author: TORBERT, Chief Justice.

text:
    Paul TRAUNER and Vernon Ray Trauner v. Ernestine Higdon LOWREY et al. Ernestine Higdon LOWREY et al. v. Paul TRAUNER and Vernon Ray Trauner.
    77-338, 77-338X.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Rehearing Denied April 6, 1979.

      Albert W. Key and James W. Tari ton, III, Mobile, for appellants and cross-appel-lees, Paul Trauner and Vernon Ray Trauner.
    J. Edward Thornton, Mobile, for appel-lees and cross-appellants, Ernestine Higdon Lowrey, et al.
    Charles J. Fleming and Edward G. Hawkins, Mobile, for appellee, Union Oil Company of Calif.
   TORBERT, Chief Justice.

This is an appeal from an action filed in the Circuit Court of Mobile County by appellants, Paul Trauner and Vernon Trauner, seeking declaratory relief and an in person-am bill to quiet title. The controversy is based upon the rival claims of the Trauners and the appellees, Ernestine Higdon Low-rey and others claiming title through Low-rey Eastland, to the mineral rights to certain property located in Mobile County, Alabama. Oil was discovered in this area around 1974. After a trial on the merits, the trial court rendered judgment in favor of Lowrey finding no title in the minerals under the land in question in the Trauners.

The Trauners filed a motion to vacate or alter judgment. The trial court set aside its decree and entered an opinion and order containing substantially the same conclusions of law as its original decree but deleting the findings of fact. The Trauners appeal from the judgment, and a cross-appeal was filed by Lowrey based upon the trial court’s deletion of the findings of fact in the final decree. We reverse on the appeal and affirm on the cross-appeal.

Both parties base their claims to the mineral rights upon the facts found in the record chain of title. The pertinent conveyances and contentions of the parties as to those conveyances are described below:

(1) William Maddox and his wife, Gwendolyn, owning the full fee simple title to 120 acres of land, executed a mortgage dated May 11, 1948, conveying the entire property in favor of Charles G. Hackmeyer.

(2) On July 3, 1948, William Maddox and his wife, Gwendolyn, executed an instrument to Lowrey Eastland which read in part:

. William Maddox and Gwendolyn Maddox . . . hereby grant, sell and convey unto Lowrey Eastland . an undivided one-half (%) of their one-eighth (Vs) royalty interest .

This deed further provided:

This grant is further subject to a mortgage executed by the Grantors to Charles Hackmeyer, dated May 11, 1948, and recorded in Mortgage Book 263 N.S. page 197, Probate Records of Mobile County, Alabama . . . . (Emphasis supplied).

Based upon the Hackmeyer mortgage and the language in the deed to Eastland with emphasis on the words “subject to a mortgage,” the Trauners contend that they conveyed an equity of redemption to East-land in the mineral rights in question.

(3) The Hackmeyer mortgage was foreclosed on June 27, 1949, and Charles Hack-meyer purchased the property at the foreclosure sale on July 7, 1949. The Trauners contend that Eastland’s interest was extinguished by this foreclosure combined with the failure to exercise the statutory right of redemption he had as grantee of the mortgagor.

(4) By warranty deed dated August 11, 1950, Hackmeyer conveyed the entire 120 acres to Lula M. Collins (sister of William Maddox), et al. At the time of this conveyance the statutory period of redemption under Ala.Code Tit. 7 § 727 (Recomp.1953) had not yet expired as to Maddox and East-land.

(5) The next instrument pertinent to the issue in this case is a warranty deed from Lula M. Collins, et al., to William and Gwendolyn Maddox dated August 11, 1952, conveying the entire 120 acres. This is the crucial transaction in the case. Appellees contend that by the doctrine of estoppel to assert after-acquired title, this conveyance vested title in Lowrey Eastland' and his subsequent grantees. Appellants claim that this doctrine is not applicable. By the time of this conveyance the statutory period for redemption had expired.

(6) The Trauners purchased, through mesne conveyances, approximately 25 acres of the original 120 acre tract. They hold a warranty deed from Charles E. Pierce and Shirley L. Pierce dated September 12, 1966.

To establish the rights of the parties to the property in question, we must determine the nature of the estate conveyed by a deed expressly made “subject to” a mortgage and what effect, if any, the doctrine of estoppel to assert after-acquired title has on the facts given.

Alabama classifies itself as a “title” state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee. Lloyd’s of London v. Fidelity Securities Corporation, 39 Ala.App. 596, 105 So.2d 728 (1958); Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 20 So.2d 105 (1944); Jones v. Butler, 286 Ala. 69, 237 So.2d 460 (1970). The mortgagor is left with an equity of redemption, but upon payment of the debt, legal title revests in the mortgagor. § 35-10-26, Code 1975. The equity of redemption may be conveyed by the mortgagor, and his grantee secures only an equity of redemption. McDuffie v. Faulk, 214 Ala. 221, 107 So. 61 (1926). The payment of a mortgage debt by the purchaser of the equity of redemption invests such purchaser with the legal title. Denman v. Payne, 152 Ala. 342, 44 So. 635 (1907). The equity of redemption in either case, however, is extinguished by a valid foreclosure sale, and the mortgagor or his vendee is left only with the statutory right of redemption. § 6-5—230, Code 1975; McDuffie, supra.

In McKleroy v. Dishman, 225 Ala. 131, 134, 142 So. 41, 43 (1932), with regard to a mortgagor’s grantee taking subject to the mortgage, this Court stated:

The grantee would take only the equity of redemption, with the right, at his option, to protect his estate by a removal of the mortgage incumbrance. The grantors would remain the sole debtors to the mortgagee; but, if required to pay same, the estate of the mortgagee would revest in them. The grantee of the equity of redemption only could not take a complete unincumbered estate without paying the mortgage debt to whom it inured.

In McKleroy the plaintiff sought and obtained reformation of an instrument so as to disclose that property was conveyed subject to a mortgage and not assuming the mortgage debt. In the above quotation the Court explained the state of contractual relations between the parties after the reformation.

Appellees contend that Maddox purported to convey an unencumbered interest in the property because the qualifying clause was in a separate paragraph from the granting clause. We disagree. This position goes against the basic rules of construction. “In construing the deed, the duty devolves upon the court to ascertain as far as possible the grantor’s intention, and in the performance of this duty to look at the whole conveyance.” Cobbs v. Union Naval Stores Co., 202 Ala. 333, 334, 80 So. 415, 416 (1918). In the deed from Maddox to Eastland, following the granting clause and description were the words “this grant is further subject to a mortgage.” In Toney v. Dewey, 201 Ala. 533, 78 So. 887 (1918), it was held that where the words “this conveyance is made subject to a mortgage” followed the granting clause and description, only the equity of redemption was conveyed, because the property was subject to the mortgage.

Clearly, the' conveyance from Maddox to Eastland was made subject to the Hackmeyer mortgage. As a result of this conveyance Eastland received an equity of redemption which was all that Maddox had to convey. As grantee, Eastland incurred no personal obligation to pay the mortgage, but he had the privilege to do so to protect his interest in the property. Eastland did not remove this encumbrance prior to foreclosure nor did he exercise his statutory right to redeem following the foreclosure sale. His interest and that of his subsequent grantee were thus extinguished. § 6-5-230, Code 1975; Upchurch v. West, 234 Ala. 604, 176 So. 186 (1937). Also see 4 American Law of Property § 16.127 (A. J. Casner ed. 1952).

The appellees further urge that even if the deed is read as conveying an interest “subject to” the mortgage, Maddox as grantor had a duty to Eastland as grantee to pay the mortgage debt and thereby preserve the estate conveyed. They cite Griffin Lumber Co. v. Neill, 240 Ala. 573, 200 So. 415 (1941), in support of the contention that “one cannot take advantage of his own breach of duty” and profit thereby. As we understand Griffin, it dealt with the duty of a mortgagor in possession, or his successor, to his mortgagee to pay state and county property taxes to preserve the mortgagee’s security. The case before us does not involve the legal duty to state and county to pay taxes. The Griffin decision spoke only to the issue of payment of taxes saying that the mortgagee had the right to depend on the mortgagor or his vendee to pay them. In a conveyance made subject to a mortgage, “the mortgagor has no obligation to the transferee to pay [the mortgage debt] for the purpose of relieving the land in the hands of the transferee.” 4 American Law of Property § 16.127 (A. J. Casner ed. 1952). Therefore, Maddox owed Eastland no duty to pay the mortgage debt. As language in McKleroy, supra, suggests, one who takes subject to a mortgage must pay the debt himself in order to take an unencumbered title.

Appellees cite Stewart v. Anderson, 10 Ala. 504 (1846), as controlling authority that the Trauners cannot seek to benefit from the Maddox default. That case involved a bankrupt mortgagor who reacquired the mortgaged property at a foreclosure sale and claimed to have taken free of the encumbrance. This mortgagor Anderson purchased certain real property from one Page and executed a mortgage to Page. Under the terms of the mortgage, Anderson promised to pay some $1,816 to Page, and in addition, Anderson agreed to pay Page’s debt to the Planters’ and Merchants’ Bank of Mobile, which debt was secured by a mortgage to the Bank on the same property. Anderson was declared a bankrupt. Default was made in the payment of the debt secured by Page’s mortgage to the Bank, which debt had been assumed by Anderson. At the foreclosure sale by the Bank, Anderson purchased the property. The plaintiff, Stewart, an assignee of Page, sued to enforce the Anderson mortgage to Page. Anderson claimed that by his purchase of the property upon foreclosure he took complete legal and equitable title as against Page, or his assignee, so that neither could enforce the mortgage. The trial court decided in favor of Anderson and the Supreme Court reversed, finding the question to be whether the defendant Anderson by his purchase at foreclosure of the mortgage from Page to the Bank acquired a title to the premises which he could successfully assert against his mortgagee Page. The Court answered this in negative saying:

[T]he mortgage in question, as a security, was unimpaired by any act done but was operative against him, and [Anderson] now seeks to defeat it by setting up an interest subsequently acquired by himself, the successful assertion of which would be a breach of his warranty. This cannot be done. Stewart at 510.

