author: BEATTY, Justice.

text:
    Samuel Myer JACOBY, etc. v. E. P. BELL, et al.
    78-20.
    Supreme Court of Alabama.
    April 27, 1979.

      Taylor D. Wilkins, Jr., of Wilkins & Bankester, Bay Minette, for appellant.
    James R. Owen, of Owen, Ball & Wills, Bay Minette, for appellee, E. P. Bell.
    Michael J. Salmon, Gulf Shores, for ap-pellee, First Southern Federal Savings and Loan Assn, of Mobile.
   BEATTY, Justice.

This was an action to set aside a 1971 deed on the ground of forgery. The lower court entered an order 1) dismissing the complaint and 2) dismissing the counterclaim and cross-claim as moot. We reverse and remand.

Samuel Myer Jacoby, by and through his mother and next friend, Mary F. Jacoby, brought this action to set aside an allegedly forged deed. The warranty deed, purportedly executed in 1971 by his parents, Sam and Mary F. Jacoby, and his uncle, Rudolph Jacoby, gave title in certain valuable real estate to defendant, E. P. Bell.

In 1973 Sam and Mary F. Jacoby were divorced. In the preceding litigation the deed’s validity was disputed but, at least between those parties, put to rest in favor of the document’s authenticity.

Sam Jacoby died in 1976 leaving the minor plaintiff as his heir. The mongoloid child is in the custody of his mother and next friend, Mary F. Jacoby.

After this action was instituted against defendant Bell, First Southern Federal Savings and Loan Association (First Southern) intervened as Bell’s mortgagee of the property. The plaintiff amended his complaint to add as defendants First Southern and also Christine W. Hammonds, Administra-trix of Sam Jacoby’s estate. Thereafter First Southern filed a counterclaim and cross-claim praying that the plaintiff and cross-defendant, Hammonds, be made to execute conveyances of the subject property.

After discovery the case was tried and on September 20, 1978 the complaint was dismissed and the plaintiff timely filed his notice of appeal.

The dismissal with prejudice of this plaintiff’s complaint operated under Rule 41(b), ARCP as an adjudication upon the merits. Therefore in reviewing the trial court’s disposition of this case we must determine, as in any other non-jury judgment, whether the dismissal was supported by the evidence. See Strickland v. Nati. Gypsum Co., Ala.Civ.App., 348 So.2d 496 (1977); Long v. Cone, 542 F.2d 751 (8th Cir. 1976).

The defendants/appellees argue that our determination must be governed by two very substantial presumptions. The first presumption is that in favor of the validity of an acknowledged instrument. In Thompson v. Mitchell, Ala., 337 So.2d 1317 (1976), this Court citing Chapman v. Turner, 255 Ala. 423, 51 So.2d 867 (1951), stated that

One seeking to have a deed declared invalid must show by clear and convincing evidence the facts relied upon to demonstrate the invalidity; and that party seeking to have the deed set aside bears the burden of proof. .

Although the trial court did not make written findings of fact which Rule 41(b), ARCP hints would be helpful in such a case, it is apparent that the trial court was not convinced the plaintiff met this burden. The defendants argue that this conclusion is bolstered by the second presumption they urge upon us, that of Hill v. Delchamps Food Stores, 294 Ala. 14, 310 So.2d 871 (1975):

[Wjhere the record shows that a case is tried by the court, without a jury, and judgment rendered absent special findings of fact, or a request therefor, the conclusion of the trial judge will be affirmed unless clearly erroneous, or manifestly unjust, if fairly supported by credible evidence under any reasonable aspect.

From a review of the record we hold that the evidence presented by the plaintiff did indeed overcome the first presumption and show forgery with the required clarity. So too the second presumption must fall. The rule of Hill, supra is not irrebuttable. Where the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed. This, as the evidence below will illustrate, is the case sub judice:

The plaintiff’s next friend, Mrs. Mary F. Jacoby, testified that she had not signed, nor had she authorized anyone to sign her name to, the alleged deed or any other deed when she was married to Sam Jacoby, although the deed was dated while they were married. Further, she testified that she was familiar with the signature of Sam Jacoby having seen it hundreds of times, and the signature on the deed was not that of Sam Jacoby.

Mr. Lamar Miller was then brought to the stand as a handwriting expert. He testified that his training in handwriting identification and questioned documents was obtained at a one-year training school in Georgetown University, Washington, D. C. and that he had done considerable work in handwriting identification for law enforcement as well as testifying in state and federal court for some five years. Mr. Lamar stated that by comparing known samples of handwriting with handwriting under question a trained examiner of questioned documents could determine the authenticity of the questioned signatures. He further testified:

Q [Mr. Wilkins] What other signatures of Sam Jacoby and/or Mary Frances Ja-coby did you use to compare the signatures of those two individuals that you have depicted up there as being the signatures on the deed in question?
A [Mr. Miller] I examined about seven or eight signatures of Sam Jacoby, plus other examples of his writing.
Q Were there any differences in those signatures and the signature here?
A Yes, sir. There are a number of differences.
Q Would you point those differences out to the Court?
A The primary difference, of course, is that the slant of the handwriting — the slant on the deed is more upright. In some cases it appears to be slanted slightly to the left, whereas in the known standards of Sam Jacoby the handwriting slants to the right. Forehand slant is fairly constant. There are also differences in the actual formation of the letters — the way they rest on the line and also the way they relate to each other. This is a closer view of the first sample as it appears on the deed and also the name “Sam” as it appears on the return address. One of the most obvious differences is the manner in which the letter “s” is formed in the known handwriting. In the known handwriting the letter “s” is slanted left to right.
Q How were the other signatures, in-so-far as the “s” is concerned, in comparison with the “s” with the dot beside it?
A All the known signatures are consistent with the known signatures. They are totally inconsistent with the signature of the deed.
Q In your professional opinion would you say that is a slight difference?
A No, sir. I do not consider that a slight difference. I consider it a significant difference.
Q Would you point out any other features you consider to be contrary to the signature beside the red dot?
A The last name “Jacoby” begins with the letter “J.” Mr. Jacoby’s “Js” are quite consistent. Large bottom, loop and short top loop, and squared at the top, and is consistent with his known signatures. The “J” on the deed is not consistent with the known signature of Sam Jacoby. The “J” is rather uniform in the top and bottom loops and doesn’t contain this bottom loop and the top is not the same.
Q Any other features you want to point out?
A Well, the “b” in the word “Jacoby” in the deed, the questioned material, is slanted or more upright in nature, whereas in the known handwriting standards it slants towards the right. The terminal “y” stroke slants more to the right in the signature from the deed, whereas in the known signature it slants more to the left. There are also other differences throughout, but these are the most glaring differences you can see.
Q Were these documents you compared executed along about the same time as this deed?
A I would have to check the dates. I think this Sam Jacoby from the Sears account is several years older than perhaps some of these other signatures.
Q These all follow the same pattern, do they not?
A Yes. I have some as old as in the mid thirties, and they are consistent with that we are seeing here from the 1970s.
Q Would you put up on that slide Mrs. Jacoby’s signatures?
A The bottom signatures on the slide that we are viewing right now are known signatures of Mrs. Sam Jacoby. The top signature with the red dot, once again, is the Sam Jacoby signature from the deed in question. And you can see that there are differences in the execution of the Sam Jacoby signature on the deed and Mrs. Sam Jacoby. The difference in the “s" once again. .
Q Let me interrupt you, if you don’t mind. Go on to the slide where she signs her given name and married name.
A This is it.
Q Point out the differences there.
A The signature at the top is the Francis Jacoby signature from the deed in question. The bottom is Mary F. Jaco-by’s signature. And there are obvious differences between the questioned signature and the known. The slant is different. The signature slants further to the right on the top than the bottom or the known signature. There is a difference in the “J” in the Jacoby name from the “J” used in the Frances or Mary F. Jaco-by signature.
Q How many signatures of hers did you use to compare and what instruments did you use to take those from?
A The signatures on this slide are from checks, and I examined probably eight to twelve of her known signatures also off of checks and various documents executed in the normal course of business.

On cross-examination, Mr. Lamar admitted that all of the known signatures of Mrs. Jacoby were signed Mary F. Jacoby and that these were compared with the questioned signature of Frances Jacoby.

On redirect-examination Lamar was asked his opinion based upon his education and background and experience and work on this particular deed on whether the signatures of Sam Jacoby and Frances Jacoby are the actual signatures of these people?:

A [Mr. Miller] It’s my opinion that the Sam Jacoby signature on the deed in question was not written by Sam Jacoby, the author of the standards, and the Frances Jacoby on the deed in question was not written by the author of the signatures as the known Mrs. Jacoby.

On re-cross the witness was shown for the first time a check purportedly endorsed by Sam and Budolph Jacoby and asked to examine it:

Q [Mr. Owen] All right, sir. Now, just from that short examination do you have an opinion as to who endorsed this check — whether or not Sam Jacoby endorsed that check?
A [Mr. Lamar] I’m just not going to make an examination on the witness stand. If you want me to take it back and examine it. .
Q You cannot make one?
A Not in this short length of time.
Q That is what I’m asking you. You don’t have an opinion, is that correct?
A That’s right.

At this point Mrs. Jacoby was recalled to the stand by the plaintiff and testified that she signs her name, Mary F. Jacoby, not Frances Jacoby. On cross Mrs. Jacoby agreed with counsel that the name on the deed was “Francis” but she does not spell her name with an “i.”

The defendants then presented their case:

Appellee Bell, the grantee, testified that he was present and witnessed Sam Jacoby sign the deed in question. He, however, could not identify the appellant’s next friend Mary F. Jacoby as the woman who signed the deed with Sam Jacoby.

