text:
    Bishop SALTER and Daisy Mae Salter v. Johnnie M. GRACE.
    77-584.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Donald V. Watkins of Gray, Seay & Langford, Montgomery, for appellants.
    Windell C. Owens, Monroeville, for appel-lee.
   MADDOX, Justice.

This is a boundary line dispute.

The trial judge heard the evidence without a jury in August, 1972; took the case under advisement; and in July, 1977, appointed a registered surveyor “to survey and determine the true boundary line between the parties and to mark the same by setting concrete judicial markers at each end of the line and along the line as he determines necessary to adequately mark the line between the parties . . . ”

On May 1, 1978, without further hearing, the court entered a final judgment fixing the boundary line between the parties as set by the surveyor.

Appellants, without filing a post judgment motion with the trial court, filed a notice of appeal here, and argue that the due process provisions of the United States and Alabama constitutions were violated when the trial judge entered a final decree without holding a hearing to allow them to object to the court appointed surveyor and his report. They also claim that the judgment should be set aside because Alabama’s Code provisions dealing with the determination of boundaries require that the “survey- or shall appear on such day as is fixed by the court for examination by the court or any interested parties or their attorneys relative to such report and map or plat.” Ala.Code § 35-3-24 (1975) (Emphasis added.)

In McCullar v. Conner, 287 Ala. 455, 252 So.2d 422 (1971), this Court held that a party cannot raise for the first time, on appeal, the trial judge’s failure to follow the statutory requirements for appointing a surveyor and allowing parties to object to it. A remedy for testing the judgment was available; that remedy being a motion to set aside the judgment in order to allow objections to be filed. Rules 59 and 60, ARCP. In short, the judgment entered was not void; therefore, if the appellants desired relief from the judgment, they should have filed a motion under Rule 59 or 60, ARCP. McCullar, supra.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Seventh WONDER, an Unincorporated Assoc., William Jerome Thornton et al., etc. v. SOUTHBOUND RECORDS, INC.
    77-602.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Jock M. Smith, Tuskegee Institute, for appellant.
    Carolyn D. Gaines of Chestnut, Sanders & Sanders, Selma, for appellee.
   SHORES, Justice.

This is an appeal from an order denying defendants’ motion to vacate a default judgment.

Suit was filed against the defendants on March 11, 1975. They timely filed an answer and cross-claim. Trial was set for October 11, 1976. They failed to appear; and the trial court entered a default judgment in favor of the plaintiff. After taking testimony on damages, the court entered a judgment in plaintiff’s favor for $50,000.

On September 14, 1977, the defendants filed a motion under ARCP 60(b)(4). The motion was denied. This appeal followed.

We affirm. By their ARCP 60(b)(4) motion, the defendants-appellants assert that the default judgment is void on its face because they had no notice under ARCP 5(a). That rule requires notice to parties not in default. These parties were in default, having failed to appear on the day the case was set for trial. No notice was required, therefore, under Rule 5(a).

They also contend that the judgment is void because they did not receive notice pursuant to ARCP 55 at least 3 days before hearing was held on the plaintiff’s application for default. By the express terms of Rule 55, . . judgment by default may be entered by the court on the day the case is set for trial without such 3 days notice. . . ” The record affirmatively shows that default was entered by the court on the day the case was set for trial. The 3-day notice was, therefore, not required.

The appellants made only a Rule 60(b)(4) motion, which authorizes relief from void judgments. There is no discretion on the part of the trial court on a Rule 60(b)(4) motion. If the judgment is void, it is to be set aside; if it is valid, it stands. Therefore, the only question before us is whether the judgment is void. A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process. Wright & Miller, Federal Practice and Procedure: Civil § 2862; Restatement of Judgments, § 8.

In this case, the trial court had subject matter jurisdiction over the parties. They were not denied due process. They were properly before the court and simply failed to appear when the case was set for trial. Under those circumstances, no notice was required by Rules 5(a) or 55, ARCP.

The judgment was not void and, therefore, the trial court did not err in refusing to vacate the same.

The defendants-appellants did not challenge the judgment on any other ground. We, therefore, must affirm.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    STATE of Alabama v. Robert H. BASSETT et al.
    77-650.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    James C. Wood, Sp. Asst. Atty. Gen., Mobile, for appellant.
    Samuel L. Stockman and J. B. Sessions, III, Mobile, for appellees.
   MADDOX, Justice.

The State filed condemnation proceedings in Mobile County, and being dissatisfied with the award in the Probate Court, the State appealed to the Circuit Court, and moved for summary judgment. The State’s motion was denied, but the Circuit Court certified the question for interlocutory appeal as provided by Rule 5, ARAP. This Court exercised its discretion and granted permission to appeal on June 29, 1978.

After a thorough review of the record, we conclude that permission to appeal under Rule 5, ARAP, was improvidently granted. Cooper v. Nettles, Ala., 364 So.2d 309.

APPEAL DISMISSED.

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


author: SIMMONS, Retired Circuit Judge.

text:
    Edward Lawrence RHODES v. STATE.
    3 Div. 817.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Rick A. Williams, Montgomery, for appellant.

      William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   SIMMONS, Retired Circuit Judge.

Appellant, an indigent represented here and below by appointed counsel, was indicted for robbery, convicted, and punishment fixed by the jury at 25 years in the penitentiary. Judgment was duly entered. An indigent’s appeal was taken.

It appears in the record that the offense was committed on July 19, 1974. The indictment for the offense was returned on February 3, 1977. The trial was begun on Monday, August 19, 1977.

Prior to the trial, defense made a motion to dismiss the case and discharge the defendant, because his right to a speedy trial was violated. This motion was heard in camera on June 24, 1977. We quote from the supplemental record.

“THE COURT: We are here today on a Motion to Dismiss the case and discharge the defendant based on the fact that he was indicted February of 1977. That the alleged offense occured [sic] in July or August of ’74 and he’s been in the custody of the State of Louisiana since 1974 and that there has been a delay of some three years before an indictment has been issued.”

It appears that at the trial a file, marked Exhibit I, was introduced with a stipulation between counsel, the court approving, that the facts indicated by the file were true and correct. This file evidently shed some light on the issues presented by the motion to dismiss.

We have searched the record with proper diligence and failed to find this Exhibit set out. The record is silent as to the facts appearing in the file. The trial court evidently considered these facts in reaching a judgment denying the motion to dismiss the case.

This Court does not take judicial knowledge of the proceedings and records in the Circuit Court. This Court takes judicial knowledge of its own record. Statham v. Statham, 282 Ala. 322, 211 So.2d 456; Roan v. Smith, 272 Ala. 538, 133 So.2d 224. We take notice of the Circuit Court records where they are certified to this Court. Davis v. Davis, 261 Ala. 95, 72 So.2d 852. Courts judicially know their own records. Lovejoy v. State, 32 Ala.App. 110, 22 So.2d 532(2), Cert. Den. 247 Ala. 48, 22 So.2d 537.

This Court is appellate only and cannot review questions that are not properly presented. Wetzel v. State, 32 Ala.App. 32, 21 So.2d 557(3), Cert. Den. 246 Ala. 525, 21 So.2d 558.

Where, as here, there was evidence on the motion before the trial court (Exhibit I) that is not before this Court, we will not review the ruling of the trial court that denied the motion. Stephens v. State, 37 Ala.App. 522, 72 So.2d 116, Cert. Den. 260 Ala. 700, 72 So.2d 120; Seibold v. State, 287 Ala. 549, 253 So.2d 302(22). An appellant is charged with the duty of presenting correct record to an appellate Court, and this Court can deal on review only with the record as filed by appellant. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831(1).

Appellant’s next contention is that the trial court erred to reversal in its failure to grant his motion for a mistrial.

Montgomery County Deputy Sheriff Mills testified that defendant attempted to escape during the noon hour of the first day of trial. Several shots were fired at defendant during the escape episode and he was injured. Defendant was taken to the hospital; that he did not return to the court for trial until the following day, August 30, 1977; he was dressed in hospital garb. (T. 145-148). The disturbance was reported over a local television station and identified defendant as the perpetrator of the disturbance.

We fail to see how defendant can blame anybody but himself. He was the creator of his own misconduct and invited the shooting. One cannot purposefully create grounds for a mistrial by deliberately causing a disturbance during trial. Such a conclusion is obviously necessary, otherwise a defendant faced with imminent conviction could interrupt the trial, prejudice himself in the jury’s eyes and, therefore be entitled to another trial. Hayes v. State, Ala.Cr.App., 340 So.2d 1142(3), Cert. Den. 340 So.2d 1144; Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

It appears in the record that the defense counsel questioned the jury individually as to whether their knowledge of the escape attempt influenced their verdict. Each juror stated that his verdict was based solely on the evidence presented by the witnesses and that his knowledge of the escape had no influence on his verdict.

It appears that defendant, after intimidating the robbed victim by threats and after being handed the money, hit his victim with his pistol, saying, “I’ll give you something to remember me by.” Several thousand dollars were taken from the robbed victim.

It appears to us that the punishment fixed by the jury was reasonable in view of the viciousness of the attack, and we cannot say that they were prejudiced by their knowledge of the escape attempt.