The Stewart Court reasoned in its decision as follows:

Although we have considered the case upon the argument of defendant’s counsel, we are not prepared to admit that the reason why a title acquired by a mortgagor, inures to his mortgagee, depends upon the fact whether the former has warranted the title which he has undertaken to convey to the latter. It rests upon higher ground, viz: that as the mortgagor has, by his deed, impliedly asserted a right to pledge the premises by a conveyance in fee, he shall not be allowed to insist that he had a less estate, and whatever interest he afterwards acquires shall rest in the mortgagee to make good the title which he professed to transfer. Stewart at 510.

Stewart is not controlling in the instant case. The essential distinction lies in the title which Maddox professed to convey in our case to Eastland, his grantee, and the title which Anderson conveyed to his mortgagee Page. In Stewart, as a term of his mortgage, Anderson expressly agreed to assume Page’s mortgage to the Bank, becoming liable therefor and standing in the shoes of Page. Further, by the terms of the mortgage, Anderson mortgaged the property to Page in fee, free and clear of encumbrances. The title obtained by Anderson upon purchase at foreclosure inured to the benefit of Page to make good the title which Anderson conveyed by his own mortgage to Page.

In our case, however, Maddox expressly conditioned his conveyance by deed to East-land on the outstanding Hackmeyer mortgage. The title he professed to transfer to Eastland was subject to the earlier mortgage. By the terms of the deed Eastland knew that Maddox had only an equity of redemption to convey. This distinguishes Stewart from our facts. While Anderson became personally liable for payment of Page’s mortgage and mortgaged his property unconditionally, Eastland took subject to a mortgage and its terms. Maddox never conveyed or professed to convey to East-land a title which he later acquired.

The doctrine of estoppel to assert after-acquired title is the basis for much of the argument in this case. Appellees rely on the general rule that if a grantor of real estate having lesser title than he assumed to grant subsequently acquires the title or estate which he purported to convey, such after-acquired title inures to the benefit of the grantee or his successors by way of estoppel of the grantor or those claiming under him. Appellants claim that Maddox is not estopped from claiming after-acquired title because he clearly did not intend that the original deed to Eastland should pass any title other than that which he had at the time. In addition, the subsequently acquired title would not inure to Eastland’s benefit since he took subject to the mortgage, aware of the deficiencies in his grantor’s title.

The doctrine of estoppel to assert after-acquired title was applied in Doolittle v. Robertson, 109 Ala. 412, 413, 19 So. 851 (1895):

In no state, perhaps, has the rule been more rigidly adhered to than in this ‘that when one sells land to which he has no right with warranty of title, and he after-wards acquires a good title, it passes instantly to his vendee, and he is estopped from denying that he had no right at the time of the sale.’ This rule has never been so applied as to prevent the grantor from reacquiring title from his grantee by purchase or by adverse possession.

Basic to the doctrine is the attempt by a grantor to convey a greater interest in property than he possesses at the time of the conveyance. On its face, the deed from Maddox to. Eastland purported to convey an interest in the mineral rights in the property in question subject to the Hackmeyer mortgage. At the time of the conveyance Maddox held only an equity of redemption and was legally entitled to convey only that equity. By the terms of the deed he did not purport to convey a greater estate than possessed.

The doctrine was further defined in an early decision:

It is settled in this state that if one, having at the time no title, convey lands by warranty, even the warranty which the law implied from the employment of the words ‘grant, bargain, sell and convey,’ and afterwards acquires title, such title will enure and pass eo instanti to his vendee. This by a species of estoppel. Chapman v. Abrahams, 61 Ala. 108, 114 (1878); Accord, Stewart v. Anderson, 10 Ala. 504, 510 (1846).

The Maddox deed contained no express warranties. The implied warranties in the words “grant,” “bargain” or “sell” are construed, to grant a fee simple, free from encumbrances “unless it otherwise clearly appears from the conveyance.” § 35 — 4—271, Code 1975. That statute also imports to the same words the warranty of quiet enjoyment, “unless limited by the express words of such conveyances.” The deed in question makes clear the limitation as to the warranties that the interest conveyed is subject to a mortgage.

Thus the application of estoppel to assert after-acquired title is not appropriate. The grantor Maddox neither conveyed an estate to which he had no right, nor warranted a conveyance free from encumbrances since he clearly stated that the conveyance was subject to an earlier mortgage.

William Maddox reacquired the property in question after his forfeiture through default and foreclosure. This reacquisition did not inure to the benefit of Eastland, however. The court in Upchurch, supra, described the effects of foreclosure sale and statutory redemption:

This Court has uniformly held that a foreclosure of a mortgage pursuant to the terms and power of sale therein contained completely extinguishes the equity of redemption resulting from the mortgage, leaving in the mortgagor, or those claiming under or through him, only the statutory right of redemption, to be exercised, if at all, according to the terms of the redemption statutes. .
The statutory right of redemption can only be exercised by those described in the statute, and in the mode and manner prescribed by the statute. Upchurch, 234 Ala. at 608, 176 So. at 189.

Under the provisions of § 6-5-230, Code 1975 and its predecessors, Maddox and his wife reacquired the property after the redemption period had run, and the actual purchasers at foreclosure sale were not among those enumerated by the statute.

Since no redemption took place during the statutory period, the title held by Lula Collins, et al. was absolute, and they could convey good title to subsequent grantees. The Trauners took through an unbroken record chain of title as bona fide purchasers for value with no valid lien or lis pendens appearing on the record to give notice of a possible flaw in the title they received.

The cross-appeal brought by the defendants at trial, appellees before us, involves a question of whether the trial judge, without justifying his action, can strike his findings of facts as a result of an ARCP Rule 59(e) motion to alter, amend or vacate a judgment. Cross-appellants contend that the motion was improper. From our reading of the pleadings of record, however, it appears that appellants Trauner properly employed Rule 59(e). The Rules of Civil Procedure urge a liberal construction of motions. It was said in Albright v. Albright, 356 So.2d 173, 176 (Ala.Civ.App.1977):

But given the fact that the rules of equity are no longer in effect, we do not believe such a harsh interpretation of the manner in which a motion is designated or labeled is warranted. Indeed, with the exception of the instances specified in our rules of civil procedure, motions, pleadings and other procedural matters should be construed with liberality.

Cross-appellants further contend that the trial judge erred in withdrawing his findings of fact. They base their contention on the language in the rule to the effect that “findings of fact shall not be set aside unless clearly erroneous.” This language applies only in appellate review of the trial court’s findings of fact.

Under ARCP 52 the law is clear that allowance of findings of fact is purely discretionary with the trial court. Provident Life And Accident Insurance Company v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975). We find no abuse of discretion in this case.

We reverse as to the appeal and affirm on the cross-appeal.

REVERSED AND REMANDED IN PART. AFFIRMED IN PART.

All the Justices concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Florence TAYLOR et al. v. Elizabeth RUSSELL et al.
    77-554.
    Supreme Court of Alabama.
    Feb. 16, 1979.
    Rehearing Denied April 6, 1979.

      Charles A. McGee, Fort Payne, for appellants.
    Terry D. Gillis of Kellett & Gillis, Fort Payne, for appellees.
   JONES, Justice.

This is an appeal by Defendants, the devi-sees of Millie Ballard Mitchell Berry, deceased, from a judgment declaring Plaintiffs/Appellees, heirs at law of Walter E. Mitchell, joint owners in fee of certain real property in DeKalb County, Alabama.

Walter E. Mitchell died on September 18, 1917, leaving no children; he was survived by his widow, Millie Ballard Mitchell. At the time of his death, Walter Mitchell owned 69% acres of land in DeKalb County, Alabama, on which he and his wife, Millie, had resided. On November 19, 1917, • 62 days after her husband’s death, Mrs. Mitchell filed a petition for homestead exemption with the Probate Court of DeKalb County. In the petition, she sought to have her deceased husband’s land set apart to her in fee simple. The petition alleged that the property was all of the land owned by Walter Mitchell at his death and that this property did not exceed 160 acres nor $2,000 in value.

On the same day as the filing of the petition, the probate court entered an order appointing appraisers of the estate. In that order, the probate court found the aver-ments of the petition to be true and assumed jurisdiction of the homestead proceeding, stating that 60 days had elapsed since the death of Walter Mitchell without any administration on his estate. A report by the duly-appointed commissioners (appraisers) was filed with the probate court, stating that Walter Mitchell, at his death, owned 69% acres of land valued at $1,900. There was no finding by the appraisers, nor an adjudication by the court, that such land was all of the land owned by Walter Mitchell at his death. The probate court, upon these facts, issued a decree setting apart the property to Mrs. Mitchell as a homestead for life.

