaintiff had an adequate hearing on these matters and that he was given every opportunity to do the job of police chief according to the terms of his employment agreement.

Plaintiff also argues in brief that defendants did not have the authority to discharge him from the position of police chief because the defendants did not show that he was guilty of intentional wrongdoing as required by the supreme court in the case of In re Emmet, 293 Ala. 143, 300 So.2d 435. The Emmet case is inapt authority for this contention for the reason that the supreme court was construing a constitutional provision relating solely to the disciplining of judges. Section 451 provides the grounds for the dismissal of the plaintiff and, as pointed out above, there was undisputed evidence that plaintiff had failed, and indeed, had refused to carry out the duties of police chief as had been described to him on many occasions by the mayor and councilmen of the Town of Riverside.

Next, plaintiff says that the trial court erroneously struck his demand for jury trial. He says that he had requested in his complaint a declaratory judgment on Title 37, Section 451, Code of Alabama 1940 (Recomp. 1958), a money judgment to recover lost wages and an injunction to prevent defendants from refusing to allow him to work as police chief. Of the three claims, he submits that only the request for the injunction constitutes strictly equitable relief and therefore he should have been entitled to a jury trial on the law issues raised by his complaint.

As we view plaintiff’s complaint, it was a request for the court to decide whether he had been properly discharged from his position as police chief and, if not, to enter an order reinstating him as police chief and paying him for lost wages.

However, we consider it unnecessary to consider plaintiff’s objection on its merits for the reason that plaintiff waived his right to a jury trial when he and his counsel failed to appear on the day of the trial to prosecute his claim and defend against defendant’s counterclaim. Rules 38(d) and 55(a), (b)(2) and (d), ARCP (and committee comments thereto). We find no error here.

Lastly, we consider plaintiff’s contention that the trial court erred in awarding defendants $1,800 on their counterclaim. The amount awarded appears to represent about three months’ salary at $600 per month for the three months that defendants contend that plaintiff did nothing as police chief to warrant receiving the salary. Plaintiff replies that defendants are estopped from recovering monies that they had paid him while he was police chief, especially when he was permitted to remain in that capacity and hence was led to believe that he would receive a salary therefor.

Defendants say in brief that they waive the judgment and will make no effort to collect it. However, it is an outstanding judgment against plaintiff and the trial court, by way of imposing the judgment, said the evidence showed that plaintiff had not performed the duties required of him by his employment agreement and the failure to perform these duties amounted to a voluntary relinquishment of his position as police chief on or about December 1972.

The general rule is that a municipal officer may abandon his office and such abandonment constitutes an implied resignation. 62 C.J.S. Municipal Corporations, § 502b. In Herbert v. State Oil and Gas Board, 287 Ala. 221, 250 So.2d 597, the supreme court said that not only may a person resign from his job, but a person may also abandon his job. “Abandonment is a species of resignation and is applicable in cases of voluntary nonuser.”

A modification of this general rule has come about by the adoption of the proposition that mere neglect by a municipal officer to perform his official duties, without an affirmative showing of an intent to abandon the office, will not justify a refusal to pay his salary. Johnson v. Brooks, 139 Ga. 787, 78 S.E. 37; People v. Bradford, 267 Ill. 486, 108 N.E. 732.

Likewise, in State v. Sullivan, 91 Ohio App. 305, 108 N.E.2d 159 and Hirschberg v. City of New York, 294 N.Y. 55, 60 N.E.2d 539, the courts, although espousing the modified rule mentioned above, held that the employee had voluntarily absented himself from his job and was therefore not entitled to receive pay for the period of his absence.

The supreme court in Herbert said that the employee had refused to report for work even after he had been told to do so and this voluntary refusal to work amounted to an abandonment of his job.

In the case at bar the evidence is overwhelmingly to the effect that plaintiff failed to properly perform the duties assigned to him as police chief. The record does not show that plaintiff left the Town of Riverside or that he voluntarily gave up the position for any length of time. He was holding the position of police chief and .was being paid for it but, according to defendants, was not doing it as per instructions. Such conduct does not warrant a finding that plaintiff had abandoned the position of police chief, and there being no abandonment of the position of police chief during the period preceding the date of discharge, i. e. March 3, 1973, plaintiff was entitled to receive the compensation therefor. The trial court committed error in directing that plaintiff repay to the Town of Riverside $1,800 for back salary. Consequently, that aspect of the trial court’s judgment finding for defendants on plaintiff’s complaint is affirmed, and that aspect of the judgment finding for defendants on their counterclaim against plaintiff is reversed and the case is remanded for a judgment to be entered finding for plaintiff on defendants’ counterclaim.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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


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    Ex parte James O. HAYDEN.
    No. 77-76.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


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    The KROGER COMPANY and Frankie Seamons v. Lola Burt PUCKETT. The KROGER COMPANY and Frankie Seamons v. Hazel HARTON.
    Civ. 1081 and Civ. 1082.
    Court of Civil Appeals of Alabama.
    Sept. 28, 1977.
    Rehearing Denied Nov. 2, 1977.

      William E. Shinn, Jr., Decatur, for appellants.
    Miles T. Powell, Decatur, for appellees.
   BRADLEY, Judge.

This is an appeal from judgments rendered against appellants in the Circuit Court of Morgan County. The cases on which this appeal is taken resulted from an alleged shoplifting incident at the Kroger supermarket in Decatur, Alabama.

Briefly, the following sequence of events transpired. On march 18, 1975 the appel-lees, Mrs. Hazel Hartón and her mother, Mrs. Lola Puckett, went grocery shopping at appellants’ store. While in the store, the women’s actions caused a Kroger employee, appellant Frankie Seamons, to suspect that Mrs. Hartón and Mrs. Puckett were engaged in the process of shoplifting various items. As Mrs. Hartón and Mrs. Puckett left the store to return to their automobile, Seamons confronted them with his suspicions and demanded that they show him the contents of their pocketbooks. Both women ignored Seamons’ demands, whereupon he followed them to their car. At appellees’ automobile, Seamons’ demands to examine the contents of Mrs. Harton’s and Mrs. Puckett’s pocketbooks were again refused. As a result of this refusal an altercation occurred in which Seamons grabbed and scuffled with both women in an effort to obtain their pocketbooks. When his efforts to search the pocketbooks were unsuccessful, Seamons returned to the Kroger store and called the police.