Rudolph Jacoby, the brother of the deceased Sam Jacoby, when asked whether the signature, “Sam Jacoby,” written on the deed appeared to be that of his dead brother, stated “I imagine so.” On cross-examination, however, the following exchange took place:

Q [Mr. Wilkins] You don’t know whether Sam signed this deed or not, do you?
A [Rudolph Jacoby] I don’t remember that. But he didn’t have to sign no deed for me to sell the property.
Q Who signed Sam’s name?
A I don’t know.
Q Who signed Mrs. Jacoby’s name?
A I don’t know. The fact is I never saw her in the case at all.
Q She wasn’t there the day you signed, was she?
A No.

The attorney in whose office the closing took place stated his belief that the persons present at the execution of the deed were the signatories, Mary Steirs (now Mrs. Mary McGuff) who was his secretary, Mr. E. P. Bell and himself. When asked however if he saw each of the gentlemen (Rudolph and Sam Jacoby) sign the deed, he answered “Mr. Owen, I don’t have an independent recollection where I can say I saw Mr. Whoever — Mr. Sam Jacoby or Mr. Rudolph Jaco-by sign it at that time at that place.” Still later on direct examination the following exchange took place:

Q [Mr. Owens] Did you know Mrs. Frances Jacoby?
A [By the attorney] I can’t say that I do. I thought I did.
Q Is that the lady sitting here at this table?
A I can’t say. I honestly can’t say that right now I remember what either Rudolph or Sam Jacoby looked like.
Q But you did know them at that time?
A Yes sir.

Mrs. Mary C. McGuff (formerly Mary C. Steirs) testified that she worked for the lawyer at the time of this transaction and identified her signature as that of the Notary Public on the deed in question. She testified that it was office procedure that the signatories be there for her to acknowledge it. She stated thereafter however that she had no personal recollection of the transaction. On cross-examination the record shows the following:

Q [Mr. Wilkins] They didn’t have any other identification they showed you, I assume, that you would recall since you have told Mr. Salmon the circumstances under which you took this acknowledgement?
A [Mrs. McGuff] That’s right.
Q They didn’t show you any separate identification, did they?
A No. We didn’t require any.

Because of our holding above we need not discuss the plaintiff’s contentions of further error.

Defendant First Southern argues in effect that the 1973 divorce action between Sam and Mary F. Jacoby put to rest the issue of the deed’s validity and thus the bar of res judicata supports the trial court’s action in dismissing the complaint independent of the weight of other evidence. We disagree. In Quinnelly v. City of Prichard, 292 Ala. 178, 291 So.2d 295 (1974), this Court stated the elements which must be met to establish such a bar:

To sustain a plea of res judicata the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment be returned on that point, [citations omitted]

In this case the threshold requirement of same parties is missing. Therefore this argument is untenable.

Pursuant to our holdings above the judgment must be reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Dwight SMITH v. AMERICAN CAST IRON PIPE COMPANY, a corporation.
    78-26.
    Supreme Court of Alabama.
    April 27, 1979.

      Carl E. Chamblee, Birmingham, for appellant.
    Robert F. Childs, Jr., Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal by Dwight Smith from a grant of summary judgment in favor of American Cast Iron Pipe Company (ACIP-CO).

Smith was employed by ACIPCO in 1969. On October 3, 1977, three suspicious cigarette butts were found in Smith’s automobile which was parked in ACIPCO’s parking lot. Later that morning Joe F. Curtis, the manager of Employment Safety and Security at ACIPCO, interviewed Smith regarding the discovery. As a result of this meeting disciplinary action against Smith was recommended.

On October 12, 1977, Smith met with the Investigative Committee of the Board of Operations. This subcommittee of the ACIPCO Discipline Committee is composed of four members elected by their fellow employees. The Investigative Committee, which investigates all disciplinary charges brought against employees of ACIPCO, read to Smith the letter from Curtis alleging violations of Company Rules 16 and 17. These_mles-dealt--respectiyely with the pos-session_qf_and_.‘itraffickmgu^in-=;-drUg51 Smith admitted only that the substance was in his car and denied specifically that he was guilty of a Rule 17 infraction, which unlike a first violation of Rule 16, carries a penalty of discharge. On the advice of his attorney however Smith refused to take a polygraph test. The meeting was adjourned without further action. Later that morning Smith met with the Committee again and at that meeting he was read a September 22, 1977 clarification of ACIP-CO’s verification rule that provided for the dismissal of any employee who failed to cooperate with the investigation committee, including one who refused to take a polygraph test when required. Smith indicated that he was aware of the notice because he had seen it on the company bulletin boards. He still refused however to take the polygraph test. Thereafter Smith was informed that the Committee had scheduled a polygraph exam for the next day. Smith reported as directed, but once again he refused to be examined even though he was again read the rule and told of the consequences for refusal to comply. Later that morning the full Discipline Committee was convened. The minutes of that meeting reflect that “[u]pon review of [the] facts . Mr. Carter made a motion to discharge Dwight Smith for failure to cooperate in the Discipline Committee’s investigation of alleged rule violations, including failure to take the polygraph test when requested. Mr. Langner seconded the motion. The vote for discharge was unanimous.”

Smith filed suit for injunctive relief, declaratory relief and damages. After a hearing, ACIPCO’s motion for directed verdict was granted. Smith then filed an amendment alleging breach of contract and fraud. This appeal arises from the grant of ACIPCO’s motion for summary judgment.

A motion for summary judgment may be granted only when the movant has carried his burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Mason v. Connecticut General Life Insurance Co., Ala., 367 So.2d 1374 (1979); Board of Water and Sewer Commissioners of the City of Mobile v. Alabama Power Company, Ala., 363 So.2d 304 (1978); Powell v. South Central Bell Telephone Co., Ala., 361 So.2d 103 (1978).

This case presents essentially three issues, (1) whether Smith was in fact discharged for a failure to cooperate in the Discipline Committee’s investigation; (2) whether there was a failure to cooperate under the terms of the contract; and (3) whether discharge for that offense was proper under our law. We answer all issues affirmatively-

The official minutes of the October 13, 1977 meeting of the Discipline Committee show that the appellant, Smith, was discharged for a failure of cooperation. Smith, however, refers us to testimony which he contends created an issue of fact on this matter. On direct examination the following exchange took place between Smith’s attorney and Mr. Alex Fitts, an employee member of the Discipline Committee:

Q Okay. What is your understanding of the charges against Dwight Smith?
A He was charged with Rule 16 and 17.
Q Is that your total understanding of the charges against Dwight Smith?
A Yes, sir.

Later another employee member of the Discipline Committee, Mr. Luke Walker, was questioned by Smith’s attorney:

Q Mr. Walker, as a member of the investigating group, as a member of the Discipline Committee, what is your understanding of the charges that were brought against Mr. Dwight Smith in which he was terminated?
A What is my understanding of the charges?
Q Yes, sir.
A My understanding is that he violated Plant Rules.
Q What rule, sir?
A Rule 16, I know.
Q Is that all, sir?

At this point the counsel for appellee objected, apparently to the line of questioning on the ground that the reason for discharge was reflected in the minutes of the meeting. The court sustained the objection. The evidence, however, was not excluded from the record and hence is properly before us. Nevertheless, from a review of the record, including the complete testimony of both the above persons, we do not find that a genuine issue of material fact is presented. The underlying charges against Dwight Smith were indeed violations of Rules 16 and 17. The cause of the discharge however was clearly a failure to cooperate in the investigation of those charges. Nothing in the testimony of Mr. Fitts, or Mr. Walker presents a scintilla of evidence that Smith was not discharged unanimously for this reason. Therefore we must determine whether Dwight Smith did indeed fail to cooperate.

ACIPCO relies only upon the refusal of Smith to take the polygraph test to show the failure of cooperation. Polygraph, or “lie detector,” tests have been used by ACIPCO for investigative purposes since 1971. The appellant had once taken the test in the course of an investigation and been found to be lying, which he has since admitted to be the case. The basis for such an examination is found within the company handbook:

VERIFICATION
When reports and information furnished to the Discipline Committee are conflicting, a Polygraph test may be used to assist the Discipline Committee in making a fair decision on the matter. Only licensed Polygraph technicians will be used. Two members of the Discipline Committee (One employee representative from the Discipline Committee and one Management representative) will accompany those to be tested to furnish background and other information required by the Polygraph technicians in conducting the test. Wherever by Polygraph test or other means of verification the Discipline Committee finds that an employee has deliberately reported false information to the Committee, the penalty will be doubled. Any accusation determined to be false by the Discipline Committee through the use of Polygraph tests or other means of verification will be removed from the employee’s record.
These rules and penalties may be abrogated or changed by the Company, [emphasis added]
The above rules, so long as in effect, will be enforced by the Company, and any employee violating any of the rules will be subjected to disciplinary action of not less than the minimum penalty above specified.

On September 22, 1977, prior to the incidents in question, a clarification of this provision was approved by the Board of Management:

POLICY CLARIFICATION PLANT RULE VIOLATIONS— VERIFICATION
The following change has been made to the first paragraph of the VERIFICATION section pertaining to our Plant Rules and Regulations.
This is no change from the basic intent.
The revision is simply a clarification of wording for more positive understanding.
When reports and information furnished to the Discipline Committee are conflicting, a Polygraph test may be required to assist the Discipline Committee in making a fair decision on the matter. Only licensed Polygraph technicians will be used. Two members of the Discipline Committee (one employee representative from the Discipline Committee and one Management representative) will accompany those to be tested to furnish background and other information required by the Polygraph technicians in conducting the test. Whenever by Polygraph test or other means of verification the Discipline Committee finds that an employee has deliberately reported false information to the Committee, the penalty will be doubled. Any accusation determined to be false by the Discipline Committee through the use of Polygraph tests or other means of verification will be removed from the employee’s record. Opportunity is provided for any employee to clarify his innocence by Polygraph test. Refusal of an employee to cooperate with the investigative procedure of the Discipline Committee, including the refusal to take a Polygraph test when required, shall be reasonable cause for discharge, [emphasis added]

Under the plain wording of the verification provisions as clarified we hold that a refusal to take a polygraph test when one is required is a failure to cooperate. Smith argues however that an examination was not required in this situation and therefore his refusal was not a failure to cooperate. We disagree. The verification provisions as clarified state that a polygraph test may be required “[w]hen reports and information furnished to the Discipline Committee are conflicting . . . .” In this instance Smith clearly denied a violation of Rule 17, and, while he admitted the marijuana was in his automobile, Smith did not clearly admit guilt under Rule 16. In fact, in brief counsel states that,

[ajppellant was charged on mere suspicion through observation of “what appeared to be two marijuana cigarette butts in the ash tray” of an unoccupied car. Appellee concedes that the use of marijuana per se off-premises of ACIPCO is not a violation of its rules .
The record therefore is questionable both on the fact of “use and possession” and whether the suspicious looking objects were punishable as to any employee.