We conclude from our knowledge of the record that the trial was free of prejudicial error in overruling defendant’s motion for a mistrial because of the escape incident that was known to the jury. Nor do we find any error in the trial court’s other rulings.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


text:
    Ex parte Edward Lawrence Rhodes. Re Edward Lawrence RHODES v. STATE of Alabama.
    77-708.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rick A. Williams, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   MADDOX, Justice.

We granted certiorari primarily to review the opinion of the Court of Criminal Appeals, 364 So.2d 1175, to determine whether that court correctly held that petitioner was not prejudiced during his trial because members of his trial jury knew that he had attempted to escape while his trial was in progress, but we also have examined petitioner’s argument that he was not granted a speedy trial. We find that the court committed no error as to either issue.

On the speedy trial question, the Court of Criminal Appeals, after reviewing the available evidence, determined that petitioner failed to show, on appeal, that his constitutional right to a speedy trial had been denied him. The Court of Criminal Appeals applied the correct legal principles on the speedy trial issue.

We now consider petitioner’s claim that he was entitled to a mistrial because members of this trial jury had seen a television news account of his escape. We agree with the Court of Criminal Appeals that “[o]ne cannot purposefully create grounds for a mistrial by deliberately causing a disturbance during trial.” Hayes v. State, Ala.Cr.App., 340 So.2d 1142; cert. den., Ala., 340 So.2d 1144 (1976); see also, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

AFFIRMED.

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


text:
    Jacob Esaw WOODS, alias v. STATE.
    8 Div. 46.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.
    Michael B. Maddox, of Guin, Bouldin, Porch & Maddox, Russellville, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for murder in the first degree. At arraignment, in the presence of counsel, appellant entered a plea of not guilty and not guilty by reason of insanity. Following a trial by jury, appellant was found guilty: the court (not the jury) duly adjudged him guilty and sentenced him to life imprisonment. He appealed.

Appellant was an indigent. Appointed counsel at nisi prius represents appellant on this appeal.

Defendant filed a motion for a new trial which the court overruled. The motion asserted inter alia: (1) that this verdict is contrary to the evidence in the case; (2) that the verdict is contrary to the “way” [sic] of the evidence in this case; and (3) for the verdict of the jury disregards the testimony of Dr. J. W. Glaister and Dr. Joseph Woddail, which testimony was not rebutted by any witness. The ruling of the court on this motion is the subject of appellant’s contention for reversal of the judgment and remand of the cause.

We think evidence pertinent to this issue should be delineated in reasonable detail to the end that the mental condition of defendant on the date of the homicide (May 29, 1976) may appear.

The deceased victim was Wanda Randolph, a ten-year-old black child. Defendant was a black man sixty-three or sixty-four years of age at the time of the homicide.

It appears that defendant was acquainted with the victim sometime before May 29, 1976. On that date he came to her house in the daytime when both of her parents were away.

Betty Jean Randolph (the victim’s sister), fourteen years of age, testified that she and her six-year-old brother James were at their home on Gaines Street in the early afternoon of May 29, 1976. At that time, Betty Jean testified, defendant came to the front door and said, “I caught you, I caught you.” When the children saw that appellant had a knife in his hand, they fled to their grandmother Reynolds’ house a short distance away. Defendant followed right behind them. Betty Jean further testified when she arrived at the house, her two sisters Mattie and Wanda were on the porch, “but they just run on in, didn’t pay any attention to me.” All four children then entered the house and walked through it to the bathroom where two plumbers were working on the fixtures.

Betty Jean also testified that at this time she told Mattie and Wanda, who were standing in the door, that “Jacob (defendant) was after me and my brother with a knife and I heard him step on the porch.” When she heard the footsteps on the porch, she and her brother hid behind “the orange chair” just outside the bathroom. From that vantage point, Betty Jean saw defendant enter the house and heard him say, “I caught you, I caught you.” Appellant then went into the bathroom. Betty Jean left her hiding place telling her brother to stay behind the chair. After saying, “I caught you, I caught you,” defendant slapped Wanda. Wanda screamed. She fell into the bathtub on her back. Betty Jean then saw defendant pull a knife with his right hand. Mattie ran and Wanda screamed for help. Defendant ran out into the yard with his knife in his hand. Betty Jean testified that defendant' ran down the road and “told me he was going to kill me.”

On cross-examination, Betty Jean stated that about a day before the trouble happened, defendant accused her of going with white boys. This happened at the house of witness. She said defendant acted “kind of normal like.”

On re-direct, witness testified that neither she nor her sisters had been going around or playing with white boys.

Mattie Randolph testified that just before the incident she was at the home of her grandmother, Willie Reynolds. She got a key and admitted some plumbers into the house of her grandmother. This was done at her grandmother’s request who was at work.

Defendant came to the bathroom and said, “I caught you, I caught you.” Witness then crawled under his arm and he said, “I caught you, I caught you.” Witness did not see what happened.

James Randolph, father of the children (Wanda, et al.) called by the State, testified on cross-examination that, on an occasion prior to the incident, defendant came to his house and “accused them (my children) of things and I told him not to come back no more.” Woods told him that he had seen a bunch of boys hanging around them. He told defendant he was wrong. Woods told him that he “would be sorry.” He did not notice anything unusual about defendant.

John Wilburn, State Toxicologist, testified that Wanda’s death “was due to a hemorrhage, which was associated with the stab wound of the chest.”

Stratt Barnes, the plumber working in the bathroom, testified that the defendant slapped Wanda into the bathtub and then hit her again. Defendant then acted like he was going to pick her up, but instead he stabbed her with a knife which Barnes did not see until defendant pulled it out. Defendant wiped the knife off and then backed out the door. The fatal incident occurred in about ten seconds. Barnes assisted the wounded child who died right away. Defendant ran.

P. J. Hargett testified as a witness for the State. He was the plumber’s helper in the bathroom where the homicide occurred. This testimony was about the same as the plumber’s.

John Robinson, a city policeman in Rus-sellville where the incident occurred, stated he first went inside the house and then went outside and saw a man running down a gravel road hollering he was the one that killed the little girl and that he stabbed her. The man, Robinson testified, told him that he had told her to quit running around with white kids. He also stated that the defendant said the knife was in his left inside coat pocket, and it was then retrieved by Officer Gaba. Robinson testified that he had not noticed anything unusual about defendant.

Mike Gaba, a Russellville police officer, was next put up by the State. He testified about defendant running toward him and Officer Robinson. He also testified that defendant said “ . . . I killed her, I told her not to mess around with those white boys.” He also told about finding the knife on defendant’s person. He noticed nothing unusual about defendant’s appearance.

Terrell Potter, an investigator for the District Attorney’s office, was the State’s next witness. He testified about taking some photographs at the scene. These were admitted in evidence. He also took a photograph of the victim’s wound on her body. Officer Burns Saint testified for the State about the lab in Florence.

The State then rested.

The defendant called Dr. Joe Woddail as a witness. Dr. Woddail was a physician with a specialty in psychiatry at Bryce Hospital for four and one-half years. Dr. Wod-dail was a member of the Forensic Board at Bryce Hospital. This Board evaluates mental patients at Bryce who are charged with crimes and sent to Bryce for examinations. Dr. Woddail was also a consultant to the Board. He examined defendant who was sent there by the court.

The Board was composed of Marie Robinson, a social worker; Margaret Kay Witt, a psychologist, with a master’s degree; Annette Brodsky, who has a Ph.D. in psychology; Patricia Larkins, who has a master’s degree in psychology, and Dr. Woddail.

Dr. Woddail further testified that “when a person is admitted to the Forensic Program, he would first get a physical examination by a general physician. I would do a mental status examination, the social worker would get a history from the patient’s family or from the patient and from the family and from any other reliable source that they would obtain information from and the psychologist would perform psychometric tests and after we got all this data together, we would try to make an evaluation.”

An evaluation was made of defendant.