In May, 1974, Mrs. Mitchell died testate, leaving this property to the Appellants in this case. In 1976, Appellees, claiming to be the heirs at law of Walter Mitchell and joint owners in fee of the property in question, instituted this action to quiet title in the property.

The trial Court rendered judgment for the Plaintiffs/Appellees, finding that the probate court never acquired jurisdiction over the homestead proceedings because Mrs. Mitchell’s petition failed to allege the necessary jurisdictional fact that 60 days had passed since the death of Walter Mitchell without any administration of his estate. The trial Court ruled that the probate court’s decree was therefore void. The trial Court further found that Mrs. Mitchell took only a life interest in the property and that, upon her death, the heirs of Walter Mitchell, as remaindermen, became the owners in fee simple of the property. The Court also ruled, as a matter of law, that Mrs. Mitchell could not enlarge her life interest in the property into a fee simple estate by adverse possession.

Acknowledging that they can benefit only if Mrs. Mitchell obtained a fee simple title to the property sometime during her life, Appellants, as her devisees, advance two theories by which they contend Mrs. Mitchell obtained such title. First, they claim that a fee simple title vested in Mrs. Mitchell through the homestead proceeding in probate court because: 1) The probate court specifically found, in its order appointing appraisers, that 60 days had passed from the decedent’s death without administration of his estate; and this despite the fact that Mrs. Mitchell’s petition failed to make this necessary jurisdictional allegation; 2) the probate court appointed appraisers to appraise all the real and personal property of Walter Mitchell; thus, the appraisal, as returned, necessarily included all the property belonging to Walter Mitchell at his death; and this despite the fact that the commissioners’ report and the court’s final decree made no such specific "finding; and 3) the probate court specifically found that the property was less than 160 acres and that the value was less than $2,000.

The Appellants would have us conclude, then, based on the findings of the probate court (as to the lapse of the 60-day period and the size and value of the property) and on the assumption that the appraisers did as ordered (i. e., found and reported on all of the property belonging to the decedent), that the homestead statute existing at the time of the probate proceedings operated automatically (i. e., by operation of law) to vest a fee simple title in Mrs. Mitchell.

As their second and alternative argument in support of their contention that Mrs. Mitchell obtained a testamentary devisable fee, Appellants state: Assuming Mrs. Mitchell was not vested with a fee simple title by the probate proceeding, she obtained such title by adverse possession.

Appellees, on the other hand, contend that the failure of Mrs. Mitchell’s petition to make necessary jurisdictional allegations cannot be cured by a finding of the probate court, citing Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105 (1935). Therefore, Appellees contend, any finding or order of the probate court was void. Alternatively, Appellees assert: If the probate court did obtain jurisdiction in the homestead proceeding, it ruled properly in granting only a life estate.

In reply to Appellants’ adverse possession argument, Appellees contend that, as a matter of law, Mrs. Mitchell could not acquire a fee by adverse possession against them as remaindermen.

We find it unnecessary to respond to the question whether the probate court Obtained jurisdiction in the probate proceedings. Conceding the jurisdictional issue, we cannot escape the fact that the probate court made no judicial determination that the 69% acres was all of the real estate owned by the decedent as required under § 4198, Code of Alabama 1907, the statute which controlled vesting of a fee at that time. Nor can the law so assume from the fact that the commissioners were ordered “to appraise all” the decedent’s property within the state.

Additionally, it was never determined by the probate court in the instant case whether the estate was insolvent. Under § 4198, Code of Alabama 1907, this was a prerequisite to the vesting of the fee simple of the homestead in a surviving widow. Therefore, assuming jurisdiction was properly obtained, we hold the probate court was correct in setting aside a homestead for life, rather than vesting a fee in the widow.

Alternatively, if the probate court was without jurisdiction, any order or decree it issued was void, leaving Mrs. Mitchell only her right of quarantine. Hays v. Lemoine, 156 Ala. 465, 47 So. 97 (1908); Miller v. First National Bank, 194 Ala. 477, 69 So. 916 (1915). Consequently, because Mrs. Mitchell did not obtain a fee in the probate proceeding, her devisees can benefit only if she acquired title by adverse possession; and, as we shall see, the standard for such acquisition is the same whether the widow possessed the property under her quarantine right or under her right to a homestead exemption.

Generally, a homestead is a life estate in the widow. Bryant v. Perryman, 213 Ala. 561, 105 So. 561 (1925). In contrast, quarantine is not an estate in land— only a right to use and occupy the dwelling house where the widow’s deceased husband last lived and the land and buildings appurtenant thereto. Norton v. Norton, 94 Ala. 481, 10 So. 436 (1891); Jackson v. Bain, 74 Ala. 328 (1883). See, generally, Eugene Alston Ray, “Assignment of Dower in Alabama,” 37 Ala. Lawyer 112 (1976). A widow, if entitled to dower, however, may hold possession to such property under her quarantine rights until her dower is assigned. Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1899); § 3824, Ala.Code 1907.

We find no distinction in the cases between a homestead life estate and possession under quarantine as to the standard of proof for adverse possession by a widow against her husband’s heirs. It is generally held that possession by a widow of her deceased husband’s property under dower, homestead, or quarantine right is not adverse to the husband’s heirs. 3 Am.Jur.2d, Adverse Possession, § 235, p. 606; Bank of Columbia v. McElroy, supra; Stiff v. Cobb, supra; Johnson v. Oldham, 126 Ala. 309, 28 So. 487 (1899); Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197 (1888).

Keeping in mind the. facts of the present ease, it must be noted that this Court has specifically held that possession under such rights is not adverse even when held by the widow jointly with a second husband. Johnson v. Oldham, supra. This result is in accordance with the general rule that there can be no adverse possession by a life tenant against a remainderman. Duncan v. Johnson, 338 So.2d 1243 (Ala.1976). Our cases consistently recognize that, as long as a widow is rightfully in possession of her husband’s lands under her marital rights, her possession is not adverse to the heirs, even if she claims entire ownership. White v. Williams, 260 Ala. 182, 69 So.2d 847 (1954); Gindrat v. Western Railway of Alabama, 96 Ala. 162, 11 So. 372 (1891).

We do not intend, however, to suggest that there are no circumstances where a widow can acquire title by holding adversely as against the husband’s heirs. Where the widow gives up her dower rights, as by a release to the heirs, or other acts amounting to an unequivocal relinquishment of dower, and the legal owner receives notice of such fact, she can then establish an adverse holding and prove ownership under it according to tfie customary procedures and rules. White v. Williams, supra.

As a prerequisite to the widow’s possession becoming adverse against the heirs of her husband, it has been held that she must repudiate the title of her husband and disavow any claim to such title and give notice of the disavowal, and that notice of the disavowal must be brought home to the heirs. Haynes v. Strange, 232 Ark. 374, 337 S.W.2d 661 (1960). A widow whose dower remains unassigned cannot acquire title by adverse possession as against the heirs simply by remaining in the possession of her husband’s land. Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931); Lee v. Harris, 188 Tenn. 373, 219 S.W.2d 892 (1949); 3 Am.Jur.2d, Adverse Possession, § 235, p. 606. For a parallel rule in the context of co-tenants, see Tyson v. Jackson, 364 So.2d 1140 (Ala.1978) [1978],

A widow who holds possession without color of title may obtain title by adverse possession against the heirs if the occupancy is open, notorious, visible, and by acts which unmistakenly convey notice to the heirs of her hostile holding, in defiance of their title. Criswell v. Noble, 61 Misc. 483, 113 N.Y.S. 954 (1908), affirmed 134 App.Div. 994, 119 N.Y.S. 1122 (1909). It has been held in other jurisdictions that once the period of a widow’s rightful possession of her deceased husband’s property expires her possession under a claim of ownership will be adverse to the heirs. Niederhelman v. Niederhelman, 336 S.W.2d 670 (Mo.1960). In the present case, however, Mrs. Mitchell’s possession would have properly continued until the time of her death under either her quarantine right or homestead right. For an excellent statement of the Alabama rule (where the factual context fails to show repudiation of title and notice of disavowal of any claim to such title), see Duncan v. Johnson, 338 So.2d 1243 (Ala.1976).

In Robinson v. Allison, 97 Ala. 596, 12 So. 382, 604 (1893), the Court held that, although a widow occupying the homestead may adversely possess against the owners of the interest in excess of her dower or homestead rights, mere possession under the facts there involved fell short of the elements required to vest a fee by adverse possession.

Later, in Hays v. Lemoine, supra, it was held by this Court that there could be adverse possession against the husband’s heirs if the widow’s possession, having begun in amity with the heirs, thereafter became hostile.

Finally, in Branford v. Shirley, 241 Ala. 314, 2 So.2d 403 (1941), the Court, although recognizing the Hays rule that a widow who was in possession of her deceased husband’s land for more than 20 years could acquire title by adverse possession if such holding was adverse, held the evidence insufficient to prove the requisite elements of adverse possession.

In view of the foregoing principles, we conclude that the trial Court in the instant case was in error when it ruled, as a matter of law, that Mrs. Mitchell could not enlarge her life interest in the homestead into a fee simple under the doctrine of adverse possession. In so ruling the trial Court foreclosed consideration of this factual issue; and any such initial consideration would be improper at the appellate level.