We hold that there was a conflict on these facts for which the Discipline Committee could require a polygraph test under its rules. Under the terms of the verification provisions then, Smith did fail to cooperate when he refused to take the polygraph test. This leads us to the third question, whether discharge for that failure to cooperate was proper.

We hold that ACIPCO’s discharge of the appellant was proper once his failure to cooperate was shown. This follows because the penalty for such an offense is clearly stated in the clarified verification provisions to be discharged. Instances where such a penalty has been upheld are numerous. Swope v. Florida Industrial Com. Unemployment Comp. Bd. of Review, Fla.Dist. App., 159 So.2d 653 (1963); Bowman Transportation, Inc., 61 L.A. 549 (1973); Warwick Electronics, Inc., 46 L.A. 95 (1966); Allen Industries, Inc., 26 L.A. 363 (1956). Smith however properly raises some collateral issues which he contends made discharge improper.

First, the appellant contends that the penalty was improper because the employees were not given “notice” of the “clarification” until October 4, 1977, one day after the “substance” was discovered in his automobile. This argument ignores the fact that Smith was not discharged for possession of the proscribed substance. In this case Smith was discharged for failure to cooperate in refusing to take the polygraph test. The first refusal of the test was on October 12, 1977 several days after the “clarification” was posted. Further, Smith admitted that he had read the clarification on the bulletin board and knew the consequences for its violation. The Discipline Committee itself read the “clarification” to Smith not once but twice. There is no question but that Smith knew of the clarification and the penalty for its violation prior to his refusal.

Secondly, Smith argues that the polygraph requirement should be void as repugnant to public policy. He bases this argument upon various constitutional protections afforded an accused in a criminal case. That argument is untenable. In a criminal situation the protections are constitutional, aimed at protecting an individual’s freedom from the power of the state. In the private employment situation the protections are contractual, and are aimed solely at regulating the employment relationship. See e. g., Allen Industries, Inc., supra at 368. In the ACIPCO community a contractual precondition to discharge is that the employee be found to have violated one or more of the established plant rules. See Duff v. ACIPCO, Ala., 362 So.2d 886 (1978). The record shows .that the contract of employment between the appellant and ACIPCO provided for discharge in this situation. Thus the analogy offered by the plaintiff has no application here.

Because ACIPCO carried its burden of establishing no genuine issue of fact the trial court’s grant of summary judgment must be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON and SHORES, JJ., concur.


author: PER CURIAM.

text:
    In re Haywood T. MOSS and John White v. Caron HAYES and Faye Wheat, a/k/a Faye Wheat Hayes, jointly, separately and severally. Ex parte Haywood T. Moss and John White.
    78-110.
    Supreme Court of Alabama.
    April 27, 1979.
    William S. Shulman and Herbert P. Fei-belman, Jr., Mobile, for petitioners.
    Edward P. Turner, Jr., and Marc E. Bradley, Chatom, for respondent.
   PER CURIAM.

The exact issue presented in this petition for writ of mandamus has been decided in two opinions recently released. Ex parte City of Huntsville Hospital Bd., 366 So.2d 684 (Ala.1978), and Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala. 1978). On the authority of those cases, the petition for writ of mandamus is granted and the trial judge is directed to withdraw and vacate his order transferring this case to the Circuit Court of Washington County.

WRIT GRANTED.

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


author: JONES, Justice.

text:
    Shelley O. DUNCAN v. Michael I. KENT, et al.
    78-202.
    Supreme Court of Alabama.
    April 27, 1979.
    Leon Garmon, Gadsden, for appellant.
    W. F. Horsley, of Samford, Denson, Hors-ley & Pettey, Opelika, for appellees.
   JONES, Justice.

Shelley 0. Duncan filed suit against Michael I. Kent, Carl E. Maye, Thomas S. Melton and Guy F. Gunter, III (lawyers), and Morris T. Acreman claiming abuse of process in connection with the prosecution of a suit by Acreman against Duncan in which Acreman was represented by the lawyer defendants.

Defendants’ motion for summary judgment, supported by the affidavit of Michael Kent, was granted; hence, this appeal.

Because Plaintiff relies upon his complaint and the affidavits attached thereto in opposition to Defendants’ motion, an examination of the complaint and the counter-affidavits is essential to the disposition of the single issue presented: Whether the pleadings and affidavits raise a genuine issue of material fact.

On February 18, 1974, Michael Kent, as attorney for Acreman (and a member of the law firm of Maye, Melton, Kent & Gunter), filed suit against Phillip Duncan, alleging that Acreman was injured in an automobile accident caused by the negligence of Phillip Duncan.

On May 1, 1974, Kent amended Acre-man’s complaint by adding Shelley Duncan as a party defendant, alleging that Phillip Duncan was the son of Shelley Duncan; that Shelley Duncan entered into an agreement with Acreman to pay the expenses and damages incurred by Acreman as a result of Phillip Duncan’s negligence. Appellant says the act of Kent and Acreman in amending the lawsuit to add Shelley Duncan as a party defendant was malicious, wrongful, and without probable cause.

By affidavit attached to his complaint, Shelley Duncan denies being personally served with a copy of the complaint making him a party defendant to the Acreman lawsuit.

Plaintiff contends it was a perversion of process to make him a party defendant in the lawsuit by Acreman because the contract made the basis of the suit was not in writing, and thus was void as violative of the Statute of Frauds. In furtherance of this contention, Plaintiff alleges that default judgment was entered against Duncan in the suit brought by Acreman on December 13, 1974; that Acreman proved damages and judgment was entered in the amount of $2,236.70; that a writ of execution was issued to enforce the judgment against Duncan on July 25, 1977; and that later Duncan’s automobile was seized. Plaintiff also alleges that taking the default judgment on December 13, 1974, was a perversion of process, and Kent’s refusal to “drop” the writ of execution against Duncan was willful, intentional, and wanton.

Affidavits on behalf of Plaintiff’s claim disclose:

Shelley Duncan, in addition to denying receipt of service of a copy of the complaint in the lawsuit against him by Acreman, also testified that he never entered into a written agreement with Acreman to pay the expenses and damages suffered by Acre-man as a result of the accident involving Acreman and Phillip Duncan.

Danny Tilley testified, that he is deputy sheriff of Etowah County, Alabama. He says that one Ronnie Cox was a process server for the Etowah County Sheriff’s Department in 1974, and he succeeded Cox as a process server. He says that he found a number of papers in Cox’s car which had allegedly been served by Cox, when in fact no service had been perfected. (He does not identify the Acreman suit as one of those not served.)

Bill Willis testified that he is employed in the Security Department of Republic Steel Corporation, and he is a qualified deputy sheriff authorized to serve summonses and complaints on employees of Republic Steel Corporation. He says that he can find no record reflecting service of any summons and complaint on Shelley Duncan during the month of May, 1974. Willis has no knowledge of whether Duncan was served at some place other than Republic Steel Corporation.

The Defendant Kent’s affidavit is the only evidence in support of Defendants’ Motion for summary judgment. Kent testified that he is an attorney practicing in Opelika, Alabama. Acreman employed Kent in February of 1974 to recover damages he sustained in an automobile accident with Phillip Duncan. Kent filed suit against Phillip Duncan in the Circuit Court of Lee County, Alabama, on February 18,1974. On May 1, 1974, Kent amended the complaint, adding Shelley Duncan as a party defendant — stating a cause of action against Shelley Duncan in contract — and alleged that Shelley Duncan entered into an agreement to pay the damages sustained by Acreman in his accident with Phillip Duncan. The sheriff’s return shows that personal service was perfected on Shelley Duncan on May 14, 1974.

Shelley Duncan made no appearance in the lawsuit, and default judgment was taken on December 13, 1974. Kent appeared with Acreman in the Circuit Court of Lee County, Alabama, and proved damages in the amount of $2,236.70; and judgment was entered in Acreman’s favor in the amount of $2,236.70.

On July 25, 1977, execution issued out of the Circuit Court of Lee County to seize property of Shelley Duncan to satisfy the default judgment against him. The return on the writ of execution reflects that property belonging to Shelley Duncan was seized pursuant to the execution on July 26, 1977.

Shelley Duncan filed a motion to set aside the default judgment against him on November 18, 1977, and this motion was denied on December 2, 1977. Duncan filed a motion to reconsider this order which was denied on January 27,1978. On appeal, the Court of Civil Appeals affirmed the order of the trial court denying the motion to set aside the default judgment, and ordered Duncan to pay the judgment plus ten percent damages, interest, and costs' of appeal.

Kent testified that Duncan was made a party to Acreman’s lawsuit because of his contractual obligations to pay the damages suffered by Acreman in the automobile accident. Default judgment was properly entered against Duncan when he failed to appear, and execution was issued to enforce the judgment.