Shortly after appellees returned to their home they were confronted by police officers who searched the women’s automobile. This search did not reveal any stolen items. Nonetheless, on the following day Mrs. Har-tón and Mrs. Puckett were called to the Decatur police station where they were arrested and booked on the charge of petty larceny. The women were subsequently tried and found guilty of petty larceny by the Decatur City Recorder. Appellees appealed this conviction to the Morgan County Court. A trial de novo was demanded by the appellees and a jury was impanelled to hear their case.

At the close of the prosecution’s case-in-chief, appellees’ attorney made a motion to exclude the prosecution’s evidence on the ground that there was a fatal variance between the information on which the appel-lees were tried and the proof presented by the prosecution at the trial. This variance was the result of an inconsistency between the information against appellees which alleged that the stolen property belonged to “The Kroger Company, a corporation” and testimony at trial which demonstrated that the property belonged to “The Kroger Co., Inc.” or to “The Kroger Company.” Because of this variance, the trial court granted appellees’ motion and the jury was dismissed without deciding the merits of the case.

As a consequence of the aforementioned events, appellees brought separate civil actions against the appellants. Both Mrs. Harton’s and Mrs. Puckett’s complaint contained two counts. Under count one each woman claimed that appellant Seamons, as an employee of Kroger, had committed an assault and battery against them. Under count two both women alleged that appellant Kroger and its employee Seamons had malicioúsly prosecuted them for petty larceny-

The two actions were consolidated for trial and the case was tried before a jury in the Morgan County Circuit Court.

At the close of the evidentiary phase of the trial, appellants’ attorney made a motion for a directed verdict. This motion sought to prevent the jury from considering the count for malicious prosecution. The trial court denied this motion and the case went to the jury on the count for assault and battery and the count for malicious prosecution. After consideration of both counts the jury rendered a general verdict on behalf of each appellee in the amount of $2,000. From these verdicts Kroger and Seamons appeal.

On appeal, appellants urge that the trial court improperly denied their motion for a directed verdict. Appellants claim that the trial court’s ruling on their motion was in error for two reasons. First, appellants contend that in order to bring a civil action for malicious prosecution, the criminal proceeding upon which the malicious prosecution action is based must have terminated in such a manner as to indicate the innocence of the accused. In this respect, appellants argue that the criminal proceeding upon which appellees’ suit for malicious prosecution was founded ended as the result of a technicality rather than as the consequence of a finding by the trier of fact that the accused persons were innocent. Second, appellants urge that where the plaintiffs (appellees) in a malicious prosecution action have testified that they were “acquitted” of an earlier criminal charge against them thereby suggesting that such charge has been considered on its merits and found deficient, it is error for the trial court to have excluded defense (appellants’) evidence as to the actual manner in which the criminal proceeding has been disposed of.

Appellants’ first contention is based on the proposition that the termination of the criminal proceeding against ap-pellees was not sufficient to permit their action for malicious prosecution. The case of Johnston v. Duke, 284 Ala. 359, 224 So.2d 906, set out the elements necessary to maintain a suit for malicious prosecution in this jurisdiction. The elements required for such an action are: (1) institution or continuation of an original judicial proceeding, either civil or criminal; (2) by or at the instance of the defendant; (3) termination of such proceeding in the plaintiff’s favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceeding; and (6) injury or damage as the result of the prosecution’s complaint. See S. S. Kresge Co. v. Ruby, Ala., 348 So.2d 484.

It is with respect to the third of the .above listed elements that appellants claim error. Appellants urge that the granting of a motion to exclude the prosecution’s evidence at the close of its case-in-chief in a criminal proceeding on the ground that there was a fatal variance between proof at trial and the information against the accused women does not constitute a termination in favor of the accused since the proceeding ended without an indication of the guilt or innocence of appellees. We disagree.

A number of courts in other jurisdictions have taken the view that the criminal proceeding against the accused must have terminated in a manner consistent with the innocence of the accused rather than on the basis of a procedural or technical defect. Oppenheimer v. Tamblyn, 167 Cal.App.2d 158, 334 P.2d 152; Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335; Siegel v. City of Chicago, 127 Ill.App.2d 84, 261 N.E.2d 802. See Restatement (Second) Torts, § 663 and comment d. But this is not the rule in Alabama.

To subject a person to liability for malicious prosecution in Alabama, the criminal proceeding on which such action is based must have terminated in favor of the accused. S. S. Kresge Co. v. Ruby, supra. In order that there may be sufficient termination in favor of the accused it is not necessary that the proceeding should have gone so far as to preclude further prosecution on the ground of double jeopardy. Restatement (Second) of Torts, § 659, comment b.; 52 Am.Jur.2d Malicious Prosecution, § 37. It is enough that the proceeding is terminated in such a manner that it cannot be revived and the prosecutor, if he proceeds further, will be put to a new prosecution. Southern Car & Foundry Co. v. Adams, 131 Ala. 147, 32 So. 503; Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85. This is true, for example, of a discharge by a magistrate at a preliminary hearing because the evidence produced against the accused is not sufficient to warrant his being held for further proceedings to determine his guilt or innocence; the refusal of a grand jury to indict; the formal abandonment of the criminal proceeding by a public prosecutor by an entry of a nolle prosequi; the quashing of an indictment or information by a person of proper authority; or a final order by a trial or appellate court which precludes the bringing of further proceedings against the accused in the particular matter before the court. Restatement (Second) of Torts, § 659, and comments thereto.

Moreover, this rule would seem to encompass any situation where the criminal proceeding against the party is dismissed from court, and thereby terminated so far as that particular prosecution is concerned. See Roughton v. Jackson, 37 Ala.App. 17, 64 So.2d 112. Furthermore, the rule permitting a malicious prosecution action if there has been a termination of the particular prosecution against the accused is applicable even in situations where the discharge by the magistrate, or withdrawal by the prosecution, would not preclude future criminal proceedings against the accused on the same charge. Stewart v. Blair, 171 Ala. 147, 54 So. 506.