Admittedly, the law casts a heavy burden on one seeking to establish acquisition of a fee interest by a life tenant through adverse possession. Indeed, unless the evidence convinces the trial Judge that Mrs. Berry’s possession converted from one in amity with the heirs to one of hostility, amounting to a repudiation of her husband’s title and disavowal of her life interest therein with notice of such disavowal to the heirs, no finding of adverse possession can be made. Nevertheless, the opportunity to meet this burden cannot be summarily denied.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All the Justices concur.

      . Mrs. Mitchell’s husband by a second marriage, Tip Berry, also predeceased her. There were no children by this marriage.

      . Although they specify this adverse ruling in the decree below as the issue presented for review, Appellants’ brief also points out that the trial Court excluded certain proffered evidence material to this issue.

      . If the premises for this argument are valid, the conclusion urged by Appellants is supported by case law. See Freeman v. Still, 257 Ala. 554, 59 So.2d 801 (1952).

      .We hasten to point out that the insolvency prerequisite of the 1907 Code no longer obtains. See, § 6-10-62, Ala.Code 1975.


author: PER CURIAM.

text:
    SULLIVAN, LONG & HAGERTY, INC. v. STATE of Alabama.
    77-678.
    Supreme Court of Alabama.
    Feb. 16, 1979.
    Rehearing Denied April 6, 1979.
    W. Gerald Stone and James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellant.
    Thomas Coleman, Sp. Asst. Atty. Gen., Birmingham, for the State of Alabama, ap-pellee.
   PER CURIAM.

This case is affirmed on the authority of Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545, 7 A.L.R.2d 773 (1948).

AFFIRMED.

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


text:
    Delores K. RILEY and Frances Green v. Ethel Irvin CRENSHAW et al.
    78-9.
    Supreme Court of Alabama.
    March 2, 1979.
    Rehearing Denied April 6, 1979.
    W. H. Baldwin, Andalusia, for appellants.
    Johnnie B. Byrd, Jr., of Caffey & Byrd, Brewton, for appellees.
   JONES, Justice.

Appellant aptly states the' issue presented for review:

“When an Alabama resident dies leaving a homestead in which his widow, as a matter of law, has an exclusive right of possession; and in which the widow, as a matter of law, is vested with an undivided interest; does the widow have the right to have this homestead sold and $6,000.00 set aside for her use and benefit?”

The case was tried on the following stipulation of facts: The land described in the pleadings was the homestead of W. S. Cren-shaw, deceased. He actually lived on the land and occupied it as his homestead at the time of his death on January 20,1971. This land was all the land owned by W. S. Cren-shaw at the time of his death; was less in area than 160 acres; and exceeded in value $6,000.

W. S. Crenshaw died intestate, leaving a surviving widow, Ethel Irvin Crenshaw (the Appellee), and no minor children. The seven adult children of W. S. Crenshaw are his sole heirs (two of whom are the Appellees). All the debts of W. S. Crenshaw are paid or there are sufficient monies in the administration of his estate, now pending in the Circuit Court, Escambia County, Alabama, available to pay all claims. During his lifetime, no claim of homestead exemption was filed by W. S. Crenshaw under § 6-10 — 20, et seq., Ala.Code 1975.

The parties further stipulated:

“The sole issue before the Court is as follows: Whether the cross-complainant, Ethel Irvin Crenshaw [Appellee], is entitled to have set aside an exemption in lieu of homestead by sale of the real estate owned by W. S. Crenshaw, at the time of his death or in the alternative the right of possession.”

Alternatively posed: Does Mordecai v. Scott, 294 Ala. 626, 320 So.2d 642 (1975) (which holds, under these facts, that § 6-10-60, Ala.Code 1975, vests the widow, as a matter of law, with the exclusive right to possess the land for life, and with an undivided one-eighth fee interest), preclude the widow’s right under § 6-10-61 to have the homestead sold and $6,000 of the purchase money paid to her in lieu of exempt homestead?

The trial Court ruled in favor of the widow; ordered the land sold; and directed $6,000 of the proceeds paid to her in lieu of her homestead exemption. We affirm.

Construing Tit. 7, §§ 661, 663, and 697, Ala.Code 1940, as amended (§§ 6—10-60, 62, and 101, Ala.Code 1975), in pari materia, Modecai held: Where the homestead is all the real estate decedent owns within the State at time of death; it does not exceed 160 acres, but exceeds $6,000 in value; no debts are owed; and there is no devise of the property, surviving spouse and adult children are entitled to an undivided equal interest in the realty with the right in the spouse to its exclusive possession for his or her life.

This cannot be interpreted as saying, however, that such interest in the surviving spouse is to the exclusion of the operative effect of the option granted the spouse by § 6-10-61. An accurate paraphrase of the pertinent provisions of § 6-10-61, within the factual context of this case, is as follows:

Because W. S. Crenshaw at the time of his death had no homestead exempt to him from levy and sale under process and had no other real estate out of which an exempt homestead could be carved, Ethel Irvin Crenshaw, his surviving spouse, may, by filing a complaint, have the homestead sold and $6,000 of the purchase money therefor applied by the court in accordance with the provisions of § 6-10 — 96.

For this Court to hold otherwise would be the equivalent of totally ignoring the existence of this Code provision and would be in direct conflict with its clear mandate that “. . . under no circumstances shall the surviving spouse ... be deprived of homestead or $6,000.00 in lieu thereof if [she] appl[ies] therefor . . . .”

AFFIRMED.

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


author: MADDOX, Justice. MADDOX, Justice.

text:
    Solomon GIBBS and Mary Gibbs v. TF & G INDUSTRIAL PARTNERS.
    78-12.
    Supreme Court of Alabama.
    March 2, 1979.
    Rehearing Denied April 6, 1979.

      Allen W. Howell, Montgomery, for appellants.
    John B. Scott, Jr., Montgomery, for ap-pellee.
   MADDOX, Justice.

The legal issue presented by this appeal is:

Is a judgment entered in a trespass action involving the same parties res adjudicata to a subsequent action brought to establish a boundary line between them? We hold that, under the facts here, the first judgment was not conclusive.

On June 21, 1976, the plaintiffs filed á trespass action against the defendant and sought damages for the construction of a drainage ditch, which plaintiffs claimed encroached on their land.

Plaintiffs were represented in the trespass suit by counsel other than their present counsel. The record shows that the defendant conceded that the ditch did, in fact, encroach on plaintiff’s land. The record further shows that the parties entered into a stipulation, and a consent judgment was entered on 25 February, 1977, which provided, in part:

“2. The Defendant shall forthwith cause the portion of the drainage ditch involved in this action to be moved so that no portion of said ditch is over the east line of the Defendant’s property as established by survey of Goodwyn and Mills, Inc.
“3. The removal of said drainage ditch by the Defendant shall be deemed in full satisfaction of any claims by the Plaintiffs for monetary damages on account of the encroachment of said ditch upon their said property.”

On 4 April, 1978, the Gibbs, represented by present counsel, filed a motion to set aside the consent judgment, claiming they never authorized their first attorney to agree to it, they knew nothing about its entry until 10 months after its entry, and that their first attorney was mistaken if he thought he had authority to agree to the consent judgment.

The trial court, after reviewing affidavits filed by both parties, and hearing arguments from both sides, denied the Gibbs’ motion to set aside the consent judgment under Rule 60(b) ARCP. The Gibbs did not appeal the denial of their motion. On May 31, 1978, they filed the instant suit to have the court establish what they contend is a disputed boundary between them. The defendant filed a motion to dismiss, in which it alleged:

“1. The issues raised by the Complaint have been adjudicated in a previous action — Solomon Gibbs and Mary Gibbs vs. TF & G Industrial Partners, Civil Action No. 2094 — 76, in the Circuit Court of Montgomery County, Alabama — wherein a consent judgment was entered on February 25, 1977 pursuant to a settlement stipulation between the parties confirming the common boundary line between the parties as established between (sic) Goodwyn and Mills, Inc., Registered Land Surveyors.”

A judgment in a trespass action does not necessarily settle anything beyond the particular facts of the trespass for which the suit is brought, but the judgment is conclusive of the matters actually litigated and determined. 50 C.J.S. Judgments § 742, p. 252. Title to land cannot be tried in a personal action of trespass, and questions of title are immaterial to the issue, except for the singular purpose of showing constructive possession in either party. Sadler v. Alabama Great Southern R. Co., 204 Ala. 155, 85 So. 380 (1920). Consequently, the question of title was not actually in issue and adjudicated in the trespass action; therefore, the consent judgment would not be conclusive of the instant action to establish the true boundary between the parties. We are aware that § 35-3-20, et seq. Code 1975, provides a method for determining boundaries in pending actions, but the record does not show that method was used in the trespass action. The parties, or the court, could have proceeded under this section of the Code and had the boundary judicially fixed. Neither did so. Failure to request this relief in the trespass action, however, does not foreclose the present suit. In other words, the judgment in the trespass action does not conclusively establish the true boundary line.

Although we reverse and remand, we note that the trial court may, but it is not required to, order a survey under § 35-3-3 Code 1975. In assessing the costs, the court may consider whether the boundary, as finally determined, is the same as the one mentioned in the consent judgment.

REVERSED AND REMANDED.

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

ON REHEARING

MADDOX, Justice.