“Q What determination did the Board reach concerning Mr. Woods?
“A Well the first time, we met on October 6, 1976, there was an opinion of the Board as a whole that further information was needed to arrive at an opinion and then on November 10, it was determined that he was not competent to stand trial at this time.
“Q Did you, as a Psychiatrist, make a determination as to what condition he was suffering from?
“A I did.
“Q What did you decide, in your professional opinion, he was suffering from?
“A Schizophrenia Paranoia.
“Q What do you mean, when you say Schizophrenia?
“A Well, it’s a similar term that we use instead of using the word psychosis or a legal term, which is insanity. As far as we’re concerned, they are all the same thing. Now, Schizophrenia paranoid type is a specific type of a major mental illness or a psychosis, depending on what the person’s symptoms are. In his case, he had two major symptoms that persisted in this diagnosis. One, he was withdrawn and cut loose from reality. The other was an over suspiciousness. Now when I say over suspiciousness, I’m not talking about normal suspiciousness in his relationship with the people there and me and his relationship that he discussed in his community and some of his beliefs, which could not be changed, were so exaggerated and suspicious in manner until it just fitted the criteria of paranoid schizophrenia. Had his illness progressed a little further, he would have—
“MR. JOLLY: I object to had his illness progressed any further and to what there might have been.
“THE COURT: Overruled.
“A He would have had, in my experience, illusinations (sic) which is voices talking to him or saying things that weren’t really there and this is what I stated in my Mental Status Examination. It was very difficult to make this decision, at that time, as to whether he was responding to voices that weren’t there. I could not elicit this in a definite manner, so I left it out. Now, the other part of further development paranoid schizophrenia would be delusions, delusions of grandeur or of persecution. He had over suspiciousness very similar to delusions of persecution, to-wit, or what I’m trying to say, everybody was against him, at that time. What he talked about mostly was the white race, but at the same time, he, also, was very suspicious toward the black race.
“Q You said he had exaggerated suspicions. Can you give us some examples of these exaggerations, he mentioned to you?
“A As I mentioned he felt and he described as he talked about himself and experiences in the past months or year or so, that all of the white people were going to harm him. They were against him and he had to be continually on the defensive that they didn’t harm him or destroy him and then, I added we talked some about the black race and it was sort of a global illness that had invaded his people.
“Q Are these fears real to a person in that condition?
“MR. JOLLY: Objection, Your Honor.
“THE COURT: Overruled
“A Oh yes.
“Q If there was testimony in this case that the defendant thought that the victim was having an affair with some people that didn’t exist, would this be compatible with his condition as you found it when you examined him?
“A Yes.
“Q That would be this over suspiciousness at work?
“A Yes.
“Q When did you first see Mr. Woods?
“A Now this admission says September 23, 1976, is when he was admitted.
“Q You would have seen him shortly after that?
“A I’m sure I saw him several times, shortly after that.
“Q Doctor, in your opinion and based on your experience and the study you have made of this defendant, was his mind so defective mentally, at the time you saw him, as to destroy his power of choice between right and wrong and his free agency destroyed to such an extent that he was incapable in avoiding the act in question at the time?
* * * * * *
“A That would be my opinion.
“Q And do you have an opinion, as to how long this condition had existed in the man?
“A I have already mentioned for many months or for at least a year or two.
“Q What became of Mr. Woods at Bryce Hospital, after the Forensic Unit made its determination?
“A After he left the Forensic Unit, he was referred to one of the other four regions, which was Region 3, for further treatment.
“Q Was Mr. Woods placed on drugs for his mental condition, while he was at Bryce Hospital?
“A He was.
“Q Would you tell us what drugs were prescribed for him?
“MR. JOLLY: Objection, Your Honor, I don’t see that has anything to do with his mental condition, on June 29, 1976.
“THE COURT: Overruled.
“A At Bryce, he was placed on Sine-quan, which is a psychic stimulant, which is supposed to help people who are depressed. He was placed on Haldol, which is one of the tranquilizers we give for psychosis, such as schizophrenia.
“Q Were these drugs consistent with the diagnosis you made of paranoid schizophrenic?
“A These drugs are the drugs given for paranoid schizophrenic.”

The witness further testified on re-direct:

“Q Now Mr. Jolly was concerned about Mr. Woods fainting symptoms of paranoid schizophrenia. Would that be possible?
“A I don’t think so.
“Q Why?
“A Well the best way I can answer that is what I tried to answer just now. After 35 years of experience in this field, I don’t think anybody could fool me. I don’t think that’s bragging at all. I think anybody that has spent this much time in the field, if they haven’t learned that in 35 years, they would be retarded.”

The defendant next called Joe Gilliland. This witness was appointed attorney for defendant, but obtained permission to withdraw because he had been appointed District Judge of that county.

We quote questions and answers as follows:

“Q Did you have occasion to meet with Mr. Woods and discuss with him the crime with which he was charged?
“MR. JOLLY: I object to that. I object to any testimony concerning his discussions with the defendant, as involving the attorney-client privilege.
“THE COURT: I think that’s for the defendant to claim, Mr. Jolly, not you.
“Q All right, in your discussions with Mr. Woods, did he tell you where Wanda Randolph was, at the time you were discussing the alleged Murder?
“A Yes, he said she was upstairs in the Jail.
“Q Did he relate to you the names of people that were trying to get him?
“A He said Buddy Rogers.
* * * * * *
“Q Did these conversations occur in the chambers adjoining this room?
“A They did.
“Q And it was immediately after the indictment was returned against Mr. Woods?
“A I don’t know if it was immediately after then. I don’t remember, even if he had a preliminary hearing, but it was sometime right close to the time of the incident.
“Q Can you remember any other particulars he related to you about what was going on and so forth?
“A I think he said Buddy Rogers was downstairs with a gun and the only reason he was up there was so he could get his money, whatever money it was he was getting, and I never could figure that out.
“Q Did he relate to you that Wanda Randolph was still alive?
“A Yes.
“Q Did he tell you who he thought killed Wanda Randolph?
“A I don’t remember. The only thing I remember was her being upstairs at the Jail, she and her parents too.
“Q On the basis of these conversations, did you form an opinion as to whether he was sane or insane?
“A I felt like he was insane.”

The next witness for defendant was Dr. Joseph W. Glaister, a qualified physician and psychiatrist, who examined defendant at the request of the court.

“Q You said you had about 200 patients.
“A On the Forensic, I am just a Consultant on the Forensic Board. If I went there three times a week and I have gone more than that, I might see, especially a new patient practically every day for a week or two.
“Q But my question is, how many times did you see this particular patient?
“A Well I’m sure I saw him several times right after he was admitted, while he was a new patient there.
“Q But the only time you can document is October 6, of 1976?
“A No, except for the Board, that’s documentation.
“Q Would that be before or after October 6, that the Board met?
“A I think they were after. You know, when I do my mental status and make a diagnosis, that’s my part of it and I might do that without anything like psychological tests or social history.
* * * * * *
“Q When you first examined him, was he psychotic?
“A Yes, sir, he was having hallucinations and delusions and not being able to tell the real from the unreal in our terms, he was classified as psychotic.
“Q Would it be fair to describe him as paranoid schizophrenic?
* * * * * *
“Q Did you find any evidence of paranoia schizophrenia in him?
“A Well, he had a couple of paranoid delusions. The delusion that you are being poisoned would be classified as a paranoid delusion, that somebody was trying to get the check was, also, paranoid. My initial impression was not that of paranoid schizophrenia itself, but a chronic brain syndrome, due to cerebral arteriosclerosis.
“Q Based on the study you made on this defendant, was his mind so defective mentally, when you examined him, was the condition such that it would have destroyed his power to distinguish between right and wrong?
“A Your question was?
“Q Let me see if I can state it correctly. Was the state of his mind so that he could not tell right from wrong?
“A On the date I examined him, yes sir.
“Q Could you give the date you examined him?
“A On or about August 26. I can get the exact date from the record.
“Q All right, look at your record.
“A August 26, 1976.
“Q Doctor, do you have a professional opinion, as to how long this condition had existed, before you saw him?
“A When we speak of mental deficiency, if I was correct in that diagnosis and if I was correct in the diagnosis of chronic brain syndrome. This had its beginnings at some considerable time before the date of August 26, to have increased sufficiently for these symptoms.
“Q All right, if the evidence in this case was to show that on June 29, Mr. Woods was of the opinion that three children below the age of 14 years were having some sort of relationship with some men and there was no evidence this actually happened, could this meet your test of delusion or hallucination?
“A Yes sir.”

On cross-examination the following questions and answers, inter alia appear:

“Q My question is if you formed an opinion or can you tell the Jury your opinion, as to whether or not the defendant was afflicted with a diseased mind, on June 29 of last year to the extent he didn’t know right from wrong as concerning the act of killing a little girl?
“A It’s my opinion that he was, that this alleged act did occur, because of the delusions and because of the sexual delusions of a man with a diseased mind.
“Q I’m sorry Dr. Glaister, you may have answered the question, but I didn’t understand. Are you telling the Jury then that in your opinion that Jake Woods had such a diseased mind on June 29, 1976, that he didn’t know the difference between right and wrong, when it came to killing a little girl?
“A Yes, sir, that’s my opinion. My opinion comes from an effort to explain for myself his actions and you can call it trying some analysis or trying to analyze Julius Ceasar but I was trying to find some explanation about this alleged incident and it’s my opinion that the alleged incident must have occurred, because Mr. Woods had some delusions that this girl was sexually involved somehow and chose to correct that and therefore, I say he did not know right from wrong because he shows a horrible means of correction.
“Q You’re indicating then he wasn’t under an opinion, he was being persecuted by anybody at the time the incident happened?
“A No sir, but I’m saying he was under the influence delusions that come in the sexually (sic) sphere.”

On rebuttal, the State called Melvin Hill-man. This witness testified that he had known defendant about one year and a half before the little girl was killed. During the time, he had seen defendant and had conversations with him, and understood what he was saying. Witness was asked if on the day the child was killed, based on his prior conversations with him, if he had an opinion or judgment if defendant was sane or insane. He answered, “I can’t be definite in saying yes I know.”

This witness was a prisoner serving time in the county jail for possessing marijuana.

The next witness for the State was Darlene McGuire. She testified that she saw defendant the day it happened, on June 29, 1976.

“Q Did you have a conversation with him that morning?
“A Yes.
“Q Let me ask you this question. Did the defendant ever do anything for you? What would he do when he was at your house?
“A He helped me fix my washing machine, move the refrigerator, put down rugs, anything I wanted him to do.
“Q Do you have to show him how to do it and what all to do?
“A No, he knew how to do it himself.
“Q Now based on your contact with the defendant and your conversations with him and what you saw him do and observed him do, do you have a judgment as to whether he was sane or insane on the day the little girl was killed?
* * * * * *
“Q You may answer.
“A Sane.”