In Stewart v. Blair, supra, the plaintiff in the malicious prosecution suit had been discharged of the earlier proceedings against him by a committing magistrate. The defendant in the malicious prosecution suit claimed that only a showing by the plaintiff that the grand jury had refused to indict him would constitute a sufficient termination in favor of the accused. Our supreme court rejected defendant’s contention and held that the discharge by the magistrate, even though he was only a committing magistrate, was a termination of the particular prosecution against the accused and thereby enabled the latter to bring his civil action for malicious prosecution.

In Sandlin v. Anders, 187 Ala. 473, 65 So. 376, a magistrate misconceived the nature of the prosecution against the accused and thus labeled it incorrectly so that it was mistakenly sent to the trial court instead of the grand jury. Later, during the course of the prosecution, the court to which the case was improperly sent struck the case from the docket. On the basis of these facts our supreme court held that the order striking the case from the docket was a sufficient end to the prosecution of the accused to permit his action for malicious prosecution.

The rationale for the position taken in these cases with regard to the final termination question was discussed in Southern Car & Foundry v. Adams, supra. In Southern Car & Foundry appellant contended that there was not a sufficient termination in favor of the accused to permit the latter’s suit for malicious prosecution. Appellant’s claim was based on the fact that the accused had been discharged due to a nolle prosequi rather than by a determination of his guilt or innocence. Our supreme court in rejecting appellant’s contention stated:

“. . . If it be true that the plaintiff must, in order to sustain this suit, aver and prove that the prosecution against him had been ‘judicially investigated,’ in the sense, that the charge preferred against him had been regularly tried by and before the arresting magistrate, and plaintiff, as the result thereof, had been acquitted and discharged, it is manifest, he could not maintain his action for malicious prosecution, although he may have been damaged as much in such case, as if he had been tried and acquitted. ... He would be left, therefore, remediless for what might have been a very great and improper violation of his personal rights. Such a result is not compatible with the law, which professes to furnish a remedy for every wrong. . . . ”

In the present case the accused persons were initially found guilty of the criminal charge. However, they obtained a new trial and at that trial the prosecution was terminated on the basis of a procedural or technical defect. Nonetheless, the dismissal of the case against them terminated that particular proceeding in favor of the women. From the moment of that termination, that particular proceeding against the ap-pellees could not have been revived. If the prosecutor had decided to proceed further, he would have been required to formulate an entirely new prosecution (albeit on the same charge). Thus appellees had a sufficient disposition of the former proceeding against them on which to base their malicious prosecution suit. The trial court did not err in denying appellants’ motion for a directed verdict.

Appellants’ second assignment of error is that the trial court refused to permit evidence by appellants which would have demonstrated that the discharge of appellees in the criminal proceeding was premised on a technicality rather than an actual acquittal as appellees testified in their action for malicious prosecution.

The facts with regard to this matter are as follows. At trial both Mrs. Hartón and Mrs. Puckett were asked by their attorney on direct examination if they had been convicted of the petty larceny charge against them in recorder’s court. Both answered in the affirmative. Next their attorney asked them about the ultimate disposition of their case on appeal to county court. Both replied that they had been acquitted. Appellants made no objection to this testimony. Appellants’ attorney did, however, attempt on cross examination of the appellees to elicit the true manner in which the criminal charge against them had been disposed of. Likewise, upon presentation of appellants’ case-in-chief their attorney sought to introduce oral testimony that the proceeding against appellees had been terminated as the result of a technical defect. On both occasions appellees’ objection to such testimony was sustained by the trial court.

On appeal appellants contend that appel-lees’ statements that they had been acquitted of the criminal charges against them created an erroneous impression in the jury’s mind that appellees had been found innocent of the petty larceny charge brought against them by appellants. Appellants claim that the erroneous impression caused by Mrs. Hartón and Mrs. Puckett induced the jury to believe that appellants lacked probable cause to prosecute the women. Thus, appellants maintain that they should have been permitted to introduce oral testimony, either on cross examination of appellees or through testimony of appellants’ own witnesses, in order to demonstrate that the women were not acquitted, but rather, were released on a technicality. We cannot say from the record or the verdict rendered that appellants are correct in these assertions. We do, however, agree that the trial court erred in refusing to allow the introduction of appellants’ oral testimony.

The best evidence of a judicial proceeding is the record itself, or a copy where copies are admissible or must be used as proof of such records. 29 Am.Jur.2d Evidence, § 480. See Rule 44, ARCP. Similarly, testimony of a court ruling whether verbal, Medlin v. Platte County, 8 Mo. 235, or in writing, McElroy’s Alabama Evidence, § 229.02(3) (3d ed. Samford Univ. 1977), is inadmissible since the record of the court is the best evidence of its official acts. Moreover, our supreme court has taken the view that the court record is the “best evidence” that a prior proceeding has terminated in favor of the party claiming malicious prosecution. Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596.

Thus the appellees’ oral testimony of their “acquittal” was not proper to demonstrate the final termination of appellants’ criminal action against them. However, since appellants’ attorney made no objection to the failure of appellees to adhere to the best evidence rule, the evidence was properly admitted.

On the other hand, when appellants later sought to offer proof by oral testimony, rather than by court records, that appellees had not actually been acquitted of the petty larceny charge, appellees’ attorney made a timely objection and the court refused to permit such testimony.

Although the court’s exclusion of this evidence would have been proper under normal circumstances, it was, nevertheless, in error in this particular instance.

Where one party in the presentation of a case elicits inadmissible evidence from a witness, it is proper for the trial court, under the doctrine of curative admissibility, to permit the opposing party to offer his own inadmissible evidence in order to counterbalance the first party’s evidence. See Sanders v. State, 48 Ala.App. 589, 266 So.2d 797, rev. on other grounds 289 Ala. 224, 266 So.2d 802 (recognizing the doctrine of curative admissibility). And Professor Gamble writing in the new revised edition of McElroy’s Alabama Evidence stated that:

“Curative Admissibility is a doctrine which holds that if a party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence with other illegal evidence. The rule is applicable even if the opponent failed to object to the original illegal or inadmissible evidence.” Id. at § 14.01.

Furthermore, in Manassa v. State, 47 Ala.App. 287, 253 So.2d 356, our court of criminal appeals held that it was proper for the state to offer oral evidence that defendant had a police record where the defendant’s lawyer first asked a question concerning the matter. Thus, when appellees’ attorney introduced oral testimony about the result of a prior judicial proceeding in violation of the best evidence rule, appellants were entitled to rebut this testimony by oral testimony of their own.