In its application for rehearing, TF & G Industrial Partners contends that we should affirm the judgment below because the plaintiffs did not seek to have the boundary line judicially determined in their original trespass action, citing Du Boise v. Brewer, 349 So.2d 1086 (Ala.1977). TF & G Industrial Partners contends that even though Du Boise dealt with compulsory counterclaims, that “the Court was giving fair warning that in actions filed after adoption of the ARCP, parties in a boundary dispute would be expected and required to litigate all the issues in a single action.” It says, “Applied to the case now before the Court on appeal, Du Boise seems to say that under ARCP all monetary claims or other relief, legal or equitable, sought by the plaintiffs on account of any alleged boundary dispute or encroachment by the defendant could, and should, have been included in the initial action brought by the plaintiffs.”

Even though a plaintiff could join a boundary line dispute with a claim for trespass, the Rules of Civil Procedure do not compel him to do so.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: BEATTY, Justice.

text:
    Charles W. AMASON, v. FIRST STATE BANK OF LINEVILLE et al.
    77-666.
    Supreme Court of Alabama.
    April 6, 1979.

      Harold 0. McDonald of Baddley & McDonald, Birmingham, for appellant.
    Thomas Reuben Bell, Sylacauga, for ap-pellees.
   BEATTY, Justice.

This is an appeal from rulings entered by the trial court adversely to the plaintiff^ Charles Amason, on motions for summary judgment. We affirm in part, reverse in part and remand.

The case stems from a series of loan transactions between Amason and defendant, First State Bank of Lineville, Alabama [hereinafter the Bank]. The first three of these loans were transacted in. 1972 and 1973:

1. August 8, 1972 — Plaintiff Amason borrows $3,900 and gives the Bank a secured note.
2. September 11, 1972 — Plaintiff Amason borrows $1,400 and gives the Bank a secured note.
3. February 6, 1973 — Amason borrows $8,000 and gives the Bank a secured note.

Payments on each of these three debts were delinquent on September 26, 1974. On that date, and thereafter the following events occurred:

4. September 26, 1974 — Amason pays the Bank $10,500 and gives a new note for the balance. The notes of August 8, 1972 and September 11, 1972 were thereupon cancelled. The note of February 6, 1973 was “renewed.”
5. October 3, 1974 — Amason borrows $2,200 and gives the Bank a secured note.
6. April 2, 1975 — The debts of September 26, 1974, and October 3, 1974 are “combined” into a new note.

On November 20, 1975, George T. DeVore, the newly appointed President of the Bank, wrote Amason that he was expecting full payment of the April 2, 1975 note when it fell due on December 3, 1975. Thereafter both parties consulted counsel. On January 15, 1976 Amason paid the Bank $5,440.00 and executed a new note for the balance of his indebtedness to the Bank. This note was paid in full by Amason on November 16, 1976.

On January 14, 1977 this action commenced against the Bank and its president, George T. DeVore. Amason, as the-nominal representative of a class of bank debtors, and as an individual, alleged violations of the “Minicode,” Tit. 5, § 316, et seq., Code of Ala. (1973 Supp.) (presently Code of 1975, § 5-19-19, et seq.), and fraud. Among other defenses the defendant’s answer set up that of the statute of limitations.

On April 14,1977 the lower court entered an order ruling that a class action could not be maintained and granting defendant’s motion for summary judgment as to that aspect of the complaint. Subsequently Amason amended his complaint to delete the class action paragraphs and to add additional defendants to his individual action, Integon Life Insurance Corporation, and Irby Seawell Company. In a further amendment, Amason alleged fraud by those parties and the Bank in the overcharge of credit life and non-recording insurance. Motions for summary judgment were filed by all the defendants, and by Amason as well on a limited number of issues. After briefs were submitted and oral arguments heard on April 5, 1978 the court entered summary judgment in favor of Amason on that aspect of his complaint alleging an excessive finance charge on the January 15, 1976 note, but in favor of the defendants on all other grounds of the complaint as amended. Amason’s motion to set aside or vacate the judgment was overruled on June 1, 1978. Notice of appeal was timely filed thereafter.

Plaintiff/appellant Amason contends that the lower court erred in granting summary judgment on April 14, 1977 for the defendants/appellees on the class action aspects of the complaint. That order stated “[t]he court is of the opinion that the prerequisites to a class action as provided in Rule 23(a) do not exist, and that the facts in this ease do not support an order that a class action be maintained.”

Rule 23(a), ARCP inherently mandates that the person bringing the action must be a member of the class he seeks to represent. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Huff v. N. D. Cass Co. of Alabama, 468 F.2d 172 (5th Cir. 1972); 7 Wright & Miller, Federal Practice and Procedure: Civil § 1761 (1972). Amason’s complaint states that:

Plaintiff brings this action on behalf of himself and all members of a class composed of persons entering into consumer loan transactions with Defendant [Bank] . since July 20, 1972, . and whose indebtedness to the Defendant [Bank], as a result of said transactions is still owing, . . . . (emphasis added)

However, it appears from the affidavit of defendant, George T. DeVore, that Amason had no indebtedness still owing to the Bank at the time the action commenced, and in fact had not been indebted to the Bank since November 16, 1976. These facts were not controverted by Amason in his affidavit. Therefore, because it was established from the affidavits introduced on the defendants’ motion-' that Amason was not a member of the class which he sought to represent, we hold that the court did not err when it ruled that the class action could not be maintained. Amason contends, however, that this ruling was premature because there was no opportunity for an evidentiary hearing or discovery on the class action issue. Rule 23(c)(1), ARCP requires that:

As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.

See Bagley v. City of Mobile, 352 So.2d 1115 (Ala.1977). We hold that Rule 23(c)(1), ARCP was complied with in this case when the court entered its order of April 14, 1977. Further, no cases cited to us by the plaintiff mandate a postponement of the determination by the court for further discovery and an evidentiary hearing when the uncontro-verted facts show affirmatively that the plaintiff does not share the identity of interest required by Rule 23(a), ARCP.

Amason next contends the court erred in its April 5, 1978 grant of summary judgment for the defendants by holding that the statute of limitations (Code of 1975, § 5-19-19 (Minicode)) barred all of Amason’s claims except those stemming from the note of January 15, 1976.

Amason’s arguments are essentially two-pronged. On the one hand he argues that the note of August 8, 1972 as well as the note of January 15, 1976 fell within the statute of limitations found within the “Minicode,” Code of 1975, § 5-19-19. On the other hand Amason contends that even if the August 8, 1972 note falls outside the above time limit, it and all the other transactions complained of, are resurrected by virtue of Code of 1975, § 6-2-3. We will discuss these arguments seriatim.

Code of 1975, § 5-19-19 provides inter alia that “[N]o action . . . may be brought more than one year after due date of the last scheduled payment of the agreement pursuant to which the [excess] charge was made . . .’’In this instance the only transaction unquestionably within the statute’s terms is that of January 15, 1976. Amason’s contention that the note of August 8, 1972 falls within the statute’s limits is bottomed on the fact that the note was originally scheduled to run for 60 months. However, it appears without question that the note of August 8, 1972 was cancelled by agreement of the parties on September 26,1974 and thus ran only 26 months. Thus the statute of limitations of Code of 1975, § 5-19-19 began to run from the date of the last scheduled payment of the agreement immediately prior to the time in which the agreement ceased to legally exist. In this case the action was brought on January 14,1977, more than one year from the time of the last scheduled payment under the cancelled instrument and as such is barred by Code of 1975, § 5-19-19.

Amason’s second contention would have us resurrect both the agreement of August 8, 1972 and the other transactions as well under the statutory fraud provisions. Code of 1975, § 6-2-3 provides that:

In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.

This provision would in. effect stay the running of the general statute of limitations for torts (one year) until such time as Ama-son discovered, or ought to have discovered, the fraud. Of course the burden is upon he who claims the benefit of § 6-2-3 to show that he comes within it. Tarlton v. Tarlton, 262 Ala. 67, 77 So.2d 347 (1955); King Homes, Inc. v. Roberts, 46 Ala.App. 257, 240 So.2d 679 (1970); Mann v. Adams Realty Co., 556 F.2d 288 (5th Cir. 1977). In this case it is clear that Amason does not, as the trial court in effect held when it found that the fraud charges were barred by the statute of limitations. The case law amply supports the trial court. In Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636 (1973) the defendant also pleaded the statute of limitations. The plaintiff by replication embraced Tit. 7, § 42, Code of 1940 (presently Code of 1975, § 6-2-3). The defendants’ demurrer to that replication was sustained and on appeal upheld because

the replication failed (1) to aver with precision the facts and circumstances which allegedly were not discovered and to which appellants allegedly were defrauded, (2) to aver how or when these facts were discovered, (3) to aver what prevented these facts from being discovered before the bar of the statute became complete and (4) failed to aver facts acquitting appellants of all knowledge of facts which ought to have put them on inquiry.

Though replications are no longer necessary it is still incumbent upon one whose complaint on its face shows that some or all of its claims are barred by the statute of limitations to show that he falls within the saving graces of § 6-2-3. See Associates Financial Services Co. v. First National Bank, 292 Ala. 237, 292 So.2d 112 (1974). In this case Amason did not do so. All he did was generally allege that the fraud was not discovered until January 15, 1976. This did not provide the specificity required by the above authority. Therefore summary judgment was proper on these claims.

Having disposed of the plaintiff’s statute of limitations contentions we are faced only with the claims surrounding the note of January 15, 1976. Those claims are based upon fraud and violations of the “Mini-code.”