On cross-examination, the following questions and answers appear:

“Q Did he tell you on the day of this killing about little girls messing around with white boys?
“A He had told me about it, but he didn’t tell me that day.
“Q When did he tell you about it?
“A I really don’t know, but he had mentioned it to me that they were.
“Q On more than one occasion?
“A He told me about twice, I recall.
* * * * * *
“A He was sane. What he told me, I thought it was true, I’ll say it like that.
“THE COURT: He’s asking you not whether he was sane or insane in this case, but if what he told you was not true, then would that effect your opinion as to whether he was sane or insane.
“A Insane, I guess, I don’t know.
“Q Mrs. McGuire, if the evidence in this case showed that the story about the boys and girls was not true and there was not truth in it, would you then think Mr. Woods was insane on that morning?
“A I guess he was insane, I just don’t know.”

On recall by the State of Hillman the following questions and answers appear:

“Q Melvin, I’m going to ask you to listen carefully to this question that I am asking you now. Based on your observations and your conversations and your contact with the defendant up ’til the time that the little girl was killed, everything that went on up until that time, do you have a judgment as to whether or not the defendant was sane or insane at the time the little girl was killed?
* * * * * *
“A Yes, I would say he was very sane.”

On cross-examination of this witness, after recall, we quote from the record:

“Q Have you ever seen the defendant, when he acted strange to you?
“A Yes.
“Q When was that?
“Well, I can’t be specific, again, in answering the question, but I can say on certain occasions, I couldn’t say whether he had been drinking or what he was because I wasn’t that close to the defendant to know, but on some occasions, I would see him have a big stick and dress up in a woman’s wig and walk through the community. I seen that on a lot of occasions.
* * * * * *
“Q Has he ever told you anything else you wouldn’t believe?
“A Has he ever told me anything I wouldn’t believe?
“Q Yes.
“A On occasions, he told me he won a lot of money gambling, just a fantasy.
“Q A fantasy?
“A Yeah, just set down and say I won a thousand dollars or something like that.
“Q He told you things that you knew from common sense weren’t true, fantasy, I believe was your term.
“A On certain occasions.”

Two other witnesses, Ben C. Smith and Stewart Gregory Willis, were called by the State to testify on the issue of insanity. Objections to their testimony were sustained.

Defendant did not take the stand.

The Supreme Court in Christian v. State, Ala., 351 So.2d 623, has clearly stated that in an insanity defense to the commission of a crime, the jury, in determining the issue, must consider all the evidence relating thereto and may not arbitrarily reject or ignore the evidence of experts. This Court in Herbert v. State, Ala.Cr.App., 357 So.2d 683, cert. denied, Ala., 357 So.2d 690, summarized Christian, supra, as follows:

“1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
“4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.”

The court referred the defendant to Bryce Hospital, a mental institution maintained and operated by the State of Alabama, where he was committed for several weeks, there examined and observed by competent psychologists and a psychiatrist, Dr. Woddail.

It appears in the opinion that Dr. Glais-ter, an expert on insanity, examined defendant while he was at Bryce. He was a consultant. Dr. Glaister gave some impressive and elucidating testimony with respect to the different types of insanity and the symptomatic manifestation of the disease.

Neither of these witnesses was subject to partisan influence or bias, but assumed the examination of defendant as employees of the State, free of any outside influence. Dr. Woddail also gave impressive and informative testimony with respect to insanity and the symptoms manifesting such mental state.

Both of these witnesses concluded that defendant was legally insane at the time he committed the offense and that he did not know right from wrong.

The defendant also put up Mr. Gilliland, an attorney, as a witness who testified, supra, that the defendant was insane. The testimony of this witness is substantially set out in this opinion.

The State adduced testimony from two lay witnesses that defendant was sane. One of these was serving a jail sentence for selling marijuana.

The other was a housekeeper for whom defendant had done odd jobs in her house. She was impressed that defendant was sane.

We are impressed that the testimony of the State’s lay witnesses was weak and inconclusive and certainly was not supported by any inference that they had any knowledge of the different types of insanity, the causes, or the symptoms that manifest the disease. They were just random witnesses whose knowledge of legal insanity was nil. However, the testimony of these witnesses was admissible for consideration of the jury.

But we think the preponderance and weight of the evidence sustained the plea of insanity and was sufficient to overcome the statutory presumption of sanity that obtained. Title 15, Section 422, Code of Alabama 1940, (Recomp. 1958). Christian v. State, supra.

We hold that the Court erred in overruling defendant’s motion for a new trial on the ground that the verdict of the jury was contrary to the great weight of the evidence.

The judgment is reversed and the cause is remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of Section 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., concurs in the result only.


author: EMBRY, Justice.

text:
    Re Jacob Esau WOODS v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-775.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State of Alabama.
    No brief for respondent.
   EMBRY, Justice.

Although there is much language in the opinion of the Court of Criminal Appeals, 364 So.2d 1178, with which we cannot agree, we do agree the preponderance and weight of the evidence in this case was sufficient to overcome the statutory presumption of sanity attending defendant.

PETITION FOR WRIT OF CERTIORA-RI DENIED.

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


author: BOOKOUT, Judge.

text:
    Julius JOHNSON v. STATE.
    6 Div. 687.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.
    Roger C. Appell of Bryan, Wiggins, Quinn & Appell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., and Eddie Hardaway, Jr., Montgomery, for the State, appellee.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

On April 4, 1977, Ms. Nellie Jordan, an employee of the Big Apple Fruit Stand in Jefferson County, Alabama, was forced at knife point to open the cash register by a young black male. Forty dollars in cash was stolen from the register. Ms. Jordan testified that, at approximately 12:00 noon, appellant, whom she had never seen before, entered the store alone and asked for the owner, Ted Williams. Ms. Jordan, who was alone in the store, told appellant Williams was not in. Appellant made a purchase of cookies and exited the store. About 2:00 P.M. the same day, appellant returned to the store. Ms. Jordan recognized him from the noon encounter, remembering his inquiry about Mr. Williams. She also stated the store was quite small thus enabling her to view appellant closely on both visits. Appellant again made a purchase from Ms. Jordan who was still operating the store alone as she had been that morning. Appellant lingered in the store. As Ms. Jordan turned to put the money in the cash register, appellant accosted her with a knife around her neck cutting her slightly. He told her he wanted all the money, which she handed to him. He then ran out of the store and fled the scene on foot.

On April 6, 1978, two days after the robbery, both Ms. Jordan and Mr. Williams were in the store when Ms. Jordan observed appellant enter the store for a third time. As appellant made a purchase from Mr. Williams, Ms. Jordan signaled Williams that appellant was the robber. After asking Ms. Jordan “was she sure” appellant was the robber, Williams asked appellant what else he needed. Appellant responded he had to go home and get his money, at which time Williams asked appellant if he had robbed Ms. Jordan two days ago. Williams then pulled a gun from under his clothing. Appellant stated he did not rob her and suggested that Williams call the police. Because appellant offered no resistance, Williams returned the gun to his pants and called the police.

Appellant presented alibi evidence by his father and brother that he had been at home the day of the robbery watching television with his entire family. The witnesses stated they especially remembered the day because of a tornado and bad weather which kept them all home from work. Appellant testified on his own behalf as well as corroborating the alibi attested to by his father and brother.

I

Appellant argues the following testimony of appellant’s brother was hearsay and that its admission into evidence over appellant’s objection was harmful error requiring reversal. The evidence appears in the record as follows:

“Q. Did you ever go out there to this Big Apple Fruit Stand after it happened?
“A. Yes, I went there.
“Q. And you talked to Mr. Ted Williams?
“A. Yes, I talked to him. I wanted to find out exactly what had happened.
“Q. And you talked to Mrs. Jordan?
“A. Yes, I talked to her.
“Q. Did you talk to her or Mr. Ted first?
“A. I talked to both of them together.
“Q. And during those visits, isn’t it a fact that you told them that someone else was lying about where your brother was that day?
“A. I didn’t understand your question.
“Q. On those visits that you — was it more than once or twice or three times you saw Miss Jordan and Mr. Ted?
“A. I think it was twice.
“Q. And did you see them both together the second time?
“A. The second time I just saw — yeah, they were both together, but I had my aunt with me then.
“Q. Do you remember a conversation they told you that someone else told them that he was playing baseball?
“A. Yes, I remember that.
“Q. And that it was — they told you this other person that—
“MR. APPELL: I object to all these people.
“THE COURT: Overruled. This is a conversation between him and two witnesses.
“Q. And did Miss Jordan or Mr. Ted tell you that he couldn’t have been playing baseball with this other person because it was raining?
“A. Yes. But can I explain?
“Q. Wait a minute. And you told them that they were lying, they must have been lying?
“A. No, I did not tell them that.
“Q. Did they also tell you that person was going to get the whole baseball team to swear that he was playing baseball that day?
“A. That’s what they told me, but they could have been lying.”

Appellant’s objection was; “I object to all these people.” Hearsay was not mentioned as a ground for objection at trial, therefore, all grounds not specified were waived, and the trial court will not be put in error on grounds not assigned. Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977); Neugent v. State, Ala.Cr.App., 340 So.2d 55, cert. denied, Ala., 340 So.2d 60 (1976). Review of objections to improper admission of evidence is not available unless appropriate grounds are stated. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). Further, the substance of the testimony appears to have come into evidence without objection during redirect examination of the witness by appellant’s counsel.