Abuse of process implies the malicious and wrongful use of process regularly and rightfully issued; it is the malicious perversion of a regularly issued process to accomplish a purpose whereby a result not lawfully or properly obtainable under it is secured. Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986 (1912). To maintain an action for abuse of process, existence of ulterior purpose must be proved. Clikos v. Long, 231 Ala. 424, 165 So. 394 (1936); see, also, Dillon v. Nix, 55 Ala.App. 611, 318 So.2d 308 (1975). For example, a party who uses the worthless check act for debt collecting purposes may be subject to a suit for abuse of process. Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975); see, also, Hotel Supply Co. v. Reed, 16 Ala.App. 563, 80 So. 137 (1918). Similarly, if an attachment plaintiff, knowing there is due a certain sum, and, with such knowledge and for an ulterior purpose of injuring the defendant, makes out an affidavit for a much larger amount, his action would amount to an abuse of process. See Clikos v. Long, supra.

1 Am.Jur.2d Abuse of Process, § 13 states:

“. . .If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse However, if the suit is brought, not to recover on the cause of action stated in the complaint, but for a collateral purpose, there is an abuse of process.”

Appellant in the present case admits that it is his theory that Appellees committed an abuse of process by filing a lawsuit against Appellant when Appellant had a valid Statute of Frauds defense. As the foregoing discussion shows, the action of Appellees in the prosecution of their damage and contract claims does not amount to an abuse of process. The lawsuit was confined to its regular and legitimate function in relation to the cause of action stated in the complaint. The lawsuit was not brought for some ulterior or collateral purpose.

Simply put, this action is nothing more than an attempt to collaterally attack a final valid judgment in which all rights of appeal have been exhausted. It is well settled that a judgment of a court which has jurisdiction of the subject matter and parties and possesses the power to render the particular judgment is immune from collateral attack. Jordan v. Guaranty Pest Control, Inc., 292 Ala. 601, 298 So.2d 244 (1974). There is no genuine issue of material fact raised by the pleadings and proof. A purely legal question has been answered correctly by the trial Court’s order granting Defendants’ motion for a summary judgment.

AFFIRMED.

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


text:
    Dorothy Irene MURDOCK, a Minor, by and through John L. Lawler, her duly authorized and Acting Guardian Ad Litem v. Mary Margaret Belhomme MURDOCK, as Administratrix of the Estate of Walter B. Murdock, Jr., Deceased.
    78-34.
    Supreme Court of Alabama.
    April 27, 1979.

      John L. Lawler (Guardian Ad Litem), and Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for Dorothy Irene Murdock, a Minor.
    Joseph M. Matranga, Mobile, for Mary Margaret Delhomme Murdock, widow/ad-ministratrix.
   JONES, Justice.

The issue presented: Did the trial Court err in its order exonerating Mary Margaret Delhomme Murdock, as Administratrix of the estate of Walter B. Murdock, deceased, from liability resulting from the negligent acts of her attorneys? We answer the question, “No”; and we affirm.

The facts giving rise to this appeal are as follows:

On June 29,1970, Walter B. Murdock was killed in Bayou LaBatre, Alabama, while working on a boat. A few days after his death, his widow, Mary Margaret Del-homme Murdock, retained a Louisiana law firm to sue for the wrongful death of her husband. Suit was filed in the United States District Court for the Southern District of Alabama, Southern Division, naming as defendants Texas Urethanes, Inc., and C. & C. Service Applicators. The plaintiffs named in that case did not include Dorothy Irene Murdock, Appellant in this case. Dorothy Murdock is the minor daughter of Walter B. Murdock by a prior marriage.

The Federal Court ordered the Louisiana lawyers to have Mary Margaret Delhomme Murdock, the widow, named as Administra-trix of the estate of Walter B. Murdock; to amend the complaint accordingly; and to associate local counsel. Although a Mobile attorney was retained by the Louisiana law firm to file the Petition for Letters of Administration in the Probate Court of Mobile County, Alabama, the Louisiana lawyers failed to comply with the order to amend, and on February 22, 1972, the suit was dismissed with prejudice.

A second lawsuit was filed by the Louisiana lawyers in Austin, Texas. This lawsuit was dismissed on the 11th day of February, 1975, by order of the Federal Court in Texas, holding that the first case was dismissed with prejudice on the merits, and operated as res judicata to bar this attempted subsequent suit.

Upon learning of the dismissal of the case in Texas, Ms. Mary Margaret Delhomme Murdock contacted a Mobile lawyer concerning legal action against the law firm which had prosecuted the two prior suits. A malpractice lawsuit against these lawyers was filed in Federal Court in Mobile on May 26, 1976. On October 15, 1976, the Court granted a Petition for Leave to Intervene on behalf of Velma Murdock (Walter B. Murdock’s first wife), and Dorothy Irene Murdock, and Walter B. Murdock, III, the two children from the prior marriage.

In June, 1977, the lawsuit against the Louisiana lawyers was settled as to all parties for $60,000. The order of final settlement, entered by the probate court, allowed attorney’s fees plus expenses in the prosecution of the negligence action.

This appeal is taken from the Mobile County Circuit Court’s order of September 5, 1978, which order adopted and approved the Mobile Probate Court decree on final settlement of the estate of Walter B. Mur-dock.

Contentions of the Parties: The Guardian Ad Litem, on behalf of the minor heir, contends that it was improper for the Probate Court to charge her share of the estate with attorney’s fees incurred in the prosecution of the legal malpractice action by the Administratrix/Appellee against the New Orleans law firm hired by her to prosecute the wrongful death claim on behalf of the estate.

Appellant contends that the law in Alabama is settled that the Administratrix of an estate is a trustee and that the employment of agents (including attorneys at law) does not relieve the trustee from personal responsibility for the proper administration of the estate, and that the trustee is personally liable for the negligence of agents employed by the trustee. Appellant argues that the negligence of the Louisiana firm has been conclusively established and that such negligence is imputed to the Adminis-tratrix/Appellee.

Appellee contends that the issues raised by this appeal are factual in nature and were fully litigated and, therefore, the ore tenus rule should apply. Appellee argues that there has been no adjudication of the Louisiana lawyers’ negligence and that, even if the negligence of that firm were shown, it would not be imputed to an ad-ministratrix who acts diligently and in good faith.

The Applicable Law: The law applicable to the dispositive issue here presented, at least in the abstract, is well settled. It is premised on the long-established rule regulating fiduciary conduct in the employment and management of an agent, as stated in 31 Am.Jur.2d Executors and Administrators § 219:

“An executor who is a layman has the right to rely upon the advice and counsel of an attorney unless the situation is one where common prudence would require a layman to do otherwise.
“If due care is exercised in the selection and employment of an attorney or agent, the executor is not absolutely bound by dereliction of the attorney or agent. In other words, a representative is ordinarily not personally liable for loss chargeable to his lawyer’s negligence, misconduct, or nonfeasance, if due prudence was exercised in the selection of the lawyer. But the representative may not surrender all the duties of his trust or delegate all his functions to the attorney without becoming responsible to the dis-tributees for losses caused by the attorney’s conduct. And estate losses due to misconduct of an agent are chargeable to the personal representative where he has failed to give the attention to the activities of the agent that a reasonable person would have given under similar circumstances. Thus, an administrator who permits an attorney to collect and retain for several years money of the estate without any effort to recover it from the attorney is liable for loss to the estate due to misappropriation of the funds by the attorney.”

This rule, by its very terms, precludes the administrator’s vicarious liability under the doctrine of respondeat superior. Liability is not to be imposed upon an imputed negligence or no-fault concept. Rather, it is a due care and diligence standard to be tested against that degree of care, skill, and diligence that an ordinarily prudent person would exercise under like circumstances in his own affairs, but he is not an insurer or guarantor. In re Mild, 25 N.J. 467, 136 A.2d 875 (1957); and on second appeal, 31 N.J. 215, 156 A.2d 257 (1959).

With the possible exception of Louisiana (see Succession of Hess, 205 So.2d 74 (La. App.1967), this personal fault-based rule of an administrator’s or executor’s liability for dereliction of the fiduciary’s lawyer appears to be universally recognized throughout the United States. To be sure, there are numerous cases that held liability where the administrator’s personal and total abdication of legally imposed fiduciary responsibilities was found to be equivalent to gross carelessness or indifference to duty. For a collection of these cases, as well as those cases imposing no liability, see 28 A.L.R.3d 1191.

The Alabama Court, in the 1868 case of Abercrombie v. Skinner, 42 Ala. 633, following the general rule, imposed liability, stating:

“. . . If an attorney collects money for a trustee, and he permits it to remain in the hands of the former for so long a time as was done in this case [over six years] without any effort to collect it, the court should charge him with it.”

The Illinois Court of Appeals, in Rotchford v. Rotchford, 284 Ill.App. 262, 1 N.E.2d 249 (1936), applying the general rule to facts virtually identical to the instant case, absolved the administrator of liability, reasoning that as soon as the administrator learned of his lawyer’s dereliction, he recovered a judgment against the lawyer. Thus, concluded the Rotchford Court, the administrator had met the test in exercising as much fidelity and care as an ordinarily prudent man would exercise in the discharge of his own affairs.

Here, while the Administratrix was charged with pursuing the wrongful death action, the wrongdoing (i. e., the negligence of the New Orleans lawyers in allowing the suit to be dismissed with prejudice) was purely legal in its nature and character. That the intricacies of the law and the procedures incident to filing a claim for wrongful death are matters necessitating the expertise of one trained in the law goes without saying. Had the widow of the deceased been capable of having herself appointed as Administratrix, and then filing her own wrongful death claim in that capacity, she would have had no need for a lawyer in the first instance. These are not matters within the knowledge and common experience of laypersons; and Ms. Mur-dock’s conduct in this respect cannot be regarded as negligence in the management of her lawyer’s activities in handling this aspect of the administration of her deceased husband’s estate. Additionally, her good faith and diligence are evinced by her pursuit of the malpractice claim against her New Orleans lawyers.

Appellant makes no claim that the Ad-ministratrix was negligent in the selection and hiring of her first lawyer. Therefore, the trial Court correctly exonerated the Ad-ministratrix from liability arising out of her lawyer’s negligent handling of the wrongful death action.

AFFIRMED.