In regard to the former we hold that the lower court was not in error in entering summary judgment against the fraud claims in this action, particularly that claim surrounding the January 15, 1976 note. In Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970), Justice Har-wood wrote that “in actions of fraud and deceit, damages must be shown since injury is an essential element of such type of action.” Continuing, Justice Harwood cited Oates v. Glover, 228 Ala. 656, 154 So. 786 (1934) which held that there was no cause of action for fraud when one did not suffer actual damages. When on summary judgment the moving party shows absence of a genuine issue of fact as to a claim, the party opposing summary judgment cannot hold back his evidence but must produce at least a scintilla of evidence that would create a triable issue of fact. 6 Moore’s Federal Practice [hereinafter Moore’s] par. 56.-17[27]—Fraud (1976); Woodham v. Nationwide Life Ins. Co., Ala., 349 So.2d 1110 (1977).

In this ease the complaint of Ama-son as amended and the affidavits and exhibits introduced by the plaintiff on the motion for summary judgment show affirmatively that there is not a scintilla of evidence which would support a finding by a jury of injury to the plaintiff on this issue. In effect Amason avers that on or about January 15,1976 he paid $5,000 to the Bank because defendant George T. DeVore had misrepresented to him that he owed oníy $5,000 to the Bank, knowing that statement to be false. Amason continued that he “believed the statement, but was coerced by Defendant George T. DeVore to execute the note [of January 15, 1976] in further payment of said indebtedness.” (emphasis added) This allegation does not show that Amason was injured or damaged by the alleged fraud because his only action was to consciously make arrangements to satisfy a debt he had already incurred, and which was uncontrovertedly delinquent when he did so. To merely aver performance of what one is under a pre-existing duty to perform does not satisfy the legal requirement that one show he was injured by the misrepresentations upon which he relied. It being apparent that no injury or damage to the plaintiff resulting from the alleged fraud was shown the issue was ripe for summary judgment and the trial court acted properly in granting it. See 6 Moore’s, supra, n. 16.

Those contentions of Minicode violations surrounding the January 15, 1976 note are varied.

Amason first argues that the trial court reversibly erred in its ruling that the January 15, 1976 note complied with the law in regard to its attorney’s fee, and prepayment provisions. See §§ 5-19-10, 5-19-4(c). This contention is bottomed upon the ground that the January 15, 1976 note did not include language which the State Banking Department regulations require pursuant to Code of 1975, § 5 — 19—21. We find that while there may be administrative remedies available in such a situation the statute does not give an individual an action for damages based upon the mere form of the note’s language. In short, then, if there was error here it was without injury to the appellant and such will not support a reversal. Rule 45, ARAP.

The next source of contention over violation of the Minicode stems from the finding by the trial court that there was an excessive finance charge. The remedy for an excessive finance charge is provided in Code of 1975, § 5-19-19:

Any creditor charging a finance charge in excess of the amount authorized herein, except as the result of an accidental and bona fide error in computation, shall forfeit his right to any finance charge, and shall refund to the debtor the total amount of the finance charge, which may be done by reducing the amount of the debtor’s principal obligation. If the debt- or is entitled to a refund and the creditor refused to refund within a reasonable time after written demand, the debtor may recover a penalty of either twice the finance charge or 10 times the amount of the excess charge, whichever is greater, but in any event not less than $100.00, together with a reasonable attorney’s fee. If the creditor has made an excess finance charge in deliberate violation of or in reckless disregard for this chapter, the creditor shall have no right to receive or retain the principal or any finance charge whatsoever and the transaction shall be void. .

The Bank does not appeal from the entry of judgment against it on this issue. Therefore we need not discuss whether the trial court correctly interpreted the Minicode provisions on the subject of finance charge when it found a violation. See Code of 1975, §§ 5-19-1(1), 5 — 19-3. Amason however contends the trial court having, found the finance charge to be in violation of the statute erred in finding that only the $100.00 figure applied. This finding he argues depended upon the “state of mind” behind such a violation. The trial court was apparently aware of this fact when it ruled that there was no genuine issue of material fact relative to whether the violation was deliberate or in reckless disregard of the statute. We hold however that such an issue does exist.

On motion for summary judgment the burden is upon the movant to show that no genuine triable issue of material fact exists. Board of Sewer and Water Commissioners of the City of Mobile v. Alabama Power Co., Ala., 363 So.2d 304 (1978). In the instant case this maxim’s applicability is complicated because both parties moved for summary judgment on the issue of deliberateness or recklessness. However, we hold that where such cross-motions for summary judgment occur the burden remains on each movant to establish the propriety of the court entering summary judgment on its own motion. See 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727 (1973). The fact that the first party fails to carry the burden on his motion does not necessarily mean that the other party has carried the burden under his own motion and should be granted summary judgment. See Rains v. Cascade Industries, Inc., 402 F.2d 241 (3rd Cir. 1968); Walling v. Richmond Screw Anchor Co., 154 F.2d 780 (2d Cir. 1946); cert. denied, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640 (1946); 10 Wright & Miller, supra § 2720 (1973). This instance furnishes an example of a case where neither party has carried its burden on their respective motions and accordingly the issue was not ripe for summary judgment. This follows because we find that the record presents evidence from which the trier of fact might infer that there was a deliberate or reckless violation of the Minicode in the excess finance charge made on the January 15, 1976 note. Such allegations of fact as the overcharges made on other loan transactions between the Bank and Amason, and the hostility between the President of the Bank, George T. DeVore, and Amason are enough under our scintilla rule to create a triable issue on the state of mind surrounding the January 15, 1976 note violations. See Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975) (scintilla rule applicable to summary judgments). This holding is in line with the reluctance of our Court to uphold the grant of summary judgment where motive or intent is material. See e. g., Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975); See also 10 Wright & Miller, supra § 2730; 6 Moore’s Federal Practice par. 56.17[41.-1] (2d ed. 1976). Of course this issue is material because, as we have shown, its resolution will determine the measure of recovery by one who has been subjected to an excess finance charge. Code of 1975, § 5-19-19, supra. Accordingly the cause is reversed and remanded for resolution of the disputed issue of fact: whether the excess finance charge was made deliberately or in reckless disregard of the statute.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: MADDOX, Justice.

text:
    Lena F. DAVIDSON v. Calvin Guy DAVIDSON and Geraldine B. Davidson.
    77-677.
    Supreme Court of Alabama.
    April 6, 1979.
    John D. Cates, Jr., Montgomery, for appellant.
    Henry C. Barnett, Jr., Montgomery, for appellees.
   MADDOX, Justice.

Upon our own motion, this Court notes the lack of a final judgment due to the fact that the circuit court has ordered an accounting. We therefore dismiss the appeal for lack of the required certificate under ARCP 54(b). We note, however, that if the circuit court, in its discretion, executes a certificate and if a timely appeal is thereafter taken, this Court will consider the matter upon the record with proper supplementation (including the certificate) and upon the present briefs and oral arguments of the parties if the parties are so minded. Thames v. Gunter-Dunn, 365 So.2d 1216 (Ala.1979).

APPEAL DISMISSED.

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


text:
    GULF SOUTH CONFERENCE, an Unincorporated Association v. Julian R. BOYD.
    77-750.
    Supreme Court of Alabama.
    April 6, 1979.

      Oakley Melton, Jr., Montgomery, for appellant.
    Joe C. Cassady, Enterprise, for appellee.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Pike County declaring that the plaintiff, Julian R. Boyd, is eligible to participate in varsity football at Troy State University. We affirm.

On July 12, 1977 the plaintiff Boyd filed his original complaint for a declaratory judgment against the defendant, Gulf South Conference (hereinafter called GSC), asking that the court declare him eligible to participate in varsity football at Troy State University. Boyd’s complaint alleged that there is a justiciable controversy between the parties and that Boyd is eligible to participate in varsity football at Troy State University under the provisions of the eligibility rules and regulations of the GSC. Boyd requested the court to declare him eligible for the 1977 — 1978 football season.

The defendant, GSC, moved to dismiss the complaint or to quash service on the ground that the lower court lacked jurisdiction in the matter, that the complaint failed to state a claim upon which relief could be granted, and on other grounds. Following dismissal of this motion GSC filed its answer to the complaint.

A hearing was held on June 28,1978. On August 2, 1978 the trial judge found that under the evidence as applied to the rules and regulations of the GSC, Boyd was entitled to the relief requested. The court therefore ordered that Boyd was eligible to participate in varsity football at Troy State University for the 1978-1979 football season provided Boyd was a student in good standing and enrolled at the Troy, Alabama campus of Troy State University for the Fall Term 1978. Appeal followed in due course.

The essential facts are undisputed. Boyd entered Livingston University in the Fall of 1975 on a full grant-in-aid football scholarship and played on the Livingston University football team during the Fall of 1975. The full grant-in-aid football scholarship awarded to and accepted by Boyd was only for a one-year period (covering only the 1975-76 football season), and was renewable at Livingston University’s discretion, subject to Boyd’s acceptance. During the 1975 — 1976 football season both Boyd and Livingston University performed all of their commitments to each other as required by the terms of that one-year scholarship.

At the end of the 1975-1976 school year Livingston University Coach Jack Crowe forwarded Boyd a written offer to renew his football scholarship at Livingston University for the 1976-1977 school year. Boyd did not accept the offer. By telephone Coach Crowe urged Boyd to return and play on the Livingston football team. During that telephone conversation, Boyd informed Coach Crowe that he could not play football as a running back because of an asthmatic condition he had developed. Boyd also informed Coach Crowe that he did not want to return to Livingston University because he wanted to live in Enterprise, Alabama and work part-time with his father while attending , Enterprise State Junior College. Coach Crowe then told Boyd that he could be a specialist player as a punter on the team if Boyd’s asthmatic condition would not permit him to be a running back. However, Boyd still declined the offer of Livingston University to renew his grant-in-aid and finally told Coach Crowe that for personal reasons he chose not to go back to Livingston University.