“A. So the second time I went my aunt suggested me to go back up there and try to find out a little more about it. So that was just the second time I had went up there. The only two times I had went. You know, they told me something about the guy he said my brother plays baseball with was trying to bribe them or something like that, but I didn’t know whether that was true or not.
“Q. But you didn’t try to bribe him, did you?
“A. No, I did not.
“Q. Did you tell them that your brother had been home that day?
“A. Yes I told them.”

The objectionable material having been elicited and admitted by appellant’s own counsel without objection, appellant cannot now be heard to complain of error in this matter. Pitts v. State, 291 Ala. 136, 279 So.2d 119 (1973).

II

Appellant asserts the admission of the following hearsay testimony was reversible error:

“Q. Mrs. Jordan, you testified yesterday afternoon that Murphy Johnson, a person identified himself as the Defendant’s brother came out to see you after the robbery?
“A. Right.
“Q. And you had a conversation?
“A. We did.
“Q. And what did he say to you about dropping the charges?
“MR. APPELL: I object to that as hearsay testimony.
“THE COURT: Overruled. He’s testified — Mr. Johnson has testified to that transaction.
“A. He asked me if I would drop the charges against his brother. I told him I couldn’t do that. He said his mother sick and it would be a hardship on them, something to the effect, you know, he went on and he thought I should drop it since we were all brothers and sisters, or however he phrased it. I told him I couldn’t do that, because I had a mother and children and it would have been a terrible thing had I been killed in this incident and I just couldn’t drop it. I had gone as far as going through the court proceedings and I just wouldn’t drop it.”

It is evident that the prosecutor was merely attempting to rebut the evidence of the hearsay conversation between Johnson and Ms. Jordan introduced by appellant’s counsel by eliciting the remainder of that conversation from Ms. Jordan. Cannon v. State, 53 Ala.App. 509, 301 So.2d 272 (1974); Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973). Johnson denied any attempt to bribe Ms. Jordan, and the prosecutor was invoking the doctrine of curative admissibility to dispel any impression on the jury which indicated Johnson had not in fact attempted to cause Ms. Jordan to drop the charges. Madison v. State, 25 Ala.App. 50, 140 So. 623 (1972); Gamble, McElroy’s Alabama Evidence, § 14.01. We find no error in the admission of the testimony for this purpose.

The grounds relied upon by appellant for reversal have been considered in light of the record, the briefs, and the arguments, and we find no prejudicial error to the substantial rights of appellant which would mandate a retrial of this case.

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Julius JOHNSON. In re Julius JOHNSON v. STATE of Alabama.
    78-81.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Roger C. Appell, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State, respondent.
   BLOODWORTH, Justice.

Writ denied. In denying this writ, we do not necessarily agree with the reasons given for affirming this cause appearing in the Court of Criminal Appeals’ opinion, 364 So.2d 1187. We deny the writ because the question to which petitioner objected in the trial court was never answered by the witness. Thus, where there is no answer to a question, any error in asking the same is harmless. Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972).

WRIT DENIED.

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


text:
    M. Wayne WHEELER, as guardian ad litem of the Unborn Descendants of Robert I. Ingalls, Sr. v. FIRST ALABAMA BANK OF BIRMINGHAM et al. Samuel Marks BOYKIN, III, By and Through his duly appointed guardians ad litem, and Robert I. M. Boykin v. FIRST ALABAMA BANK OF BIRMINGHAM et al. Elesabeth Ridgely SHOOK and Ellen Gregg Shook By and Through their duly appointed guardian ad litem, Richard S. Riley v. FIRST ALABAMA BANK OF BIRMINGHAM et al.
    77-288, 77-289 and 77-290.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      J. H. Crow, III, Birmingham, for appellant, M. Wayne Wheeler as guardian ad litem (etc.).
    Alex W. Newton and James L. North, Birmingham, as guardians ad litem for Samuel Marks Boykin, III and for Robert I. M. Boykin, appellants.
    Richard S. Riley, Birmingham, as guardian ad litem of Elesabeth Ridgely Shook and Ellen Gregg Shook, appellants.
    H. L. Ferguson, Jr. and Samuel H. Frazier, Birmingham, for Richard S. Riley, as guardian ad litem of Elesabeth Ridgely Shook and Ellen Gregg Shook, appellants.
    Reid B. Barnes and John E. Grenier, Birmingham, for appellee, First Alabama Bank of Birmingham as Trustee of Ingalls Trusts B, C, D, E and F.

      Wm. Bew White, Jr. and Hobart A. McWhorter, Jr., Birmingham, for appellee, Barbara I. Shook.
    J. Michael Rediker, Birmingham, for ap-pellee, Elesabeth Ingalls Gillet.
    A. Key Foster, Jr., Birmingham, for ap-pellee, The Ingalls Iron Works Co.
   BLOODWORTH, Justice.

This appeal is from a judgment granting motions for summary judgment in favor of the bank and two individuals, Barbara In-galls Shook and Elesabeth Ingalls Gillet, as cotrustees, on cross-claims and counterclaims filed by the appellants, who claim the right to share in the distribution of income from six trusts as descendants (grandchildren) of Robert I. Ingalls, Jr.

The trusts, designated Ingalls Trusts B, C, D, E, F, and G, were created by members of the Ingalls family using primarily Ingalls Iron Works Company stock as trust corpus. Trusts B, E, and F were created by Robert I. Ingalls, Sr., Trusts C and G by his wife Ellen G. Ingalls, and Trust D by his only child, Robert I. Ingalls, Jr. Trust G was purportedly terminated in 1973. First Alabama Bank of Birmingham is trustee of Trust D and co-trustee of the other four trusts. Elesabeth Gillet is co-trustee of Trusts B, C, E, and F, and Barbara Shook is co-trustee of Trusts B, C, and F. These trusts have been the subject of much litigation and have been before this Court on at least two prior occasions. Ex parte Ingalls, 266 Ala. 45, 93 So.2d 753 (1957); Ingalls v. Ingalls, 256 Ala. 321, 54 So.2d 296 (1951).

In this most recent action, First Alabama Bank of Birmingham filed a petition for partial settlement as trustee or co-trustee of the trusts (except Trust G). Parties to the proceeding included Barbara Ingalls Shook and Elesabeth Ingalls Gillet (only children of Robert I. Ingalls, Jr.), Robert I. M. Boykin and Samuel M. Boykin, III (only children of Elesabeth Gillet), Elesabeth R. Shook and Ellen G. Shook (only children of Barbara Shook), and M. Wayne Wheeler (guardian ad litem for unborn descendants of Robert I. Ingalls, Sr.). The Bank also filed a “Special Proceeding” seeking approval of a written agreement between the Bank, Ingalls Iron Works Company, and others.

The Boykins filed counterclaims against the Bank and cross-claims against their mother, Elesabeth Gillet, and aunt, Barbara Shook. The Shooks filed similar cross-claims and counterclaims. These claimants, who are the only grandchildren of Robert I. Ingalls, Jr., seek in the aggregate approximately $3 million, alleging that the Bank, Mrs. Gillet, and Mrs. Shook, as co-trustees, wrongfully distributed the entire income of the six trusts to Mrs. Gillet and Mrs. Shook. The grandchildren assert that they have a present right to the income and that each grandchild is entitled to a one-third share of the amount which has already been distributed to his or her mother, in effect, a per capita distribution.

The co-trustees filed motions to dismiss or motions for summary judgment on the cross-claims and counterclaims. The trial judge treated the motions to dismiss as motions for summary judgment, considering matters outside the pleadings, e. g., two prior cases involving the same trusts, the trust instruments themselves, and a supporting affidavit. The grandchildren filed no affidavits in opposition to summary judgment. The trial court granted the motions for summary judgment and, expressly determining under Rule 54(b) that there was no just reason for delay, entered final judgment against the grandchildren. They, along with the guardian ad litem for unborn descendants appeal, with the three co-trustees and Ingalls Iron Works Company as appellees.

The grandchildren challenge the propriety of granting summary judgment in this case. They contend that the question of the settlors’ intent as expressed in the trust provisions is a disputed question of fact.

Summary judgment is, of course, not properly granted unless there are no genuine issues of material fact and the application of law to the undisputed facts is correct. Gurley v. Bank of Huntsville, 349 So.2d 43 (Ala.1977).

The terms of the trusts as written are not disputed. The identity of the individual parties as descendants of Robert Ingalls, Jr., is uncontradicted. What should prevent the grant of summary judgment, the grandchildren contend, is that the trusts are ambiguous, presenting a disputed question of fact as to the settlors’ intent. The grandchildren allege that language in the preambles and in certain provisions of the trusts reveals the intention to allow all living descendants of Robert Ingalls, Jr., to share in the distribution of trust income, as opposed to the trial court’s finding that the trust provisions mandate a per stirpes distribution with Mrs. Shook and Mrs. Gillet as presently the sole beneficiaries entitled to income.

The construction of a written document is a function of the court. Smith v. Blinn, 221 Ala. 24, 127 So. 155 (1929). If the document is unambiguous, its construction and legal effect is a question of law which may be decided, under appropriate circumstances, by summary judgment. See Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (Civ.App.1975). Moreover, only when a trust term is ambiguous may there be resort to extrinsic evidence. Whitfield v. Matthews, 334 So.2d 876 (Ala.1976).