Nonetheless, the trial court’s failure to give operation to the doctrine of curative admissibility was not prejudicial to appellants. On appeal, the party claiming error must not only show error by the record, he must also establish that the injury affected his substantive rights. Roughton v. Jackson, supra. In the instant case there was no injury to appellants’ substantive rights.

In view of the fact that the trial court was correct in denying appellants’ motion for a directed verdict on the count for malicious prosecution for reasons which would not have been affected by the introduction of appellants’ evidence, appellants did not suffer injury to their substantive rights by the trial court’s error in failing to give operation to the doctrine of curative admissibility.

There being no prejudicial error to appellants, we affirm.

AFFIRMED.

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

      . A dismissal of an indictment or information because of a variance between the indictment (or information) and the proof submitted at trial will not preclude further proceedings against the accused for the same offense. Pratt v. State, 48 Ala.App. 341, 264 So.2d 571; Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284.

      . Of course, secondary evidence of the contents of judicial records is admissible where it is shown that such records cannot be produced or where they have been lost or destroyed. Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596; McElroy’s Alabama Evidence, supra at § 229.02(3).


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    Otis Percy HUTSON v. Mildred Inez HUTSON.
    Civ. 1194.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.

      Richard O. Fant, Jr., Tuscaloosa, for appellant.
    Walter W. Furner, Bessemer, for appel-lee.
   ON REHEARING

PER CURIAM.

Upon motion by appellant for rehearing the original opinion of the court is withdrawn and the following opinion substituted in lieu thereof.

Appellant, Otis P. Hutson appeals from the denial of a motion for new trial after judgment denying modification of alimony. We affirm.

The parties were divorced on March 30, 1976. In accordance with a written agreement filed with the court, the judgment of divorce provided for payment by the husband of alimony at the rate of $30 per week. It was further provided that the debts of the marriage were to be paid by the husband.

On September 21, 1976, writ of garnishment was issued upon the affidavit of the wife, directed to the employer of the husband in the sum of $450 and costs. Notice of issuance of garnishment was returned showing service upon the husband on September 22. Notice of filing of answer by the garnishee was returned served upon the husband by September 30. Return of each notice was made by a deputy sheriff of Tuscaloosa County. On October 13,1976, at the request of counsel for the husband, counsel for the wife filed a motion to reduce the percentage of wages to be withheld by the employer under the garnishment from 33V3% to 25%. The court granted the motion.

On December 9,1976, the husband filed a petition to modify the judgment of divorce. He alleged that he was unable to pay the alimony, and that he was unemployed at the time the judgment for alimony was entered; that the court should have verified his ability to pay before granting alimony; that the wife was employed and self-supporting and did not require alimony.

The wife answered and requested an increase in alimony, with request for general relief.

After oral hearing, the court denied the petition of the husband to modify the provisions for alimony, proceeded to determine the amount of accrued and unpaid alimony and render judgment therefor. It condemned the sum of $254.92 paid in by the garnishee. Costs and attorney’s fee in the sum of $200 were ordered paid to the wife. We find no ruling on the motion to dismiss the garnishment.

The husband moved for a new trial. New trial was denied after hearing.

Counsel for the wife in response to this appeal and the one and one-fourth page argument by the husband in brief, charged that this appeal was frivolous. The case was originally submitted on brief. Subsequently, counsel for appellant husband filed written request for suspension of the appellate rules and permission to orally argue the case. This court granted the request and set the case for oral argument on Tuesday, August 30, 1977 at 2:00 P.M. Counsel was thereafter notified via telephone by the clerk of the court that argument was changed to the morning session on August 30. Counsel was advised to be present not later than 9:30 A.M. Court convened as scheduled at 9:00 A.M. on August 30. Counsel for appellee was present and announced ready. Counsel for appellant was not present. At 10:30 A.M. counsel for appellant still was not present. Counsel for appellee made a brief statement and the case was submitted. At approximately 11:00 A.M. the clerk received a phone call from counsel for appellant stating that he was in Prattville, Alabama, with a flat tire. He was informed that the case had been submitted and court had adjourned.

We have related these events preparatory to stating that the court finds this appeal to be frivolous, without reasonable grounds in the record and the law and with minimal effort at presentation of argument in brief. In addition, the abuse of the process and time of this court, and of opposing counsel, by failure to timely appear at oral ai’gument after special accommodation therefor, cannot be permitted without discipline. We shall address that matter at the conclusion of this opinion.

The appellant submitted as a ground for new trial that he had never been personally served with notice of the garnishment. Such ground was improper. That issue was not presented by the petition for modification of the former judgment of divorce. That was the ground for the motion to dismiss the garnishment. These were two separate actions. As previously stated, we find no record of any ruling on the motion to dismiss the garnishment. If there had been such ruling, it was a matter totally separate from the petition for modification. The ruling on that motion would not be a ground for a new trial after judgment on the petition for modification.

However, the record showed issuance of notice by the clerk and return showing service by a deputy sheriff of Tuscaloosa County. Such return is prima facie evidence of service. Rule 4.1(b)(3) ARCP. The denial of service by appellant merely presents an issue of fact for the court. The return of the sheriff is supported by the successful effort of counsel a few days thereafter to secure a reduction in the percentage of wages withheld. Clearly, appellant had notice of the garnishment prior to that action. The finding of fact by the trial court after oral hearing is presumed correct on appeal. Metcalf v. Metcalf, 340 So.2d 38 (Ala.Civ.App.1976).

Issues 2 and 3 relate to alleged error in the granting of alimony in the original judgment of divorce. That judgment is not subject to attack via a petition to modify filed six months thereafter, nor via an appeal from judgment on the petition to modify-

Issues 4 and 5 are not argued in brief, but merely restated. They are not sufficiently in compliance with Rule 28, ARAP to be worthy of consideration. However, issues 4 and 5 have been settled by our response to issue 1.

The issue of whether the wife was entitled to alimony was determined in the original judgment. It is not subject to attack after expiration of time for appeal, but only to modification upon a showing of a material change in the circumstances of the parties. There was no reporter’s record made of the hearing below. The only record of evidence was prepared by the court under Rule 10(d) ARAP. We find no evidence of a material change of circumstances requiring a modification of the original award of alimony.