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

      . Indeed, Louisiana may not be a true exception because the Hess Court, while imposing strict liability under a statute, found that “. . . the Administrator entrusted and surrendered all custody, control and administration [to the lawyer], without limitation or question.”


author: HOLMES, Judge.

text:
    REPUBLIC STEEL CORPORATION, a Corporation v. Vester KIMBRELL.
    Civ. 1554.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Rehearing Denied March 7, 1979.
    T. Thomas Cottingham, Birmingham, for appellant.
    Richard Y. Roberts, Tuscaloosa, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case.

After an ore tenus hearing, the trial judge found that the employee sustained a permanent partial disability as a result of a work-related accident and awarded compensation. The employer appeals. We affirm.

The record reveals the following: The employee worked in the employer’s underground coal mine as a roof bolt pinner. He installed support pins in the roof of mine shafts. He is fifty-four years old, married and the father of six. Prior to his employment with Republic Steel, he was a manual laborer. He has no other skills or job training and has a fourth grade education. In September, 1975, a rock fell from the roof of the mine shaft in which he worked, striking him on the right foot causing multiple and compound fractures.

The employee was hospitalized initially for thirteen days, at which time the lower leg was placed in a cast. He wore the cast for nine months. Since September of 1975, he has been repeatedly hospitalized for up to two weeks at a time. He has had surgery on his foot at least three times. He has been under the constant care of orthopedic surgeons.

Based upon these facts, the learned judge found that the employee, in his partially disabled condition, “suffered and sustained a permanent decrease in his earnings capacity to the extent of 30.9% or in his partially disabled condition, he is able to earn 69.1% of his average weekly earnings at the time of said accident.” The court awarded compensation and the employer appealed.

The dispositive issues on appeal are (1) whether the trial court’s decree, as a matter of law, substantially complied with the requirements of the Code of Ala.1975, § 25-5— 88, in that the court’s findings of fact and conclusions of law were legally sufficient and (2) whether there is evidence to support the court’s finding that the employee’s injury is a permanent partial disability to the body as opposed to an injury to a specific body member.

Able counsel for the employer, who has favored this court with an excellent brief, contends that the court’s order is fatally defective because it fails to state the law applicable to the case as required by the Code of Ala.1975, § 25-5-88. Specifically, it is contended that the order must state the section of the Workmen’s Compensation Act upon which the recovery is based rather than a general statement that the controversy is governed by the Act. We do not agree.

Section 25-5-88 provides essentially that the judgment of the trial court shall contain a statement of the law applicable to the case, the facts as they relate to the law, and the resulting conclusions. Code of Ala.1975, § 25-5-88. This court has held that substantial compliance with this section will suffice. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974); Henderson v. Johnson, 49 Ala.App. 191, 269 So.2d 905 (1972).

Contrary to the employer’s assertion, there is no requirement that the decree must expressly state the relevant provisions of the Act upon which recovery is granted. Henderson, supra. As Judge Bradley stated in Henderson:

No doubt it would be helpful to this court if the trial judge in his judgment would cite the applicable section of Title 26, Code of Alabama 1940, as Recompiled 1958 which he deemed controlling of his decision . . . . However, where it has been stated . . . that this case is a workman’s compensation case, that plaintiff’s injury is compensable under said law, and a determination of the amounts due to be paid for the injury has been made pursuant to said law, we deem this a substantial compliance with that portion of Section 304 requiring the trial judge to file a statement of the law. 49 Ala.App. at 198, 269 So.2d at 911.

Without setting forth the text of the instant decree, our review of the order clearly indicates that it substantially includes all the requisite information mandated by § 25-5-88. The decree includes, among other matters of law and fact, a statement that the case is governed by the Workmen’s Compensation Act of Alabama. It further provides that as a result of the employee’s work related injury, the employee sustained a 30.9% permanent decrease in his earning capacity. Given these and the court’s other relevant findings, we hold that the instant decree meets the requirements of Code of Ala.1975, § 25-5-88.

Furthermore, the best that can be said regarding the employer’s contention that the findings of fact and conclusions of law in the decree do not satisfy § 25-5-88 is that these findings and conclusions may be “meager and omissive.” Even assuming ar-guendo that the “meager and omissive” doctrine does apply, as noted above, our examination of the record indicates that the order musters the requirements of the statute. Henderson, supra.

The employer next contends that the judgment is not factually supported by the record. With regard to this contention, it is argued that the evidence fails to support a finding that the employee sustained a permanent partial disability to any part of his body other than his right foot. As a consequence, the employer maintains recovery should have been limited to the 139 week period authorized by § 25-5-57(a)(3)a.l4 for loss of a foot.

This court is not unfamiliar with the issue. As we stated in Richardson Homes Corp. v. Shelton, Ala.Civ.App., 336 So.2d 1367, 1369 (1976):

The problem of injury and award therefor to a specific member of the body . versus an injury and award to the body as a whole pursuant to § 279(c)(6) has been discussed by the appellate court of this state on numerous occasions. . . . Suffice it to say that our courts have held that even though the injury is to a scheduled member, if the effects of such injury extend to other parts of the body, and produce a greater or more prolonged incapacity than that which naturally results from the specific injury, then the employee is not limited in his recovery to the amount of allowed for the member in the schedule. (Citations omitted.)

In addition, under our standard of review in workmen’s compensation cases, this court will not weigh the evidence. Fairfax Mfg. Co. v. Bragg, Ala.Civ.App., 342 So.2d 17 (1977). Instead, if there is any legal evidence to support the findings of fact of the trial court, those findings will not be disturbed on appeal. Dan River Mills, Inc. v. Foshee, Ala.Civ.App., 365 So.2d 1232 (1979). As set forth below, our review of the record indicates that there is evidence to support the conclusion that, though the injury was to a scheduled member, the effects of the injury produced “a greater or more prolonged incapacity than that which naturally results from the specific injury.” Richardson, supra.

The employee testified that the ankle causes him constant pain and becomes swollen after short periods of standing. He cannot stand for extended periods, lift heavy weights or apply pressure on the injured foot. He can walk but only with extreme difficulty. At times, fluids drain from the infected area inside the ankle.

The employee further stated that because he cannot perform any labor which involves prolonged pressure on his foot, he is no longer able to work at any of the jobs which he had in the past. He testified that he has no other skills. His incapacity is such that he is unable to accomplish the most menial tasks such as planting his garden.

The testimony of the employee on these matters is corroborated by the testimony of his wife of twenty-seven years and two neighbors of long acquaintance.

We find in this testimony ample evidence to support a finding that the effects of the employee’s injury extended to other parts of his body and were greater and more prolonged than normally associated with an injury to the foot. When the education and employment experience of the employee are considered, the effect of the injury is such as to render him unable to pursue any of his previous occupations or activities. Therefore, the trial court’s finding that the employee is permanently partially disabled will not be disturbed by this court. Where, as here, an injury to one part of the body leads to greater incapacity than that which normally results from the specific injury, the employee is not limited in his recovery to the amount allowed for the member in the schedule. Richardson, supra.

We therefore hold that the trial court’s decree meets the requirements of Code of Ala.1975, § 25-5-88, and that the injury to the employee was properly compensable under § 25-5-57(a)(3)g. as an unscheduled permanent partial disability.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ex parte REPUBLIC STEEL CORPORATION.
    78-358.
    Supreme Court of Alabama.
    May 11, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    REALTY GROWTH INVESTORS v. COMMERCIAL & INDUSTRIAL BANK OF MEMPHIS, TENNESSEE.
    Civ. 1617.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Rehearing Denied March 21, 1979.

      M. T. Ormond, Tuscaloosa, David B. Anderson, Birmingham, for appellant, Realty Growth Investors.
    Richard 0. Jones, Tuscaloosa, for appel-lee.
   BRADLEY, Judge.

Defendant, Realty Growth Investors (hereinafter RGI] appeals from a judgment in the amount of $5,592.39 plus interest and costs rendered by the Circuit Court of Tuscaloosa County in favor of plaintiff, Commercial & Industrial Bank of Memphis, Tennessee [hereinafter C & I].

The record reveals the following pertinent facts:

RGI held a mortgage on the real and personal property of I.H.M., Inc., d/b/a Rodeway Inn [hereinafter IHM]. The mortgage became due on April 30, 1975. Subsequently, RGI obtained a writ of seizure on May 4, 1976 covering, among other things, a checking account owned by IHM at First Alabama Bank of Tuscaloosa, N.A. [hereinafter First Alabama Bank]. The account was known as the Tuscaloosa Hotel Company Depository Account. It had $5,592.30 on deposit the day of the seizure. The writ of seizure was designated as Civil Action No. 7571. First Alabama Bank received the writ of seizure issued by the circuit court on May 4,1976 at 4:25 p. m. It thereafter transferred the account to RGI. C & I was not a party to the writ of seizure action, No. 7571. Final judgment was rendered on Civil Action No. 7571 on June 22, 1977.

On the day of the writ of seizure, May 4, 1976, there were four checks outstanding drawn upon IHM’s checking account known as Tuscaloosa Hotel Company Depository Account at First Alabama Bank. Check No. 287, dated April 29,1976, made payable to IHM’s Tuscaloosa Hotel Company Operating Account in the amount of $1,545.42 was deposited by IHM in its account No. 03-1240773 in C & I Bank on April 29,1976. Check No. 289, dated April 30, 1976, made payable to Tuscaloosa Hotel Company Operating Account in the amount of $4,136.79, Check No. 290, dated May 3, 1976, made payable to Tuscaloosa Hotel Company Operating Account in the amount of $3,685.97, and check No. 291, dated May 5,1976, made payable to Tuscaloosa Hotel Company Operating Account in the amount of $950.70 were all deposited by IHM in its account No. 03-1240773 in C & I Bank on May 4, 1976, the date of the writ of seizure.