Boyd later enrolled at Enterprise State Junior College for the 1976-1977 school year and was graduated in the Summer of 1977. Boyd then discussed with Dr. Stewart at Troy State University the possibility of transferring to Troy and playing on Troy’s varsity football team as a punter. He was informed that he had been ruled ineligible by the Commissioner of the GSC. Troy State, thereafter, appealed the Commissioner's ruling to the Faculty Appeals Committee of the GSC. That committee affirmed the Commissioner’s ruling that Boyd was ineligible to play football at Troy State.

Both Livingston University and • Troy State University are members of the GSC, an unincorporated voluntary athletic association organized by nine colleges and universities. The stated purpose of the GSC is to promote fair competition between the schools by developing rules and regulations mutually agreed upon by the member schools. The Conference is governed by a Constitution, Bylaws and Rules. Enforcement is exercised through the Commissioner' of the Conference and a Faculty Appeals Committee. The GSC is also- affiliated with the National Collegiate Athletic Association and subject to its rules and regulations.

The GSC eligibility rules at issue here are contained in Article VI, Section 7; Article V, Section 3(B) and (C); and Article VIII, Section 3, of the GSC Bylaws. GSC Bylaws, Article VI, Section 7, provides as follows:

A student-athlete who transfers from one GSC school to another will not be eligible to participate in any sport at the second school unless (1) the first one drops that sport and all other GSC rules are complied with, or (2) if the student qualifies under Bylaws Article V, Section 3, B or C, or (3) Article VIII, Section 3.

GSC Bylaws, Article V, Section 3(B) and (C) provides:

.Section 3. Migrants or Transfers are students who enter a college after having been registered in another college. (Attendance at Summer School excepted.) B. Any student who has attended a GSC school but has not been recruited in any way; has not signed a pre-enrollment application, has received no financial aid, and has not participated would be a Transfer upon attending any other GSC school.
C. When a GSC member does not renew the grant-in-aid of an eligible athlete according to NCAA Constitution 3-4(d), the athlete becomes a free agent and may .be signed by any other GSC school as a Transfer.

GSC Bylaws, Article VIII, Section 3, provides as follows:

A student-athlete who signs a PRE-ENROLLMENT APPLICATION with one GSC school (and same is duly processed with the GSC Commissioner) cannot participate with any other GSC school, except: A prospective student-athlete who does not accept the grant-in-aid at that school nor participate becomes a free agent at the end of two (2) years and can be signed by any GSC school.

The GSC contends that the lower court’s order was erroneous for two reasons; the first being that the lower court was without jurisdiction to intervene in the internal affairs of the GSC.

GSC contends that this Court’s decision in Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970) is conclusive on the issue of the lower court’s jurisdiction. The Scott case involved a transfer rule of a high school athletic association and not a college athletic- association. In Scott the complainant contended that the transfer rule of the Alabama High School Athletic Association was unconstitutional since his right to compete for an opportunity to play high school football involved a property right. The right to play high school football was alleged to be a property right on the ground that a good high school football player had an opportunity for a scholarship in many colleges of this state, and that to declare such a player ineligible to play football denied him an opportunity to compete for such a scholarship. This Court held that participation in high school athletics was a privilege and not a property right. This Court further found that “[i]f officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school’s athletic teams, and the member schools vest final enforcement of the association’s rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association.” Scott, supra, at 132, 237 So.2d at 655. Scott, however, is distinguishable from the instant case.

Scott involved a high school athletic association while the present case involves a college athletic association. There is a vast difference between high school football and college football. A high school athlete receives no present economic benefit from playing high school football, his only economic benefit being the possibility of his receiving an offer of a college scholarship. The Scott case held that such a possibility was too speculative to recognize as a property right. In contrast, the college athlete receives a scholarship of substantial pecuniary value to engage in college sports. Such scholarships often cover the complete cost of attending a college or university; therefore, the right to be eligible to participate in college athletics cannot be viewed as a mere speculative interest, but is a property right of present economic value. Cf. Byars v. Baptist Medical Center, Inc., 361 So.2d 350 (Ala.1978), and Carter v. Knapp Motor Co., 243 Ala. 600, 11 So.2d 383 (1943). See also Note, Judicial Review of Disputes Between Athletes and the National Collegiate Athletic Association, 24 Stan.L.Rev. 903 (1972) (hereinafter referred to as Review of NCAA Disputes); and Martin, The NCAA and the Fourteenth Amendment, 11 New Eng.L.Rev. 383 (1976). For these reasons Scott v. Kilpatrick, supra is not controlling.

The contention by the GSC that the lower court did not have jurisdiction basically stems from a body of common law involving private associations. See Review of NCAA Disputes, supra; and Chaffee, The Internal Af fairs of Associations Not For Profit, 43 Hsrv.L.Rev. 993 (1930). The general rule is that courts should not interfere with the internal management of such associations. Mackey v. Moss, 278 Ala. 55, 175 So.2d 749 (1965); and Local Union No. 57, et al. v. Boyd, 245 Ala. 227, 16 So.2d 705 (1944). The theory behind this non-interference doctrine is that the individual members of such associations have the freedom to choose their associates and the conditions of their association; further, it is argued, judicial review of the affairs of such associations would violate this basic principle of the freedom to associate. Still another justification asserted for the existence of the non-interference doctrine is that the rules and regulations upon which these associations operate are often unclear, and the courts would have no available standard upon which to determine the reasonableness of their rules. Chaffee, supra, at 1022. Even though we recognize the existence of this non-interference principle, nevertheless this Court has sanctioned judicial review when the actions of an association are the result of fraud, lack of jurisdiction, collusion, arbitrariness, or are in violation of or contravene any principle of public policy. Scott v. Kilpatrick, supra; Mackey v. Moss, supra; Local Union No. 57, et al. v. Boyd, supra; Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944); and Weatherly v. Medical and Surgical Society of Montgomery County, 76 Ala. 567 (1884).

We hold that the general non-interference doctrine concerning voluntary associations does not apply to cases involving disputes between college athletes themselves and college athletic associations. There is a cogent reason for this position. In such cases the athlete himself is not even a member of the athletic association; therefore, the basic “freedom of association” principle behind the non-interference rule is not present. The athlete himself has no voice or bargaining power concerning the rules and regulations adopted by the athletic associations because he is not a member, yet he stands to be substantially affected, and even damaged, by an association ruling declaring him to be ineligible to participate in intercollegiate athletics. Thus he may be deprived of the property right eligibility to participate in intercollegiate athletics. While there is a split of authority on the question, cf., e. g., NCAA v. Gillard, 352 So.2d 1072 (Miss.1977), we agree with the following statement of the Oklahoma Supreme Court:

It is asserted by the NCAA that judicial scrutiny of the bylaw is inappropriate. Courts are normally reluctant to interfere with the internal affairs of voluntary membership associations, however, in particular situations, where the considerations of policy and justice are sufficiently compelling judicial scrutiny and relief are available. . . . The necessity of court action is apparent where the position of a voluntary association is so dominant in its field that the membership in a practical sense is not voluntary but economically necessary. It was proper for the trial court to examine the validity of the bylaw. [Board of Regents of the University of Oklahoma v. NCAA, 561 P.2d 499, 504 (Okl.1977)]

We further find that a declaratory judgment action was proper. All that is required for a declaratory judgment action is a bona fide justiciable controversy. East Gadsden Bank v. Bagwell, 273 Ala. 441, 143 So.2d 438 (1962). Such a bona fide controversy existed on the issue of Boyd’s eligibility under the GSC bylaws. This controversy affected a substantial property right. In the past this Court has approved the use of a declaratory judgment action in cases involving voluntary associations which were subject to the non-interference rule. Francis v. Scott, 260 Ala. 595, 72 So.2d 98 (1954).

The defendant GSC also contends that the lower court’s order was erroneous because it was contrary to the terms of the GSC transfer rule under the undisputed facts of this case. That contention is untenable. The evidence introduced in the lower court tends to show that Boyd was, in fact, eligible under two of the bylaws. GSC Bylaws, Article Y, Section 3(C) states in effect that an athlete becomes a free agent and may be signed by any other GSC school if a GSC member school does not renew the grant-in-aid of that athlete. Here Boyd’s one-year scholarship was not renewed because, although Livingston offered to renew it, Boyd did not accept that offer of renewal. Since there was no renewal of the scholarship, Boyd became a free agent and was free to sign with whatever school he chose. Livingston University was not obligated to renew or offer to renew Boyd’s scholarship, and Boyd was not obligated to accept Livingston’s offer. Both parties had performed their obligations to each other and neither party owed any further obligation to the other at the close of the 1975— 1976 football season.

Boyd was also eligible under GSC Bylaw, Article VIII, Section 3, which states in pertinent part that “A prospective student-athlete who does not accept the grant-in-aid at that school nor participate becomes a free agent at the end of two (2) years and can be signed by any GSC school.” Since Boyd’s original scholarship with Livingston was effective only for the 1975-1976 football season, Boyd became a prospective student-athlete for Livingston at the end of his one-year scholarship. Because he did not accept Livingston’s offer, did not attend school at Livingston, and did not play football for two years, he became a free agent. The lower court was therefore correct in ruling that Boyd was eligible to play football at Troy State University for the 1978-1979 football season since the 1978 football season occurred at the end of two years after Boyd’s refusal to accept the second grant-in-aid offered by Livingston University.