With the adoption of the new appellate rules of procedure, this court has carefully bent every effort to reach and consider the merits of every appeal. However, there is a limit to our forbearance of failure of counsel to assist in our effort. We are burdened with too many meritorious appeals brought by able and conscientious counsel, to permit our time to be consumed by frivolous appeals, totally lacking in merit. It is neither fair to this court, appellee and counsel, nor to those cases from which our attention is diverted.

It is only after much consideration and after determination that this appeal is frivolous that we award double costs to appel-lee under Rule 38 ARAP and further assess penalty against counsel for appellant in the sum of $50 under Rule 34(d) ARAP. Such penalty is to be paid to counsel for appellee as payment of expenses incurred in appearing for oral argument requested by counsel for appellant and at which he failed to timely appear.

AFFIRMED.

All Judges Concur.


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    John E. LUKER and Charles E. Cox v. Robert E. PERRY and Charles Cummings, Jr.
    Civ. 1150.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.

      George K. Williams of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellants.
    James P. Smith of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment for plaintiff, Robert E. Perry, after suit upon a bond for a temporary injunction executed and filed by defendants pursuant to Title 7, § 1043, Code of Alabama (1940) (Recomp. 1958). We affirm.

In 1972, Cox and Perry, Inc., a corporation, brought an action against Robert E. Perry and Charles Cummings, Jr. seeking declaration of a resulting trust in favor of Cox and Perry, Inc. in the receipts to be derived by Perry from a business transaction he had entered while president of the corporation. A temporary injunction was obtained ancillary to the suit requiring that funds derived from the transaction to the credit of Perry be held until judgment in the suit. Cox and Perry, Inc. with Charles E. Cox and John Luker as sureties entered into bond in the amount of $5,000 payable to Perry and Cummings and conditioned upon payment of all damages incurred by them upon dissolution of the injunction.

Demurrer filed by Perry and Cummings to the suit was overruled. After answer, the matter was heard upon the merits and judgment was entered for defendants. The injunction continued in effect from March 1972 until final judgment and affirmance by the Supreme Court of Alabama on June 18, 1976. The total sum accumulated and withheld from Perry was $125,000.

The suit from which this appeal comes was brought by Perry, with Cummings apparently subsequently added as a plaintiff by amendment. The case was submitted to the trial court, sitting without benefit of jury, upon stipulation and the testimony of Perry as to his damages. Judgment was entered in favor of Perry for $5,000.

The first issue presented is whether recovery may be had in .a suit on a temporary injunction bond, when there was no dissolution of the injunction by ruling upon demurrer as to equity in the bill or upon motion to dissolve, but judgment was entered in favor of the defendants upon the merits of the suit.

We repeat a portion of what we said in the case of Union Springs Telephone Company v. Green, 47 Ala.App. 427, 431, 255 So.2d 896, 900 (1971): “The right of action on the bond is conditioned only upon a legal dissolution of the injunction. It matters not whether such dissolution comes upon a motion to dissolve or a hearing upon the merits.” Our statement there is dispos-itive of the identical issue here.

The next issue presented is whether the person restrained is required to mitigate his damages while under restraint.

The answer to the issue is in the affirmative. However, whether one mitigates damages is a question of fact. Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960); 22 Am.Jur.2d, Damages, § 339. There was testimony from Perry as to how and when the withheld funds were invested in a certificate of deposit from which interest was realized. The court heard the evidence as to damages and mitigation orally and it could have determined that Perry made a reasonable effort to mitigate his damages. The conclusion of the trial court under such conditions is presumed correct and this court is unable to determine that it is not supported by the evidence and is plainly erroneous. Louisville and Nashville R.R. v. Harris Transfer Co., 293 Ala. 121, 300 So.2d 378 (1974).

The last issue is whether the sums paid as attorney fees in the trial of the case on the merits were recoverable as an element of damages. In this case, we find that attorney fees as proved by the evidence are not recoverable as damages. The rule as to recovery of attorney fees in suits upon injunction bonds is stated in the case of McGraw v. Little, 198 Ala. 553, 73 So. 915 (1917). That rule appears to say: If injunc-tive relief is not the sole or principal purpose of the bill, but is only incidental thereto, only fees which are incurred in procuring the dissolution of the injunction itself are recoverable. We consider that the meaning of the holding in McGraw is that there must have been fees incurred in an effort to secure dissolution prior to a trial of the suit on its merits. The theory advanced by appellee as to the right to recover attorney fees for the defense of the case on its merits is original, but not convincing.

In any event, there was undisputed testimony that Perry incurred more than $5,000 in damages as a result of not having the restrained funds to use for living expenses.

The judgment of the court is therefore supported by the evidence.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . However, Cummings did not testify as to any damages suffered, and the court entered judgment only in favor of Perry. Therefore, Curh-mings is not considered a party for purposes of this opinion.

      . Let it be recognized that we spoke in Union Springs as we do here. Our statement relates to a temporary injunction ancillary to a suit whose principle purpose is other than the injunction or its perpetuation.

      . Under the circumstances, we do not decide that mitigation of damages in this case was required as a matter of law.


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    The CITIZENS BANK, a corporation, v. Donald E. ROUTH and Mary L. Routh.
    Civ. 1188.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.
    J. G. Speake, Moulton, for appellant.
    William L. Chenault, III, Chenault & Chenault, Decatur, for appellees.
   BRADLEY, Judge.

This appeal is the result of a judgment for fraud and misrepresentation which was rendered against the appellant in the Circuit Court of Limestone County.

Appellant (The Citizens Bank of Moulton, Alabama) contends that the jury verdict awarding damages to appellees (Donald and Mary Routh) was improper in both its form and substance. Specifically, appellant claims that the jury verdict rendered against it was improper for two reasons: (1) the form in which the jury rendered its verdict demonstrates that the jury failed to follow the instructions of the trial court; and (2) the jury’s verdict incorrectly apportioned damages between appellant and its co-defendant at trial in violation of the rule prohibiting contribution between joint tort-feasors.

This appeal arose out of the following events. In June of 1974 appellee Donald Routh contacted Johnny Appleton, a contractor, about the possibility of the latter making certain additions and repairs on Routh’s home in Athens, Alabama. After Appleton provided Routh with an estimate of the cost of such an undertaking, the two men entered into a contract in which Appleton promised to make the necessary repairs and additions on Routh’s home.