According to the record, C & I Bank presented the four deposited checks to First Alabama Bank on May 5 and 6, respectively. However, the checks were dishonored and returned to C & I with the words “funds held under writ of seizure” on May 11, 1976. C & I received an actual copy of the writ of seizure from First Alabama Bank a few days after it was mailed on May 13,1976. During the interim, between the time of the depositing of the checks in the account known as Tuscaloosa Hotel Company Operating Account with C & I Bank and the receipt of notice of dishonor of the checks by C & I on May 11,1976, C & I allowed Tuscaloosa Hotel Company Operating Account to withdraw all funds credited to the account for the checks deposited by honoring and paying other checks drawn on said account. C & I’s extension of credit with withdrawals resulted in an overdraft of $8,030.49. This figure was derived by subtracting the amount on deposit ($2,291.29) on May 11, 1976 in the Tuscaloosa Hotel Company Operating Account in C & I Bank from $10,318.88, the total amount of the four deposited checks.

C & I filed a complaint against Rodeway Inn, IHM (drawer) and Tuscaloosa Hotel Company, RGI and First Alabama Bank (the drawee/payor bank) on April 15, 1977.

Summary judgment was granted against Tuscaloosa Hotel Company and IHM and in favor of First Alabama Bank on July 29, 1977. RGBs motions for summary judgment were denied on August 29, 1977 and October 12,1977; therefore, C & I and RGI were the only parties remaining in the suit who were not in default.

There are essentially two primary issues involved in this appeal. The first issue is whether C & I possessed a security interest under the Uniform Commercial Code, or any other interest, in IHM’s checking account at First Alabama Bank. The second issue is whether C & I was an indispensable party to the seizure action, No. 7571, by RGI against IHM under Rule 19 of the Alabama Rules of Civil Procedure.

I.

RGI contends that C & I did not possess a security interest in the seized bank account at First Alabama Bank, but rather C & I’s security interest, if it had any, was in the four checks and their “proceeds.” Code of Alabama 1975, § 7 — 4—208(1). C & I claims that it has an interest in the account funds, i. e. proceeds. Obviously, C & I and RGI disagree over the meaning of the word “proceeds.” RGI contends “proceeds” is the credit which C & I extended for the checks deposited by IHM. On the other hand, C & I contends that “proceeds” means the funds upon which the four checks were drawn, i. e. the account which RGI seized. Consequently, C & I claims a security interest in the seized bank account.

RGI urges that Code of Alabama 1975, § 7-4-303 is the rule of priority that should be applied to the instant case. This argument presumes there are no conflicting security interests between RGI and C & I in the same thing, i. e. the seized bank account upon which the checks were drawn. Therefore, Code of Alabama 1975, § 7 — 4— 208(3)(c), a priority section for conflicting security interests in proceeds would arguably not apply.

In pertinent part, Code of Alabama 1975, § 7 — 4-208 states that:

(1) A bank has a security interest in an item and any accompanying documents or the proceeds of either:
(a) In ease of an item deposited in an account to the extent to which credit given for the item has been withdrawn or applied;
(3) Receipt by a collecting bank of a final settlement for an item is a realization on its security interest in the item, accompanying documents and proceeds. To the extent and so long as the bank does not receive final settlement for the item or give up possession of the item or accompanying documents for purposes other than collection, the security interest continues and is subject to the provisions of article 9 except that:
(a) No security agreement is necessary to make the security interest enforceable (subsection (l)(b) of section 7-9-203); and
(b) No filing is required to perfect the security interest;
(c) The security interest has priority over conflicting perfected security interests in the item, accompanying documents or proceeds. [Emphasis supplied.]

C & I strongly urges that it has priority over RGI’s security interest in the seized bank account because Code of Alabama 1975, § 7-4r-208(3)(c) is the appropriate rule of priority which governs the controversy. Thus, C & I’s security interest in “proceeds” would prevail over RGI’s security interest if “proceeds” includes, in fact, the bank account upon which the checks were drawn.

RGI’s proposed rule of priority, Code of Alabama 1975, § 7-4-303, in pertinent part, states:

(1) Any knowledge, notice or stop order received by, legal process served upon or setoff exercised by a payor bank, whether or not effective under other rules of law to terminate, suspend or modify the bank’s right or duty to pay an item or to charge its customer’s account for the item, comes too late to so terminate, suspend or modify such right or duty if the knowledge, notice, stop order or legal process is received or served and a reasonable time for the bank to act thereon expires or the setoff is exercised after the bank has done any of the following :
(a) Accepted or certified the item ;
(b) Paid the item in cash ;
(e) Settled for the item .
(d) Completed the process of posting the item to the indicated account of the drawer, maker or other person to be charged therewith or otherwise has evidenced by examination of such indicated account and by action its decision to pay the item; or
(e)Become accountable for the amount of the item under subsection (l)(d) of section 7 — A-213 and section 7-4r-302 dealing with the payor bank’s responsibility for late return of items. [Emphasis supplied.]

It should be noted that the record reveals “legal process,” referred to in the above quoted sections, did not come too late to be effective and modify or terminate the payor bank’s (First Alabama Bank) duty to pay on the items. The writ of seizure order of May 4, 1976 preceded any kind of presentment, much less any actions required under the Code of Alabama 1975, § 7-4-303(l)(a)-(e). Furthermore, the reason given for summary judgment in favor of First Alabama Bank was the justification of First Alabama Bank in dishonoring the checks and obeying the writ of seizure. First Alabama had no choice but to obey the writ.

In order to decide which priority rule applies, this court finds it imperative to define “proceeds” for purposes of this case as it is used in Code of Alabama 1975, § 7-4r-208. The word “proceeds” is defined in Code of Alabama 1975, § 7-9-306(1), as including: “[Wjhatever is received when collateral or proceeds are sold, exchanged, collected or otherwise disposed of. The term also includes the account arising when the right to payment is earned under a contract right.”

The word “collateral” is defined in Code of Alabama 1975, § 7-9-105 as: “[T]he property subject to a security interest . .” In the instant case, the checks could be considered collateral in which the depository bank, C & I, has a security interest because Code of Alabama 1975, § 7 — 4-208 refers to a security interest in the “item” and Code of Alabama 1975, § 7-4r-104(l)(g) defines “item” as: “[A]ny instrument for the payment of money even though it is not negotiable but does not include money.” Thus, C & I had a security interest in the items or checks and those checks were the collateral. According to Code of Alabama 1975, § 7-9-306(1), whatever is received for the sale, exchange, collection, or disposal of the collateral, i. e. the checks, is “proceeds.” When the checks were presented to First Alabama Bank, they were dishonored and returned to the depository bank, C & I. The checks were not exchanged or disposed of for money or any other thing of value in any sense because the bank was under a writ of seizure order. We agree with RGBs contention that “proceeds” should logically be something that follows a transaction or emanates from it. Nothing followed or emanated from the transaction with First Alabama, for the checks were dishonored. However, we do not agree with RGI’s contention that “proceeds” as used in the UCC was the credit which was extended by C & I to its depositor’s, i. e. IHM’s, account.

Code of Alabama 1975, § 7 — 4—213, Comment 2, sheds some light upon this definitional dilemma. It states:

If an item being collected moves through several states, e. g., is deposited for collection in California, moves through two or three California banks to the Federal Reserve Bank of San Francisco, to the Federal Reserve Bank of Boston, to a payor bank in Maine, the collection process involves the eastward journey of the item from California to Maine and the westward journey of the proceeds from Maine to California. . . . This policy recognizes that final payment does not take place, in such hypothetical case, on the journey of the item eastward. It also adopts the view that neither does final payment occur on the journey westward because what in fact is journeying westward are proceeds of the item.

We find from this comment that “proceeds” does not include the seized bank account in First Alabama Bank upon which the checks were drawn. The funds on deposit in First Alabama Bank remained purely funds because First Alabama did nothing to convert the funds into “proceeds.” Via analogy to the hypothetical given in Comment 2 to the Code of Alabama 1975, § 7-4-218, the writ of seizure of May 4, 1976 prevented any westward travel of “proceeds” to the depository bank, C & I, from the payor bank, First Alabama Bank. No “settlement” by First Alabama Bank was possible therefore, the seized checking account upon which the checks were drawn could not have become “proceeds.” If any attempt at settlement had been made by First Alabama, then “proceeds” would have been returned to C & I in exchange for the checks. Should this have happened, the Code of Alabama 1975, § 7-9-306(1) definition of “proceeds” would have then been satisfied. Code of Alabama 1975, § 7 — 4— 104(l)(j) has defined “settle” as any payment “in cash, by clearinghouse settlement, in a charge or credit or by remittance, or otherwise as instructed.” Thus, it appears that the Code of Alabama 1975, § 7-4-208(l)(a) merely uses the language “to the extent to which credit given for the item has been withdrawn or applied,” as a measuring device to determine the amount of a security interest in the “item” or “proceeds.” That language, itself, does not define “proceeds.” Furthermore, Comment 1 of Code of Alabama 1975, § 7 — 4—213 states:

Final payment of an item is important for a number of reasons. It is one of several factors determining the relative priorities between items and notices, stop-orders, legal process and set-offs (Section 7 — 4r-303). It is the “end of the line” in the collection process and the “turn around” point commencing the return flow of proceeds. [Emphasis supplied.]

This quote further suggests that some action on the part of the payor bank, namely First Alabama Bank in this case, must occur before “proceeds” actually come into existence. First Alabama commenced no actions of acceptance, settlement, payment, or otherwise because its hands were tied under the writ of seizure order.

C & I asserts that its right to receive final settlement for the credit it allowed IHM, its depositor, to withdraw is no different from “the account arising when the right to payment is earned under a contract right.” Code of Alabama 1975, § 7 — 9— 306(1). This assertion is without foundation. “Contract right” is defined under Code of Alabama 1975, § 7-9-106 as “any right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper.” “Account” is defined under Code of Alabama 1975, § 7-9-106 as “any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper.” C & I’s right to settlement does not fall under § 7-9-306, for instruments (i. e. checks) exist which would evidence any account established on behalf of C & I.