The pertinent portions of the trusts alleged to be ambiguous are as follows:

Trust B
“That for and in consideration of the sum of One Dollar and other good and valuable considerations by the Grantor received, and for the sole purpose of providing his granddaughters, ELESABETH RIDGELY IN-GALLS and BARBARA GREGG IN-GALLS, and any other grandchildren or descendants who may be hereafter born, with an income, so that they may be assured of some degree of financial independence, the Grantor has transferred and assigned, and by these presents does transfer and assign unto the Trustees the property described in ‘Exhibit A’ hereto attached and made a part hereof by reference; as well as any other items of property which hereafter may be granted, conveyed, assigned, transferred and delivered unto said Trustees under the terms hereof;
“TO HAVE AND TO HOLD the same unto the said Trustees, their successors and assigns, but in trust nevertheless, for the uses and purposes, upon the terms and conditions and with the powers and duties hereinafter stated.”
* * * * * *
“(b) The Trustees shall hold said trust estate in trust for the use and benefit of such of the descendants of Grantor’s son, ROBERT I. INGALLS, JR., including Grantor’s granddaughters, Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls, as may from time to time during the duration of the trust be living, in equal shares per stirpes. Until each such descendant shall attain the age of twenty-one years, the Trustees shall use and apply for his or her support, education, expenses of travel, and comfort, such part of his or her share of the net income from said estate and of the principal thereof as the Trustees deem necessary or desirable for said purposes. . From and after the time when any such beneficiary shall attain the age of twenty-one years, the Trustees shall transfer and pay over to such beneficiary all of his proportionate share of the entire net income from said trust estate and also such additional sum or sums out of the principal of said trust estate as the Trustees may in the absolute exercise of their discretion deem necessary or desirable from time to time for his or her proper support, education, expenses of travel, and comfort.
“(c) ... In any event that any principal distribution is made to any beneficiary under the foregoing provisions of the within Section (c) hereof, the Trustees shall at the same timé set apart for the benefit of all other beneficiaries then sharing in the benefits of said trust estate, in equal shares, per stirpes, other property constituting a part of the principal of said trust estate equivalent in value for each beneficiary per stirpes to the value of the property so distributed, and the Trustees shall thereafter hold such other property so set apart for each such other beneficiary in trust for the benefit of such other beneficiary as provided in Section (d) hereof. It is recognized that because of the different ages of beneficiaries, of the probable fluctuations in the values of property, and of the possible birth of other beneficiaries after distributions have been made hereunder, inequalities among beneficiaries hereunder may result, and there is consequently vested in the trustees hereunder full power and authority in the absolute exercise of their discretion to equalize or adjust as between beneficiaries differences as to income or as to principal growing out of prior distributions or growing out of changes in valuation of properties constituting said trust estate or growing out of the later birth of beneficiaries, so as to provide substantially equal benefits throughout the duration of the trust to all beneficiaries and their descendants per stirpes.”
“(d) . . . Upon the termination of the trust, the Trustees shall transfer and pay over the property then constituting said trust estate to such of the descendants of grantor’s son, Robert I. Ingalls, Jr., as may then be living in equal shares per stirpes . . .."

Trusts C and D

Same as Trust B, with some minor differences not material to the issues.

Trust E

“That having gone through the period since the first world war and having witnessed many accumulations of years of effort swept away, and desiring to see his descendants safely and adequately provided for against the possibility of such a catastrophe, and having recently entered upon the new and hazardous business of shipbuilding, the future of which is not certain and the risks of which are rapidly increasing the dangers to the estate he has already built, and desiring to establish now a backlog fund for the protection of his descendants against the hazards of the time and their own youth and inexperience, the Grantor has transferred and assigned, and by these presents does transfer and assign, unto the Trustees the property described in EXHIBIT ‘A’ hereto attached and made a part hereof by reference, as well as any other items of property which hereafter may be granted, conveyed, assigned, transferred and delivered unto said Trustees under the terms hereof;
“TO HAVE AND TO HOLD the same unto the said ELLEN G. INGALLS, ROBERT I. INGALLS, JR. and THE FIRST NATIONAL BANK OF BIRMINGHAM (and to such successor corporation having trust powers as shall succeed to the business of said bank by purchase, merger, consolidation, or change of charter or name), as Trustees, in trust nevertheless for the uses and purposes, upon the terms and conditions and with the powers and duties hereinafter stated.”
* * * * * *
“(b) The Trustees shall hold said trust estate in trust for the use and benefit of ELISABETH RIDGELY INGALLS and BARBARA GREGG INGALLS, both children of the Grantor’s son, Robert I. Ingalls, Jr., and of such of any other descendants of said Robert I. Ingalls, Jr. as may, from time to time during the continuance of the trust be living. During the continuance of the trust all income from said trust shall be added to and become principal. From the principal so augmented the Trustees shall from time to time pay to or for the use and benefit of each of said children and descendants of said Robert I. Ingalls, Jr., such sum or sums as the Trustees may from time to time deem necessary for her or his proper support, education and comfort. . . .”
“It is intended that the Trustees shall so far as is practicable exercise their discretion in making distributions hereunder so as to provide approximately equal treatment per stirpes for each child of the Grantor’s son, Robert I. Ingalls, Jr., and for the descendants of any deceased child of said son. It is recognized, however, that because of the different ages of descendants, of the probable fluctuations in the values of property, of the possible birth of other beneficiaries after distributions have been begun hereunder, and of the varying needs, sources of other income, and conduct, of the various beneficiaries hereunder, differences as to distributions to the several beneficiaries hereof may result. The Trustees are not required to equalize such differences in distributions but there is vested in the Trustees hereunder full power and authority in the absolute exercise of their discretion to equalize or adjust as between beneficiaries differences which may grow out of distributions made hereunder, so as to provide to the extent deemed practicable, just and consistent with the purposes of this trust, substantially equal benefits throughout the 'duration of the trust to all descendants of the Grantor’s said son Robert I. Ingalls, Jr., per stirpes.”
* * * * * *
“(d) . . . Upon the termination of the trust, the Trustees shall transfer and pay over the property then constituting said trust estate to such of the descendants of the Grantor’s said son, Robert I. Ingalls, Jr., as may then be living, in equal shares per stirpes . . . .”

Trust F

“WHEREAS, having gone through the period since the first World War and having witnessed many accumulations of years of effort swept away, and desiring to see his descendants safely and adequately provided for against the possibility of such a catastrophe, and desiring to establish a backlog for the protection of his descendants against the hazards of the time and their own youth and inexperience, the Grantor has long followed a policy of making liberal gifts in trust to his descendants heretofore or hereafter born;
“WHEREAS, commencing in the year 1925, the Grantor has been gradually relinquishing control of the business of The In-galls Iron Works Company and its subsidiaries by making gifts of his stock interests therein to his son, Robert I. Ingalls, Jr., and to the children and descendants of said son;
“WHEREAS, the said policy of the Grantor has been further motivated by (a) a desire and determination to provide such descendants with an income, so that they may be assured of some degree of financial independence, irrespective of any adverse effect which changing conditions may hereafter have on the Grantor’s remaining and independent estate, (b) the excessive rates of income taxes imposed by the Federal Government and the State of Alabama and (c) the ultimate desire of the Grantor to retire from business; and
“WHEREAS, the Grantor is desirous of further effectuating and carrying out said policy by providing such children and descendants of said Robert I. Ingalls, Jr., heretofore or hereafter born, with further income so that they may be assured of an added degree of financial independence, irrespective of any adverse effect which changing conditions may hereafter have on the Grantor’s remaining and independent estate, by the execution and delivery of these presents.
“NOW THEREFORE, that for and in consideration of the premises and the sum of One Dollar ($1.00) and other good and valuable considerations by the Grantor received, and for the purposes herein provided, the Grantor has transferred and assigned, and by these presents does transfer and assign, unto the Trustees the property described in Exhibit ‘A’ hereto attached and made a part hereof by reference, as well as any other items of property which may hereafter be granted, conveyed, assigned, transferred and delivered unto said Trustees under the terms hereof;
“TO HAVE AND TO HOLD the same unto the said ELLEN G. INGALLS, ROBERT I. INGALLS, JR. and M. F. PIXTON, as trustees, in trust, nevertheless, for the uses and purposes, upon the terms and conditions and with the powers and duties hereinafter stated:”
* * * * * *
“(b) The Trustees shall hold said trust estate in trust for the use and benefit of ELESABETH RIDGELY INGALLS AND BARBARA GREGG INGALLS, both children of the Grantor’s son, Robert I. Ingalls, Jr., and of such of any other descendants of said Robert I. Ingalls, Jr., as may from time to time during the continuance of the trust be living. So long as any such descendant shall be under the age of twenty-one years, the Trustees shall use and apply for his or her support, comfort and education his or her pro rata share of the net income from said estate.”
* * * * * *

The remaining pertinent provisions are the same as those in Trust E.