When Routh was unable to obtain a loan with which to finance the work contracted for, Appleton suggested that Routh seek a loan from The Citizens Bank of Moulton. Routh had never dealt with The Citizens Bank before; however, he agreed to apply to that bank for a loan. Appleton then took Routh to The Citizens Bank and introduced Routh to the bank’s president, Wayne Gentry. After preliminary negotiations which lasted several weeks, Routh obtained a construction loan from the bank in the amount of $9,000.00.

At the loan closing on July 23, 1974 Gentry issued two checks to Routh. The first check was for the sum of $1,004.00. This check was made payable to Associates Capital Financing. The proceeds of the check were used to pay off the mortgage held by Associates Capital on Routh’s home. The second check was made payable to Donald E. Routh. This check was for the sum of $7,996.00 and it represented the balance of the loan which Routh had obtained from Citizens Bank. Upon receipt of these checks, Routh delivered a mortgage on his home to Citizens Bank to secure payment of the loan. In addition, Routh endorsed and assigned the check made payable to him to Johnny Appleton “for deposit only in the account of Johnny Appleton.” Gentry then issued a third check which was made payable to Johnny Appleton and directed Routh to deliver the check to Appleton. The third check was for the sum of $2,000.00. The $2,000 was to pay Appleton for the first phase of construction on Routh’s home although that phase had not been completed at the time of the loan closing.

The testimony at trial was in sharp conflict about other events which allegedly transpired at the loan closing between Citizens Bank and Routh. Routh testified that he told Gentry (the bank president) that he (Routh) wanted the loan proceeds placed in a holding account so that Routh could approve the distribution of payments to Appleton as the latter’s work progressed. Gentry denied that there was any discussion of a holding or escrow account at this meeting, claiming that Routh authorized the bank to place the loan proceeds directly into an account held by Appleton.

Gentry further contended that Routh’s endorsement on the back of the $7,996 check made payable to Routh was evidence of such authorization. Routh claimed that he endorsed the check because Gentry had assured him that the bank would obtain Routh’s approval before issuing any further checks to Appleton.

Citizens Bank subsequently deducted an additional $2,000 from the remaining loan proceeds (which had been deposited in Appleton’s account) in order to offset past due notes which Appleton owed to the bank. At the conclusion of this transaction, $3,996.00 of the $7,996.00 in loan proceeds which the bank controlled ($9,000 loan minus $1,004 payment to Associates Capital) remained in Appleton’s account.

Although Appleton received both cash and credit (on the past due notes) from Citizens Bank as a result of Routh’s loan, Appleton did not complete any phase of construction work on the home of Mr. and Mrs. Routh. Indeed, testimony at trial indicated that the work which was done was either left unfinished or of such poor quality that it actually reduced the value of the Rouths’ home.

As a consequence of the aforementioned events, Donald and Mary Routh filed a civil action against Appleton and The Citizens Bank of Moulton in September of 1974. The first count of the Rouths’ complaint was against Johnny Appleton for breach of contract. The second count of the complaint sought a judgment, jointly or severally, against Appleton and Citizens Bank for fraud and misrepresentation in regard to the financing of the construction work which Appleton failed to perform for the Rouths. The third and final count contained in the complaint sought a judgment, jointly and severally, against Appleton and Citizens Bank for specific performance of the contract between Routh and Appleton.

Apparently the case was tried on all three counts; however the court charged the jury only as to the first two counts of the complaint, and the jury rendered one general verdict solely against Appleton, and another general verdict solely against Citizens Bank. From the latter verdict Citizens Bank appeals.

Citizens Bank bases its appeal on the proposition that a jury is required to adhere to the instructions of the trial court even though such instructions are erroneous, Tombrello v. McGhee, 282 Ala. 408, 211 So.2d 900; Piedmont Fire Insurance Co. v. Tierce, 245 Ala. 415, 17 So.2d 133; Copeland v. Benson Hardware Co., 24 Ala.App. 127, 131 So. 1, and, pursuant to this proposition it claims that the jury ignored the instructions of the trial court in the rendition of its verdict.

The facts with regard to this matter may be summarized in the following manner. Appellees’ action was tried on three counts: count one alleged breach of contract and involved only Johnny Appleton; count two charged that Citizens Bank and Appleton were jointly and severally liable for fraud and misrepresentation; count three was identical to count two except that it sought specific performance against Appleton and the bank. ■

At the close of the case the court first gave its instruction concerning the count for breach of contract. Then the court gave the following instructions on the fraud and misrepresentation count:

“. . . In the second part of their suit they sued Mr. Appleton and the Citizens Bank of Moulton both, claiming that the two practiced a fraud upon them and that they were misled and damaged as a result of this fraud. .. . . Then you will have to decide whether or not Appleton and the bank in this case or either one of them practiced any fraud on the Rouths, and if so, were they damaged and how much were they damaged as a direct result of the fraud. .
“. . . You will have to measure the evidence in this case by all of these definitions and principles and determine for yourself whether or not you are reasonably satisfied from the evidence in this case that either one of these Defendants has practiced a fraud upon the Plaintiffs and whether or not they were damaged thereby, and if so, how much. . You have to determine how much it would take to punish the offender for his or its wrongful act and to set an example to the public to deter such actions in the future. Now, I hasten to say that you would do that only if you find that a Defendant or Defendants are guilty of fraud. .
“. . .1 charge you that under the status of this case as it goes to you, . [y]ou may or may not find a verdict against both of these Defendants for fraud or you may or may not find a verdict against either of them separately. That depends on your view of the evidence. If after considering all of the evidence in the case you reach a conclusion that the verdict should be against both Defendants, then after you have determined the amount of damages, the form of your verdict would be, ‘We, the jury, find for the Plaintiffs and we set the damages at blank dollars,’ . If you determine that the verdict ought to be against Appleton alone, whether for breach of contract or for fraud, the form of your verdict would be ‘We, the jury, find for the Plaintiffs against the Defendant Appleton and we set the damages at blank,’ . . . . If you find from the evidence in this case a verdict against the bank alone, the form would be ‘We, the jury, find for the Plaintiffs against the Defendant Citizens Bank and we set the damages at blank dollars.’