It is further noted that Code of Alabama 1975, § 7-4-208(3) provides that a security interest under that section is subject to article 9 provisions. A key provision in article 9 is Code of Alabama 1975, § 7-9— 104(k), which provides:

This article does not apply:
(k) To a transfer in whole or in part of any of the following: any claim arising out of tort; any deposit, savings, passbook or like account maintained with a bank, savings and loan association, credit union or like organization .

RGI urges that this provision specifically prohibits the creation and attachment of any security interest to a bank account. At the same time RGI itself argues that it has a security interest in the bank account. It is important to note that from early UCC days there was great debate over the meaning of this exclusion. Domain Industries, Inc. v. First Security Bank & Trust Co., Iowa, 230 N.W.2d 165, 16 UCC Rep. 1417 (1975), discusses this provision of the Code and finds that this provision excludes only “the pledge of accounts as original collateral.” The Iowa Supreme Court used its newly adopted amendment of § 9-104(k) in the 1972 revision of article 9 to help explain the exclusion as it was originally written. The court concluded there was no change in the meaning of the statute and that there may be a security interest in a bank account to the extent it includes identifiable proceeds of other collateral.

Comment 7 to Code of Alabama 1975, § 7-9-104 reads:

Rights under life insurance and other policies, and deposit accounts, are often put up as collateral. Such transactions are often quite special, do not fit easily under a general commercial statute and are adequately covered by existing law. Paragraphs (g) and (k) make appropriate exclusions.

This comment further explains what type of transaction involving bank accounts is excluded from article 9. C & I, as a collecting bank, could have possibly held a security interest in the First Alabama bank account if the account had contained proceeds. Commercial Discount Corp. v. Milwaukee Western Bank, 61 Wis.2d 671, 214 N.W.2d 33, 13 UCC Rep. 1201 (1974), concerned a bank’s right to setoff against funds in a depositor’s account versus a creditor claiming a security interest in the funds. The court held that a security interest in cash proceeds (i. e. checks and cash) continues into bank deposit accounts in which debtors have deposited collections. In the case at bar C & I had a security interest in checks, however these checks were not themselves proceeds of collateral; nor were they ever properly disposed of in' order to effect an “exchange” in which proceeds would have resulted and thus become identifiable and traceable.

C & I contends that because of its holder in due course status, it possesses an interest in the bank account superior to RGI’s interest. This contention is founded upon Code of Alabama 1975, § 7-3-305. This section reads:

To the extent that a holder is a holder in due course he takes the instrument free from:
(1) All claims to it on the part of any person; and
(2) All defenses of any party to the instrument with whom the holder has not dealt .

C & I’s holder in due course status does not give it a superior interest over RGI for RHI did not make any claim to the instrument nor was RGI a party to the instrument.

In final analysis, Code of Alabama 1975, § 7-9-303 appears to be the appropriate priority section to apply to this case. There were no conflicting security interests between RGI and C & I; therefore, Code of Alabama 1975, § 7-4-208(3)(c) does not apply. In reference to Section 7-9-303 of the UCC, White & Summers, Uniform Commercial Code, § 17-7, at 589 (1972) states:

[T]he drawee may dishonor the check because the customer’s creditors have seized the funds in the account to satisfy debts owed them. Section 4-303 provides a rule to settle the rights of the holder of a check demanding payment when certain events intervene to prevent payment from the drawer’s account.

Comment 1 of the Code of Alabama 1975, § 7-4-303 says that subsection (1) states the rule for determining priorities when an event such as attachment of the drawer’s account freezes the funds available to pay an item. In applying Code of Alabama 1975, § 7-9-303, it is obvious the legal process of seizure occurred before the payor bank, First Alabama Bank, had done any of the following: accepted or certified the checks, paid the items in cash, settled for the item without reserving a right to settlement, or completed the process of posting. Therefore, the writ of seizure prevails over C & I’s demand for payment. The trial court’s judgment in favor of C & I on this issue is erroneous.

II.

The second primary issue is whether C & I should be considered an indispensable party to RGI’s seizure action against IHM under Rule 19 of the Alabama Rules of Civil Procedure. Rule 19 states:

A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. [Emphasis supplied.]

As noted above, we have decided that C & I did not possess a security interest in IHM’s bank account, and Rule 19, ARCP, uses the word “interest” rather than security interest; consequently, it is at least arguable that C & I possessed sufficient interest in the seized bank account to be considered an indispensable party, regardless of any security interest. Such an argument cannot prevail, however, for “[t]he ‘interest relating to the subject matter of the action’ that makes an absent person a party needed for just adjudication must be a legally protected interest, not merely a financial interest or interest of convenience.” 3A Moore’s Federal Practice, § 19.07 — 1[2], pp. 19-129.

C & I did not present checks drawn on the account in First Alabama Bank until after the seizure action had been filed. The drawee bank, First Alabama Bank, was not obligated to pay the items because the seizure action was effective and binding on it before presentment. In fact, Code of Alabama 1975, § 7-3-409 provides that a check does not assign any of the drawee bank’s funds, and the drawee is not liable on the instrument until it accepts it. C & I, therefore, may have acquired an interest in the checks, but its interest in the bank account upon which the checks were drawn was not a legally protected interest in the account.

Rule 19(c), ARCP, provides: “A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a) (l)-(2) hereof who are not joined, and the reasons why they are not joined.” [Emphasis supplied.] The record suggests that RGI did not know of C & I’s existence on the day it filed its complaint against IHM on May 4, 1976. Current Alabama practice would have allowed want of an indispensable party to be raised at the trial on the merits or for the first time on appeal. Final judgment was not entered in the case of RGI versus IHM until June 22,1977; therefore, we conclude the C & I should have raised such objection at the times available. Objection to want of an indispensable party to a previous action is not appropriately raised in a totally separate second action.

In Mead Corporation v. City of Birmingham, Ala., 350 So.2d 419 (1977), the Supreme Court of Alabama held that absence of an indispensable party may be raised for the first time on appeal. The appeal in question, however, is the appeal of the case in which there was the possible absence of an indispensable party. It has been suggested to this court that there was no appeal from the seizure action; however, there was a trial during which the matter could have been brought up.

We therefore conclude that C & I was not an indispensable party to RGI’s seizure action against IHM.

III.

There are three other issues argued in the parties' briefs that we will now consider.

The first concerns RGI’s title to the funds on deposit in IHM’s account in First Alabama Bank. It appears to this court that RGI obtained clear title to IHM’s bank account in First Alabama Bank. As previously discussed, C & I did not possess a security interest in the bank account; therefore, based on the facts before us, we conclude that the title was clearly reposed in RGI.

Another issue is whether C & I should recover on a theory of unjust enrichment. We believe this issue to be without merit. RGI was not unjustly enriched by receiving the bank account. Any credit C & I extended to IHM for the checks deposited which was used to pay expenses of the Rodeway Inn. subsequently acquired by RGI, did not benefit RGI. The credit directly benefitted IHM.

Next, appellee argues that Code of Alabama 1975, § 6-6-250 and Rule 64(b) of the Alabama Rules of Civil Procedure are unconstitutional. However, this issue was not determined by the trial court. Consequently, we will not consider it on this appeal.

Had the constitutional issue been properly presented to us, we would have had difficulty deciding that C & I had standing to raise the issue in the first place. Smith v. Potts, 293 Ala. 419, 304 So.2d 578 (1974) addresses the issue of standing and asserts that the court must consider the position of the plaintiffs and whether they are or will be injured by the application of the act in question. It would be difficult to establish injury in the instant case because C & I possesses no interest in the bank account which was seized under the alleged unconstitutional statute and Alabama Rules of Civil Procedure [64(b)]. The necessity of showing injury in the present or future is apparent from the Alabama cases. Jones v. Black, 48 Ala. 540 (1872); Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602 (1972). McCord v. Stephens, 295 Ala. 162, 325 So.2d 155 (1975) held that a person does not have standing to question the constitutionality of a statute unless that person has some right specifically affected by it. Following this reasoning, we would have difficulty finding that C & I possessed rights specifically affected by Title 7, § 918 (now Code of Alabama 1975, § 6-6-250).

The judgment of the trial court is reversed and the cause remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      (Included $3.00 insufficient charge).


author: BLOODWORTH, Justice.

text:
    Ex parte COMMERCIAL & INDUSTRIAL BANK OF MEMPHIS, TENNESSEE.
    78-395.
    Supreme Court of Alabama.
    May 11, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Phyllis B. KELLER v. Robert H. KELLER.
    Civ. 1645.
    Court of Civil Appeals of Alabama.
    Feb. 28, 1979.
    Rehearing Denied March 28, 1979.
    William D. Hudson and Jim L. Wilson, Gadsden, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellee.
   BRADLEY, Judge.

The former wife appeals from a judgment granting the former husband credit for sums paid to maintain the minor child of the parties in military school for weeks that the child was actually away from the mother’s home. This credit was applied against child support payments due under the divorce decree.

The husband and wife were divorced on July 14, 1975. The divorce decree awarded legal custody of the minor son to the mother and support for the child in the amount of $25 per week. On May 30,1978 the wife filed a motion to show cause why the husband should not be found in contempt for failure to make support payments. The wife alleged $5,200 in arrearages. She also included a petition for modification of the divorce decree to increase child support from $25 to $50 per week.

After hearing evidence orally, the trial court rendered a judgment on July 25,1978. It granted modification of the child support in the amount of $40 per week; found the husband to be $788 in arrears; allowed the husband credit for sums he paid to maintain the son in the military school for the time each year the child was away from the wife’s home; denied the wife’s petition for modification of the property settlement in the divorce decree; granted the husband’s counter-petition for $6,000 owed him by the wife under paragraph four of the original divorce decree; and awarded $150 to the wife for attorney’s fee.

It appears from the record that some support payments were made; however, the exact amount is uncertain due to conflicting testimony. The husband introduced checks into evidence showing amounts he paid to the wife or paid directly to Lyman Ward Military School for tuition and other school expenses during the years from 1975 through 1978.