It should be noted that the relationship between a college athlete who accepts an athletic scholarship and the college which awards such an athletic scholarship is contractual in nature. The college athlete agrees to participate in a sport at the college, and the college in return agrees to give assistance to the athlete. The athlete also agrees to be bound by the rules and regulations adopted by the college concerning the financial assistance. Most of these rules and regulations are promulgated by athletic associations whose membership is Composed of the individual colleges. The. individual athlete has no voice or participation in the formulation or interpretation of these rules and regulations governing his scholarship, even though these materially control his conduct on and off the field. Thus in some circumstances the college athlete may be placed in an unequal bargaining position. The GSC’s interpretation of the bylaws in question was that a student football athlete who transfers from one GSC school to another will not be eligible to participate in football at the second school unless the first school drops football or unless the first school does not (merely) offer to renew the grant-in-aid scholarship of the student-athlete. The lower court rejected this interpretation and, as we have shown, that decision was correct. Accordingly, let the judgment be affirmed.

AFFIRMED.

TORBETT, C. J., and JONES and SHORES, JJ., concur.

MADDOX, J., concurs in result.


text:
    Vondell H. SPEEGLE v. Kenneth SPEEGLE et al.
    78-75.
    Supreme Court of Alabama.
    April 6, 1979.
    Asa Hartwig, Cullman, for appellant.
    Thomas A. Smith, Jr., Cullman, for appel-lees.
   PER CURIAM.

The appeal is dismissed ex mero motu for failure to comply with Rule 54(b), ARCP.

APPEAL DISMISSED.

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


author: BRADLEY, Judge.

text:
    Clifton HARDY v. John TABOR, Jr.
    Civ. 1596.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    As Corrected on Denial of Rehearing Jan. 10, 1979.
    James M. Gaines, of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    Audrey L. Roberts, Huntsville, for appel-lee.
   BRADLEY, Judge.

The suit out of which this appeal arose began when plaintiff (John Tabor) filed a claim for damages against defendant (Clifton Hardy) in district court. Because the amount in controversy was less than $500, the matter was treated as a small claims action. Following a hearing at which both parties to the suit presented evidence, the district judge rendered a judgment in favor of plaintiff for the sum of $400 and costs. Thereafter, defendant filed notice that he would appeal the judgment to the Madison County Circuit Court. Once defendant’s appeal was perfected and the circuit court had obtained jurisdiction of the matter, plaintiff filed an amended complaint seeking damages in the amount of $560. On the date set for trial, defendant’s attorney made a motion to the court requesting that his client’s appeal he dismissed. The circuit court denied defendant’s request. The case was then tried before a jury and plaintiff was awarded a judgment for $560. Defendant subsequently filed this appeal claiming that the circuit court improperly denied his motion requesting dismissal of his appeal from the judgment of the district court. We find no merit to defendant’s contention.

A district court shall exercise exclusive jurisdiction over all civil actions in which the amount in controversy does not exceed $500. § 12-12-31, Code of Alabama 1975. Any party may appeal from a final judgment of a district court in such matters. § 12-12-70, Code of Alabama 1975. And, with some exceptions, all appeals from final judgments of the district court are tried de novo in the circuit court. § 12-12-71, Code of Alabama 1975. Moreover, if a defendant appeals to the circuit court from a judgment rendered by the district court, the plaintiff is entitled to recover an amount in excess of the jurisdiction of the district court. Rule 13(j), ARCP. In other words, once defendant perfects his appeal to the circuit court and the court obtains jurisdiction, plaintiff can increase the amount he is seeking as damages.

In the instant case plaintiff originally sought $469 as damages. This amount was less than the $500 jurisdictional limit of a small claims court. However, when defendant appealed the case to the circuit court, plaintiff was entitled to seek and obtain a recovery in excess of $500. Plaintiff was awarded $560 and we can find nothing which would compel the reversal of that judgment.

When defendant perfected his appeal the circuit court obtained jurisdiction of the matter. And once the court’s jurisdiction was invoked it was necessary that plaintiff be allowed to pursue his claim for a new amount by means of a trial de novo. Consequently, the refusal of the circuit court to grant defendant’s request that his appeal be dismissed had no bearing on the conduct of the trial of plaintiff’s claim for the full amount of his damages. Had the circuit court granted defendant’s motion to dismiss, plaintiff would nevertheless have been entitled to proceed on his complaint seeking damages in excess of those awarded him by the small claims court. Since the circuit court in the exercise of its discretion refused to dismiss defendant’s appeal, the result was the same — that is, plaintiff was allowed to try his case in a de novo proceeding.

Our conclusion in this instance is in accordance with the purpose and rationale of Rule 13(j). Indeed, the committee comments to Rule 13(j) state:

Rule 13(j) provides that when a defendant appeals a case from a lower court to the circuit court and obtains a trial de novo, the plaintiff then could recover an amount in excess of the jurisdiction of the lower court. In many cases, in order to bring the case in one of the lower courts, a plaintiff will waive a portion of his claim for a quick and inexpensive trial. The defendant then appeals the case to the circuit court often for the purpose of delaying the collection of the judgment well knowing that there is a lid on the amount of the plaintiff’s recovery. In such cases, the plaintiff will be entitled to claim and recover the full amount of his damages in the circuit court. Such a rule, no doubt, would prevent many cases from being appealed to the circuit court either for the purpose of delay only or for the purpose of securing a second trial knowing that he [defendant] has all to gain and nothing to lose by so doing. [Emphasis supplied.]

In the present case defendant chose to appeal from the judgment of the district court. In doing so he incurred the risk that plaintiff would recover damages in excess of that judgment by means of a trial de novo in the circuit court. As a result of the trial in circuit court, plaintiff received a larger judgment than he had been awarded in district court. Accordingly, we cannot now hold that defendant should be permitted to' escape the adverse results of his own legal gambit. The jury verdict appealed from is therefore affirmed.

MOTION TO DISMISS APPEAL AND REQUEST FOR ATTORNEY’S FEE DENIED.

AFFIRMED.

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


author: MADDOX, Justice. BLOODWORTH, Justice

text:
    In re Clifton HARDY v. John TABOR, Jr. Ex parte Clifton Hardy.
    78-224.
    Supreme Court of Alabama.
    April 6, 1979.
    James M. Gaines, Huntsville, for petitioner.
    Audrey L. Roberts, Huntsville, for respondent.
   MADDOX, Justice.

AFFIRMED; MOTION TO STRIKE A FRIVOLOUS APPEAL AND FOR DAMAGES DENIED.

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

BLOODWORTH, J., concurs specially.

JONES and SHORES, JJ., dissent.

BLOODWORTH, Justice

(concurring specially.)

I concur in the opinion of Justice Maddox to affirm because in this case plaintiff-ap-pellee amended his demand after appeal de novo. If plaintiff had not amended, I would hold defendant-appellant had a right to dismiss.


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. Lois W. CLARK.
    Civ. 1638.
    Court of Civil Appeals of Alabama.
    Jan. 31, 1979.
    Rehearing Denied Feb. 28, 1979.

      Frank D. Marsh, Asst. Gen. Counsel, State of Ala., Dept, of Indus. Relations, Montgomery, for appellant.
    Earl Y. Johnson, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Claimant was awarded compensation after appeal to circuit court. The Department appeals. The only issue is whether testimony of claimant as to a physical condition suffered from her employment is sufficient, without medical evidence, to support the finding of the court that she left her job for good cause connected with her work. We find the issue in favor of claimant and affirm the judgment of the trial court.

The testimony of claimant was that she had worked as a sewer for Good Luck Glove Co. for some three weeks when she was given a new and different material to sew into gloves. After sewing on the material for a short time, she began to itch badly and a rash came on h'er skin resembling measles. She notified her superiors of her difficulty and requested that she be given other materials to sew. She was informed there were no others. She quit her job. She had sewed gloves for several years before this occasion and was sewing gloves at the time of trial. She had never sewn the material she was given when her rash appeared. She did not go to a doctor and get a medical opinion as to the cause of her rash. She never had it again after leaving Good Luck Glove.

The Department contends medical testimony as to cause and effect between job and injury to health is necessary for a claimant to carry the burden of proof when claimant claims good cause for leaving employment. Department submits its contention is supported by our case law. We do not agree.

The cases cited and relied upon by the Department do not state that medical evidence is required to support a claim of compensation for leaving employment because of ill health connected with her work. Those cases merely comment upon the absence of testimony, medical or otherwise, to sustain claimant’s claim of good cause for leaving her employment. Department of Industrial Relations v. Estes, 45 Ala.App. 360, 231 So.2d 137 (1970). Though often medical testimony may present more satisfactory and conclusive evidence of cause and effect, we know of no case holding that such testimony is necessary to carry claimant’s burden of proving that the job caused the injury or disease. We have held even in workmen’s compensation cases that extent of disability may be established without expert medical testimony. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973).

We have reviewed the testimony of plaintiff heard orally by the trial court, and find the judgment sufficiently supported thereby so that it does not appear to us to be wrong or unjust. It is therefore affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS.
    78-333.
    Supreme Court of Alabama.
    April 20, 1979.
   BLOODWORTH, Justice.

Writ Denied.

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