The case then went to the jury on the first two counts in appellees’ complaint and the jury rendered the following verdicts:

“We, the jury, find for the plaintiffs against the defendant, Appleton, and we set the damages at $6,000.00.”
“We, the jury, find for the plaintiffs against the defendant, Citizens Bank, and we set the damages at $8,000.00.”

Appellant claims the jury ignored the above quoted instructions by rendering separate judgments against Appleton and Citizens Bank — each judgment being for a different amount. This claim seems to be based on appellant’s conclusion that the jury found against both defendants on appellees’ second count for fraud and misrepresentation. Consequently, appellant argues that only one verdict against the two parties could be rendered. Moreover, from these conclusions appellant reasons that the jury’s action in rendering two verdicts instead of one constituted an apportionment of damages between the two parties and thereby violated the well-established rule prohibiting contributions between joint tortfeasors. However, we disagree with appellant’s contentions.

On at least three occasions in its instructions to the jury the court informed the jury that its members would have to decide whether or not Appleton and Citizens Bank, or either one of them, defrauded the Rouths. This instruction was entirely proper. Sloss-Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 165 So. 764; Hubbard v. Thrasher, 26 Ala.App. 252, 157 So. 680. Furthermore, the instructions by the trial court demonstrate that the jury was given the option of rendering one verdict against both defendants (for fraud and misrepresentation) or a separate verdict against each (for fraud and misrepresentation by Citizens Bank and for breach of contract by Johnny Appleton). The jury obviously determined that the facts of the case warranted the latter choice. Otherwise, it would have returned a joint verdict against the defendants in accordance with the trial court's charge. Accordingly, the use of separate verdicts by the jury was in complete compliance with one of the alternatives provided in-the trial court’s instructions. Thus, the jury did not, as appellant contends, ignore the court’s instructions.

It is an established principle that error will not be presumed on appeal. Butler v. Olshan, 280 Ala. 181, 191 So.2d 7. In order for a party to complain of error he must show it affirmatively from the record, otherwise the presumption will be that the decision of the trier of fact is correct. Butler v. Olshan, supra. Moreover, a party cannot be permitted to speculate on the results of a court’s instruction or claim error with regard thereto without an affirmative showing that such an instruction was ignored by the trier of fact or caused an improper verdict. See City of Decatur v. Finley, 221 Ala. 101, 127 So. 518.

In the instant case, appellant speculates that the trial court’s instructions were ignored. However, as stated earlier, the court’s instructions were not ignored nor were the judgments rendered improper in form or substance. Furthermore, there is nothing before us which would demonstrate that both Appleton and Citizens Bank were found guilty of fraud and misrepresentation. Indeed, the jury apparently determined that Appleton was innocent of fraud and thus based their judgment against him upon his failure to perform construction work on the Rouths’ home. Such being the ease, Appleton and Citizens Bank can hardly be said to be joint tortfeasors. Likewise, the separate verdicts rendered against Appleton and Citizens Bank did not constitute an apportionment of damages between them on the fraud count, but rather, these verdicts represented separate awards of damages based on two entirely different counts.

We conclude that the jury followed the trial court’s instructions and that the use of separate verdicts by the jury was correct. Therefore, we affirm.

AFFIRMED.

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

      . Such a procedure is customary since a bank may properly take money deposited in a bank customer’s account and use that money to offset debts owed to the bank by the customer. However, the issue at trial was whether or not the bank fraudulently deposited the loan proceeds into the account held by Appleton thereby creating a situation in which the bank could effectuate the offset which occurred.

      . Alabama Pattern Jury Instruction 37.05:
      “VERDICT AGAINST ALL DEFENDANTS
      “If, after a full and fair consideration of all the evidence you are reasonably satisfied therefrom that the plaintiff is entitled to recover against all of the defendants, then you should use the form of verdict which reads:
      “ ‘We, the Jury find in favor of the plaintiff and against all of the defendants and assess the plaintiffs damages at _ dollars ($-).’ ”


text:
    W. H. DIAL and Louise Dial v. Bobby H. GRAVES and Bonnie L. Graves.
    Civ. 1196.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.
    James F. Berry, Cullman, for appellants.
    J. Wilfred Tucker, Cullman, for appellees.
   WRIGHT, Presiding Judge.

Plaintiffs brought action for breach of contract for failure to construct a house in a good and workman-like manner and for breach of an express warranty. Judgment was for plaintiff. Defendants appeal. We affirm.

The evidence was that plaintiffs purchased a newly constructed home from defendants in July 1973. Defendants admit in their answer that there was an express warranty covering defects in the home for one year. After purchasing and moving into the house, plaintiffs assert that many defects appeared, such as water leaking into the basement, leaking plumbing, warped doors, mildewed walls and leaks in the roof. Cost of repairing the 16 defects noted was estimated to be over $2,000. Judgment was granted for $1,428.16.

Defendant’s first issue on appeal is that the sale was controlled by the principle of caveat emptor. We fail to see how that principle is applicable in this case. This action, so far as we can determine, was not brought upon an implied warranty of fitness, but upon breach of contract and an express warranty. Defendants cite the recent case of Cashion v. Ahmodi, 345 So.2d 268 (Ala.1977) as support for the issue. Our study of that case discloses no similarity to any issue raised by this ease. The cause of action in Cashion was one for fraud and deceit and not for breach of warranty. Even if the action here were for breach of an implied warranty of workmanship and habitability, the principle of caveat emptor was removed as a defense in such cases by the holding of this court and of the Supreme Court in the case of Cochran v. Keeton, 47 Ala.App. 194, 252 So.2d 307, aff’d on cert. 287 Ala. 439, 252 So.2d 313 (1972).

Defendant next contends that by moving in, accepting the house and signing a statement that no defects were noted, plaintiff waived defective performance. That is not the law. Mere acceptance and occupation alone does not constitute a waiver. Aubrey v. Helton, 276 Ala. 134, 159 So.2d 837 (1964). Acceptance of a structure could not waive latent defects of which there was no notice. Fike v. Stratton, 174 Ala. 541, 56 So. 929 (1911). The testimony in this case was that most of the defects did not appear for several months. Whether they were latent or patent in character was a question of fact for the court sitting without a jury. We view the finding of the court as to all questions of fact with a presumption of correctness. Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712 (1966). That presumption is strengthened by refusal of the trial court to grant a new trial. Shiver v. Barrow, 45 Ala.App. 495, 232 So.2d 676 (1970).