The sole issue presented on appeal is whether the trial court erred in allowing credit for sums paid by the father to maintain the son in military school for the time each year that the son was away from the mother’s home.

In Nabors v. Nabors, Ala.Civ.App., 354 So.2d 277 (1978), we said:

When an order requires divorced husband to make periodic payments for the support of children and he has supported the children while they lived with him, the wife cannot recover payments for support during that period, nor during the period third persons were supporting the children, or the children were supporting themselves. The husband, however, is given credit for those periods in which he [or some third person] supports the child or in which the child is self-supporting. [Brackets theirs.]

The mother argues that the trial court obviously concluded that the father was entitled to credit against his arrearage during the time the child lived at the boarding school and away from her home. Such conclusion is erroneous, she says, for the reason that the boarding school cannot qualify for the “third person” support category set out in Nabors. The husband replies by saying that the trial court could have decided that the boarding school did support the child within the meaning of the “third person” doctrine contained in Nabors; or that he provided a sizeable amount of the cost of keeping the child in the boarding school, and thereby qualifies as a supporter of his child although the child did not actually live with him.

We cannot accept the proposition that the military school qualifies as a “third person” providing the support for the child. In the instant case the military school had indeed provided the actual necessities, such as clothes, food, shelter, schooling, etc., but the father and mother had paid the school for this support, with the father having paid a sizeable portion of it. In other words, the parents provided the support for the child, not the military school. The military school was merely a conduit through which the support was provided to the child. Accordingly, it cannot be said that the military school was a “third person” providing support for the child in question as contemplated by Nabors.

Although we said in Nabors that a divorced father cannot be required to pay child support payments to the mother when the children are living with him and being supported by him, we should not be understood as saying that the only way for the father to receive credit for support payments is for the child to have lived with him. We do not intend for that statement to be so construed.

In the instant case the evidence is undisputed that the father contributed a sizeable amount of money to the support of his child while the child was living in the military school, and he should not be deprived of a credit on child support arrear-age just because the child did not physically live in his house. The key factor to be considered in giving credit for child support arrearage is whether the evidence shows that the father contributed to the actual support of the child, and the principle enunciated in Nabors should not be so narrowly construed as to frustrate this result.

The trial court’s judgment allowing credits to child support arrearages for payments made by the father to a military school for boarding his minor son will be presumed correct unless it be shown that the judgment is plainly and palpably wrong. Such has not been shown to us.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte Phyllis Keller STEPHENS.
    78-469.
    Supreme Court of Alabama.
    May 11, 1979.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    O. G. PERCER v. Evelyn PERCER.
    Civ. 1666.
    Court of Civil Appeals of Alabama.
    Feb. 28, 1979.
    Rehearing Denied April 4, 1979.

      Ralph E. Coleman, Birmingham, for appellant.
    Gerard J. Durward, Birmingham, for ap-pellee.
   BRADLEY, Judge.

Husband appeals from a divorce decree modification requiring him to pay $175 per month for child support and a denial of a motion for rehearing and petition for modification.

The parties were divorced on February 12, 1976. They had been married about six and a half years. There were no children born of the marriage. On April 8,1971 the husband adopted the wife’s son, Jeffrey Alan. The adoption decree provided that the son was invested with “every legal right, privilege, obligation and relation in respect to education, maintenance and the right to inheritance.” A petition to modify the divorce decree in regard to child support was filed by the wife on April 20, 1978. She alleged a substantial change in circumstances in that it had become necessary for her to spend more money for the support of the parties’ minor sixteen year old son. An oral hearing was conducted in June 1978. Testimony and evidence showed the following: The needs of the son had increased. He would require oral surgery. The wife has to pay special prices for the son’s clothes due to his height and slender build. Because of the son’s high IQ, he attends the Academically Gifted School in Shades Valley.

The wife baby-sits with children for a living. She receives $25 per week for each child. At the time of the hearing, the wife kept five children in her home. During the summer her income is cut in half. The wife’s gross income from the child care was about $7,000 in 1977. Rental income from a house the wife owned supplemented her child care income until she sold the rental house in 1977. The wife received about $16,000 for the house and applied the money to the balance left on her present home. The wife owns about $7,000 worth of church bonds; receives bond interest of $375 per year; has about $200 in savings; and owns six lots.

The husband has worked as a statistical clerk with U. S. Steel Corporation for about thirty-five years. He grossed about $20,000 in 1977. He has two outstanding debts for a car and a home improvement loan. The husband had voluntarily severed all relations with the son since the divorce and desired no visitation.

The decree of modification was dated August 1, 1978. It reads in part:

2. Plaintiff, O. G. PERCER, shall pay to Defendant, EVELYN PERCER, the sum of ONE HUNDRED SEVENTY-FIVE DOLLARS ($175.00) per month as support and maintenance of the minor child, JEFFREY ALAN PERCER, and Further, said support and maintenance payments are to be effective August 1, 1978 and continue each month thereafter until the said JEFFREY ALAN PER-CER, reaches the age of 19 years or marries, whichever occurs first.

Within thirty days, on August 23, 1978, the husband filed a motion for rehearing and a petition for modification. The motion and petition both were denied on September 6, 1978. Notice of appeal was filed September 28, 1978.

On appeal the husband contends that the petition filed by the wife was a petition for modification of a divorce decree rather than a supplemental petition for child support; that a material change in circumstances was not proved; that his wife is able to support the minor child with her income; and that the parties are bound by the agreement incorporated into the divorce decree providing that the “sole” support of the child consists of the maintenance of insurance.

We commence our review of these issues by saying that we will not disturb the order of a trial court which modifies a prior child support decree unless it appears that court has plainly and palpably abused its discretion in the matter. Armagost v. Armagost, Ala.Civ.App., 357 So.2d 362 (1978); Strother v. Strother, Ala.Civ.App., 355 So.2d 731 (1978); see 15A Ala.Dig. Parent & Child 3.3(10). Also, we wish to point out that the burden of proving a material change in circumstances since the prior decree is on the party seeking a modification. McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977).

The changed needs, conditions, and circumstances of the child, coupled with the father’s ability to meet such needs, are factors to be considered in determining whether there are such changed circumstances as to justify modification of child support. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. den. 295 Ala. 429, 321 So.2d 664 (1975). In this case increased needs of the child were shown. In addition, no evidence was produced that the father was unable to pay an increased amount of child support.

We agree with the husband that the wife filed a petition to modify the prior decree to receive increased child support rather than a supplemental petition as was the case in Armstrong v. Sparks, Ala.Civ.App., 360 So.2d 1012 (1978). The divorce decree in the case at bar reflects that an agreement made by the parties was incorporated therein. The agreement contained the following provision relating to child support:

7. The only child support the parties agree upon, shall be that the Plaintiff will retain his stepson on his company paid Blue-Cross Blue-Shield Insurance.

Granted, the decree did not specify a specific, monetary amount to be paid weekly, bi-weekly or monthly, but it did provide for child support to the extent that the husband-father was required to maintain health insurance for the child. This is an award of child support such as to authorize a modification thereof.

The situation was different in Armstrong v. Sparks, supra. In that case there was no agreement for the father to pay child support in any form, nor did the trial court order the payment of child support in any form. This court concluded that in the absence of an award of child support there could be no modification thereof. Accordingly, we held that child support could be awarded only upon the filing of a supplemental petition.

In the case at bar the proper petition was filed by the defendant-mother.

The next contention of plaintiff-husband is that the wife is able to support the minor child with her income. The primary responsibility for the support of minor children rests on the father. Womble, supra. The duty of a father to support his children is founded upon his ability to meet the children’s needs, not the mother’s ability. Her ability to support minor children becomes a factor only when the proof shows a lack of financial capability in the father. Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976). No such proof appears in this case.

The husband’s contention that the parties are bound by the agreement incorporated into the divorce decree may contain merit. Rouse v. State, 43 Ala.App. 171, 184 So.2d 839 (1966); however, an agreement of the parties providing for support of children is not binding on the children. Worthington v. Worthington, 218 Ala. 80, 117 So. 645 (1928); Tucker v. Tucker, 280 Ala. 608, 196 So.2d 724 (1967); Rouse v. State, supra.

After a thorough review of the evidence in this record, we do not find that the trial court abused its discretion by requiring the father to pay an increased amount of child support, and we therefore affirm the decree.

The wife’s request for attorney’s fee on appeal is granted in the amount of $350.

AFFIRMED.

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


text:
    Ex parte O. G. PERCER.
    78-472.
    Supreme Court of Alabama.
    May 11, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Samuel Earl KNIGHT v. Honorable Lenwood SAGER, Sheriff, Monroe County.
    Civ. 1844.
    Court of Civil Appeals of Alabama.
    April 27, 1979.
    George K. Elbrecht, Monroeville, for appellant.

      No briefs for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a petition for writ of habeas corpus.

Appellant, Samuel Earl Knight, was incarcerated in the Monroe County jail on October 28, 1978, for failure to make support payments to his ex-wife. He filed a petition for writ of habeas corpus and a motion to proceed in forma pauperis along with a supporting affidavit of poverty on March 21, 1979. Without evidentiary hearing the trial court granted appellant’s motion to proceed in forma pauperis but denied the petition for writ of habeas corpus.

In appellant’s affidavit of poverty, he swore that he had no job, no money, and no assets. Our cases have held that imprisonment for contempt should never be imposed by a judge where the failure to pay support is not from willful contumacy, but from inability to comply with the order. Hayes v. Hayes, 339 So.2d 84 (Ala.Civ.App.1976); Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971).

Because of the trial court’s grant of the appellant’s motion to proceed in forma pau-peris, we consider the record shows the appellant financially unable to purge himself of contempt. He is therefore entitled to be discharged from custody.

The denial of habeas corpus is reversed and the trial court is directed to grant the writ and discharge the appellant from custody.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.