Trust G

“WHEREAS, the Grantor has long followed a policy of making liberal gifts in trust to the children and descendants of Grantor’s son, Robert I. Ingalls, Jr., heretofore or hereafter born; and
“WHEREAS, the said policy has been motivated by a desire and determination to provide such children and descendants with an income so that they may be assured of some degree of financial independence, irrespective of any adverse effect which changing conditions may. hereafter have on the Grantor’s remaining and independent estate and further by reason of the excessive rates of income taxes imposed by the Federal Government and the State of Alabama; and
“WHEREAS, in carrying out said policy the Grantor has heretofore made substantial gifts for the benefit of such children and descendants, and the Grantor is desirous of further effectuating said policy by providing such children and descendants with further income so that they may be assured of an added degree of financial independence, irrespective of any adverse effect which changing conditions may hereafter have on the Grantor’s remaining and independent estate, by the execution and delivery of these presents.
“NOW THEREFORE, that for and in consideration of the premises and of the sum of One Dollar and other good and valuable considerations by the Grantor received, and for the purposes herein provided, the Grantor has transferred and assigned, and by these presents does transfer and assign, unto the Trustees, the property described in ‘Exhibit A’ hereto attached and made a part hereof by reference, as well as any other items of property which hereafter may be granted, conveyed, assigned, transferred and delivered unto said Trustees under the terms hereof;
“TO HAVE AND TO HOLD the same unto the said ROBERT I. INGALLS, ROBERT I. INGALLS, JR. and M. F. PIXTON, as trustees, in trust, nevertheless, for the uses and purposes, upon the terms and conditions and with the powers and duties hereinafter stated . . . .”

The remaining pertinent provisions are the same as those in Trust E.

We do not find the terms of the trusts to be ambiguous and affirm the grant of summary judgment.

There are no disputed questions of fact, only a disagreement over the interpretation of the terms of the trusts. The grandchildren argue that the use of the term “per stirpes” is inconsistent with the use of the terms “descendants” and “in equal shares,” which indicate a per capita distribution.

The term “per stirpes” is a technical term which means by roots or stocks or by representation. Black’s Law Dictionary 1294 (4th ed. 1951). While it may be more familiar in the law of descent and distribution, its use is not restricted to that area of the law, nor is its use restricted to one-time or lump sum distributions. It is presumed that such legal terms are used in their legal sense unless other language indicates otherwise. Davis v. Davis, 289 Ala. 313, 267 So.2d 158 (1972); DeBardelaben v. Dickson, 166 Ala. 59, 51 So. 986 (1910).

I.

The grandchildren attempt to show that other language in the trusts indicates that a per capita distribution was intended and that this other language is controlling.

First, the word “descendants” is said to mandate a per capita distribution to all living descendants of Robert Ingalls, Jr. This is not persuasive, since the use of the word “descendants” alone implies a per stirpes distribution. Shackelford v. Brown, 361 So.2d 552 (Ala.1978). In this case the settlors have gone further, as did the testator in Shackelford, and emphasized their intention by adding the term “per stirpes.”

Second, the phrase “in equal shares” is said to show an intent to provide for a per capita distribution. This is not necessarily so, since in a per stirpes distribution the property is divided into equal parts according to the number of roots or stocks. Each root or stock takes an equal share. Shackelford v. Brown, supra.

Third, the grandchildren contend that the preambles are more important than the specific trust provisions in determining the intent of the settlors. Their position is that the preambles contain specific expressions of the settlors’ intent to protect all descendants. We do not believe that the general statements of desire to benefit descendants contained in the preambles are controlling. The settlor’s intent is to be gathered from the entire instrument. Ingalls v. Ingalls, 256 Ala. 321, 54 So.2d 296 (1951). There is nothing in the general language of the preambles which conflicts with the specific statements directing a per stirpes distribution contained in various provisions of the trusts. The preamble read with the specific provisions forms a coherent whole. The grandchildren are descendants of Robert Ingalls, Jr., and are beneficiaries of the trusts. They will benefit from the trusts indirectly through distribution of income to their parents, or directly through distribution to themselves in the event their parents die before they do. Thus, we see no conflict between a per stirpes distribution and the language in the preambles.

The other arguments advanced by the grandchildren are not convincing. They argue that a per stirpes distribution in effect gives Mrs. Shook and Mrs. Gillet a life estate, and if this were the settlors’ intention, they could have used other language. If a life estate had been intended, the set-tlors could have provided so in clear language. But they did not so provide, and there is no indication that a life estate was contemplated. Mrs. Shook and Mrs. Gillet are entitled to receive, and have received, distributions of principal as well as income, so that their interests constitute more than mere life interests.

It is argued that the only practical solution is to divide the amount to be distributed into two stocks, and then allow all of the descendants in each stock, regardless of degree of relationship, to share equally. While this would be a valid method of distribution if so expressed in the trusts, this is not a per stirpes distribution as that term is customarily used. We find nothing to indicate that this method was intended by the settlors.

II.

Two other points are raised by the guardian ad litem for unborn descendants— whether summary judgment was inappropriate because there was a question regarding the co-trustees’ (1) breach of fiduciary duty in voting Ingalls Iron Works Company stock, or (2) abuse of discretion in disbursing income.

The question of the co-trustees' breach of fiduciary duty in the voting of Ingalls Iron Works Company stock is not before us on this appeal, since it was not raised in any of the cross-claims or counterclaims which are the subject of this appeal. Furthermore, the grandchildren make no claim of abuse of discretion. They did claim a breach of fiduciary duty, but this dealt solely with the rights of the grandchildren to receive income, not with the trustees’ discretion.

III.

Affirmance finds further support in the doctrines of res judicata and collateral es-toppel.

Res judicata and collateral estoppel (estoppel by judgment) are two separate rules or sets of rules for determining the conclusiveness of judgments. See Webster v. Gunter, 336 So.2d 170, 172 (Ala.1976) (Almon, J., concurring specially).

The elements of res judicata are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits. Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975). If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976).

Collateral estoppel operates where the subsequent suit between the same parties is not on the same cause of action. Requirements for collateral estop-pel to operate are (1) issue identical to one involved in previous suit; (2) issue actually litigated in prior action; and (3) resolution of the issue was necessary to the prior judgment. Stevenson v. International Paper Co., supra. If these elements are present, the prior judgment is conclusive as to those issues actually determined in the prior suit. Gulf American Fire & Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968).

The co-trustees contend that both res ju-dicata and collateral estoppel bar the appellants from claiming the right to income or principal while their mothers are still living. In 1962, in Cause No. 123-306, Circuit Court of Jefferson County, Alabama, Mrs. Gillet and Mrs. Shook sought distribution of accumulated income and principal of Trusts B, C, and D. According to the terms of the trusts, such distribution was available to adult beneficiaries, who were entitled upon first distribution to no more than 25 percent of their share of the corpus. By cross-bill, Hamilton National Bank, co-trustee of Trusts B, C, and D, sought approval of its final accounting and resignation as trustee.

This action was consolidated with Cause No. 122-097, in which First National Bank of Birmingham, co-trustee of Trust E, sought approval of its final accounting and resignation as trustee.

The appellants were living in 1962 and were represented by guardians and guardians ad litem, as were the unborn descendants of Robert Ingalls, Sr.

The court’s judgment in that consolidated action held that Mrs. Gillet and Mrs. Shook were the “sole primary adult beneficiaries ” of Trusts B, C, and D, and ordered distribution of all of the trust assets other than Ingalls Iron Works Company stock, which was less than the 25 percent limit. In so doing, the court stated that Mrs. Gillet and Mrs. Shook were “entitled to a distribution of accumulated income and/or principal not to exceed twenty-five per cent of the assets of each trust.” This implies that ultimately their share will constitute the entire corpus of each trust, since no provision was made for any other beneficiaries. The court also approved the accountings of the resigning trustees, which showed that all distributions to beneficiaries had been made to Mrs. Gil-let and Mrs. Shook.

The guardian ad litem for the minors and the unborn descendants made no objections to the ordered distribution or to the accountings.

There is no question that the first two elements of res judicata are satisfied. The third, identity of the parties, is also met. This condition does not require complete identity, but only that the party against whom res judicata is asserted was a party before. Geer Brothers, Inc. v. Crump, 349 So.2d 577 (Ala.1977). Moreover, a minor fully represented in court, is bound by a valid judgment in the same manner as any other party. See Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566 (1925).

The presence of the fourth element of res judicata, that each suit is based on the same cause of action, depends upon whether substantially the same evidence supports both actions. Geer Brothers, Inc. v. Crump, supra; Gulf American Fire & Casualty Co. v. Johnson, supra. Whether this condition is satisfied or not is not controlling, however, because we find that the appellants are barred by collateral estoppel, which operates without regard to the identity of the causes of action.

In order to reach the conclusion in the 1962 action that Mrs. Gillet and Mrs. Shook were entitled to 25 percent of the trust corpus and accumulated income without provision for other possible beneficiaries, the court necessarily concluded that no other descendants had a present right to distribution. This conclusion is strengthened by the approval of the resigning trustees’ accountings, disclosing that the only beneficiaries receiving income were Mrs. Gillet and Mrs. Shook. Such a conclusion is obviously implied from the holding of the court and is necessary to support the judgment rendered. See Grund v. Jefferson County, 291 Ala. 29, 277 So.2d 334 (1973).

Appellants assert that the issues of res judicata and collateral estoppel may not be raised on this appeal. These defenses were set forth in the motions for summary judgment, and appellants argue that they were impliedly rejected by the trial court, since its ruling made no mention of these defenses and dealt, instead, with the distribution issue on the merits. Since the co-trustees made no cross-appeal, appellants urge that they may not now raise these issues.