Contrary to the contention of defendants in their last issue presented, the evidence is more than sufficient to support the judgment. The judgment must stand.

AFFIRMED.

BRADLEY and HOLMES, 33., concur.

      . We fail to find a copy of that warranty or any written contract containing a warranty.

      . We have already noted that defendant admits there was a one-year warranty, though we are not informed by the record of its terms. Under such circumstances, we must presume that the admitted warranty was sufficient to support the action and the liability found by the court.


text:
    George J. MITCHELL v. STATE of Alabama.
    Civ. 1203.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.

      B. Pratt Gasque, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, Asst. Atty. Gen., Bill Thompson, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellee, State of Ala.
   WRIGHT, Presiding Judge.

Taxpayer appeals from an order by the Mobile County Circuit Court dismissing his appeal to that court of a final assessment for sales taxes. We affirm.

The Alabama Department of Revenue made an assessment against Taxpayer for sales taxes due of $1,600, plus $400 penalty and $60 interest. Taxpayer protested. The protest was denied. Final assessment was made on January 28,1977, in the amount of $2,068. Pursuant to Tit. 51, § 140 of the Code of Alabama (1940) (Recomp.1958) and Tit. 51, § 786(17)(a), Code of Alabama (1940) (Recomp.1958) (Supp.1973), Taxpayer filed a timely notice of appeal with the Register of the Circuit Court. He mailed a notice of appeal to the Secretary of the Alabama Department of Revenue on February 28, 1977. It was received on March 3, 1977.

The State moved to dismiss on the ground that notice of appeal was not filed with the Department of Revenue within thirty days of the final assessment as required by § 140. The motion was granted and the appeal dismissed with prejudice.

Tit. 51, § 786(17)(a) of the Code of Alabama (1940) (Recomp.1958) (Supp.1973) provides that a taxpayer dissatisfied with the final assessment of sales tax may appeal in all respects in the same manner provided by Tit. 51, § 140. Section 140 provides

“If any taxpayer against whom an assessment is made by the department of revenue ... is dissatisfied with the final assessment as fixed by the said department of revenue ... he may appeal from said final assessment . . to the circuit court of the county in which the taxpayer resides ... by filing notice of appeal with the secretary of the department of revenue and with the register of the circuit court of the county to which the appeal shall be taken within thirty days from the date of said final assessment made and entered on the minutes of the department as is required by law . . . .”

Taxpayer contends that he has never received notice that the final assessment was “entered on the minutes of the department,” and this failure of notice prevented the running of the thirty-day period. Although § 786(16) requires the Department in all cases to “notify the taxpayer of the assessment as finally fixed,” the commencement of the thirty-day period in § 140 is merely hinged on the fact of the making of the assessment and its being entered upon the minutes of the department. It is not disputed that Taxpayer received a copy of the final assessment.

Taxpayer contends that the State’s motion to dismiss should not have been granted since it does not specifically appear in the complaint or in the Final Assessment Notice, nor was it alleged in the motion to dismiss that the final assessment was ever “entered on the minutes of the department.” By the terms of the statute, if the assessment has not been entered in the minutes, the time has not yet run for invoking the jurisdiction of the circuit court on appeal. However, we do not consider that the “entering on the minutes” provision requires a formal entry in a book of minutes comparable to that of corporate meetings. There is no indication that the Department has ever kept such “minutes.” “Minutes” may be viewed as simply “the written memoranda of the assessment of the . . . tax.” Howell & Graves, Inc. v. Curry, 242 Ala. 122, 5 So.2d 105 (1941). The final assessment and the official notice thereof received by Taxpayer are permanent records of the department and are “minutes” sufficient for the statute. See City of Talladega v. Jackson-Tinney Lumber Co., 209 Ala. 106, 95 So.2d 455 (1923).

Taxpayer argues that his notice of appeal was timely filed because of ARCP 6(a) and 6(e). He contends that since February 27 fell on a Sunday, and he received his Notice of Final Assessment by mail, these rules operated to permit filing with the Department as late as March 3, when the notice of appeal was in fact received by them. Not so. Compliance with the procedures of § 140 is a jurisdictional requirement. “The jurisdiction of a court must be invoked in the manner and within the time required by statute. . . . The right of appeal from a final assessment of the revenue department of the state is purely statutory and must be exercised in the manner and within the time prescribed therein.” State v. Empire Bldg. Co., 46 Ala.App. 565, 567, 246 So.2d 454, 456 (1971). To apply the Alabama Rules of Civil Procedure so as to find an external exception to the jurisdictional time requirements of § 140 would constitute an impermissible extension of jurisdiction and modification of substantive rights. State v. Ladner & Co., 346 So.2d 1160 (Ala.Civ.App.1977).

“The Rules of Civil Procedure apply to proceedings in courts. Hence, the rules applied to the proceeding once it had been instituted in the Circuit Court of Mobile County. However, the rules do not provide the mechanism by which a party may invoke the jurisdiction of the court.” Id. at 1161.

Even if the Rules did apply to the jurisdictional mechanism of § 140, Rule 6(e) could not be used to make timely Taxpayer’s appeal. This rule grants the additional three days where an act must be done within a prescribed period after service of a notice or other paper on him. Taxpayer objects that such interpretation would violate procedural due process, since the period might run on a taxpayer before he receives notice of the final assessment. Taxpayer in this case is not in a position to complain since he received notice by mail in ample time for him to take his appeal.

Taxpayer also contends that § 140 is ambiguous in that the phrase “within thirty days from the date of final assessment” might pertain only to filing with the register of the circuit court or it might pertain to filing with both the register and the Department of Revenue. The statute is not ambiguous; to give it the former meaning would require a taxpayer to file with the Department as a jurisdictional prerequisite to his appeal, but provide no time period within which he must do so, an unnatural and illogical result. Further, case law unequivocally states that filing with the Department must be accomplished within thirty days. Dowda v. State, 274 Ala. 124, 145 So.2d 830 (1962); State v. Empire Bldg. Co., supra.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Rule 6(a) provides that, in computing periods of time, where the last day of the period is a Saturday, Sunday or legal holiday, the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Rule 6(e) provides that where a party is required to do some act within a prescribed period after the service of a notice or other paper on him and the notice is served on him by mail, three days are added to the prescribed period.