A finding against the co-trustees on the defenses of res judicata and collateral es-toppel is not to be implied from the trial court’s judgment, since such a finding is not necessary to support the judgment. To the contrary, a finding in favor of the co-trustees on res judicata or collateral estoppel is compatible with the judgment holding that the rights to distribution are the same as those found in the 1962 actions.

We find that the trial court was correct in holding that the Ingalls Trusts B through G provide for a per stirpes distribution of income and principal and that Mrs. Shook and Mrs. Gillet, only children of Robert Ingalls, Jr., are presently the sole primary beneficiaries of the Ingalls Trusts.

For the foregoing reasons, this cause is due to be affirmed.

AFFIRMED.

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

      . The guardians ad litem in that case are not the same guardians ad litem appointed in the present case.


author: Jones, Justice. MADDOX, Justice

text:
    Harold L. BEVILL et al. v. Brinton A. OWEN.
    77-467.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Thomas H. Brown of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellant, Harold L. Bevill.
    Karl C. Harrison of Harrison, Conwill & Harrison, Columbiana, and Bert P. Taylor of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellee.
   Jones, Justice.

This case is appealed from a voluntary dismissal pursuant to ARCP 41(a). On January 8, 1978, Brinton A. Owen, Appellee, filed a complaint in the Circuit Court of Shelby County against Harold L. Bevill, Appellant. Owen and Bevill were former accounting partners, doing business under the name “Owen, Bevill and Company.”

In his complaint, Owen sought dissolution of the partnership, and an accounting. Additionally, Owen alleged that Bevill continued to enter the partnership premises, thereby causing Owen irreparable harm. Owen sought injunctive relief to restrain Bevill from entering the premises, “alienating or damaging” the partnership assets or “alienating or damaging” Owen’s goodwill. Simultaneously with the serving of the complaint, Owen sought discovery of Bevill by way of interrogatories and a Request to Produce Documents. Discovery was responded to within the requisite time period.

On February 3, Bevill served Owen with an extensive set of interrogatories and a Request for Production of Documents. On February 7, Bevill served Owen with a Motion to Transfer the case to Jefferson County, the County of Bevill’s residence. The motion was supported by Bevill’s affidavit stating that he was and had been a Jefferson County resident continuously since 1971, and that the allegations supporting Owen’s claim for injunctive relief were absolutely false and frivolous, and a sham attempt to establish venue in Shelby County. The hearing on the Motion to Transfer was continued at Owen’s request.

On February 23, Bevill filed a Motion for Summary Judgment on the count seeking injunctive relief. This motion was based on Bevill’s affidavit. The motion adopted the earlier Motion to Transfer and supporting affidavit.

Thereafter, on March 9, 1978, the following occurred:

1) Owen filed a Motion to Dismiss the case without prejudice.

2) This motion was served on Bevill’s counsel by being placed in the mail on March 9. (The motion was received by Bevill’s counsel on March 10.)

3) On the same day as the filing of the motion, the trial Court entered its order dismissing the case. There was no prior notice to Bevill and there was no hearing on the motion. Additionally, there were no conditions of the dismissal nor provisions for the payment of costs.

4) At the same time, the trial Court noted on Bevill’s Motion for Summary Judgment that it was “mooted” by Owen’s dismissal of the suit.

Thereafter, on April 14, Bevill filed his Notice of Appeal. Bevill asserts that the trial Court either failed to exercise its discretion or abused its discretion in granting Owen’s Motion to Dismiss. Bevill argues: Although he had complied with Owen’s discovery; had sought discovery himself; had made a Motion for Summary Judgment on the injunction count; and had sought a transfer on the remaining count, the trial Court granted Owen’s Motion to Dismiss without 1) the receipt of prior notice by Bevill; 2) the opportunity for an adversary hearing, and 3) setting forth any terms or conditions for the dismissal.

ARCP 41(a)(1) provides two methods by which a case may be voluntarily dismissed without an order of court. The first method is voluntary dismissal by the plaintiff. This requires the filing of a “notice of dismissal” by the plaintiff, before service by the adverse party of an Answer or Motion for Summary Judgment, whichever occurs first. Here, Bevill had filed a Motion for Summary Judgment on the count seeking injunctive relief. The second method of dismissal without order of court is by stipulation. It is plain that neither method of dismissal without order of court is applicable in this case. Therefore, we must look to the provisions of ARCP 41(a)(2) to determine the validity of the trial Court’s order dismissing this lawsuit.

Rule 41(a)(2) provides for voluntary dismissal, by order of court, as follows:

“Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action may be dismissed but the counterclaim shall remain pending for adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.”

Dismissal on motion under Rule 41(a)(2) is within the sound discretion of the court. Garner v. Missouri-Pacific Lines, 409 F.2d 6 (6th Cir. 1969); Diamond v. United States, 267 F.2d 23 (5th Cir. 1959), cert. den. 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75; United States v. Lyman, 125 F.2d 67 (1st Cir. 1942). A defendant is not entitled to reversal unless he can show that the trial court failed to exercise or abused its discretion, or exercised an unpermitted discretion. American Cyanamid Co. v. McGhee, 317 F.2d 295 (5th Cir. 1963); Homeowners Loan Corp. v. Huffman, 134 F.2d 314 (8th Cir. 1943). The discretion given the court by Rule 41(a)(2) is a judicial, rather than an arbitrary, discretion. Alamance Industries, Inc. v. Filenis, 291 F.2d 142 (1st Cir. 1961), cert. den. 368 U.S. 831, 82 S.Ct. 53, 7 L.Ed.2d 33; International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1943).

As we indicate below, the case law generally requires that notice should be given under Rule 41(a)(2). The Rule itself, however, does not explicitly require notice or a hearing; therefore, the dismissal was proper on its face.

It is a fundamental rule of appellate procedure that, regardless of merits of appellant’s contentions, appellate courts will not review questions not decided by the trial court. McWhorter v. Clark, 342 So.2d 903 (Ala.1977). The Supreme Court cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to nor decided by it. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958). This Rule especially applies in a situation where, as here, an abuse of discretion is alleged. In the present case, Bevill has failed to properly preserve any error the trial Court may have committed in the discretionary function required under ARCP 41(a)(2). Bevill appeals from the dismissal order itself, without ever having made a motion to alter, vacate, set aside or reconsider the trial Court’s order.

In J. Moore, 5 Moore’s Federal Practice, at ¶ 41.05[3], it is stated:

“If the defendant has resisted plaintiff’s motion to dismiss without prejudice, the defendant can, of course, appeal from the dismissal . . . .”

This statement implies that, at some point in the proceeding, the defendant must present to the trial court its objections in order that the trial court can consider and rule upon these matters. Admittedly, Be-vill was precluded from registering any objection initially because of the lack of notice and opportunity to be heard. Nonetheless, under these circumstances, the action of the trial judge is not re viewable absent a post-trial motion, affording the trial judge an opportunity to rule on the movants’ objection to the order of dismissal.

Bevill cites the case of Diamond v. United States, supra. There, it was held that, because terms and conditions can be imposed under a Rule 41(a)(2) dismissal, and, because the Court’s discretion must be exercised in granting or denying the motion, notice of the motion must be served on the defendant and a hearing should be held to determine whether to grant the dismissal without prejudice and, if so, upon what terms and conditions.

In Diamond, however, the aggrieved defendant, immediately after dismissal, filed a motion with the trial Court to modify the order of dismissal so that it would be with prejudice. It was only after giving the trial Court ample opportunity to consider any error in abusing its discretion that the defendant appealed from the order of dismissal.

In LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976), another decision cited by Bevill, the district court, upon a voluntary dismissal without prejudice, imposed the condition that plaintiff, before being allowed to relitigate, would be required to prove his case preliminarily to the district court. The plaintiff appealed and the Court of Appeals remanded the case for reconsideration because they were unable to ascertain from the record whether the district court properly exercised its discretion. In LeCompte, it was stated:

“Defendants argue that plaintiff cannot appeal the terms attached by the district court to a dismissal which he initiated and in which he acquiesced.' Although it is certainly true that plaintiff prompted the issuance of the order of dismissal by the district court, under the circumstances of this case, he cannot be deemed to have acquiesced in or accepted the terms of the order actually entered. Prior to the entry of the order, plaintiff filed with the court a document entitled ‘Plaintiff’s Reply to Defendants’ Objection to Plaintiff’s Order of Dismissal Without Prejudice,’ in which he objected to the inclusion in the order of the conditions suggested by the defendants. When the district court issued its order of dismissal, which included the contested conditions, plaintiff vigorously renewed his objections to the inclusion of the conditions as a part of his voluntary dismissal by a ‘Motion to Amend and/or Reform Order of Dismissal Without Prejudice.’ When that effort failed, he brought this appeal. The fact that plaintiff has never, in so many words, sought to have the dismissal set aside is not dispositive. The record clearly indicates he has consistently expressed his desire to be relieved from the burdens of the order and has never actually acquiesced in or accepted the terms of the dismissal.”

As shown by both Diamond and LeCompte, somewhere in the proceedings, the complaining party must point out to the trial court that they are dissatisfied with its order; otherwise, there is no reviewable error presented for this Court’s consideration.

The Committee Comments to ARCP 41 provide:

“A dismissal, whether voluntary or involuntary, may be set aside by the court, like any other judgment, on proper motion under Rule 60(b). A rehearing may be requested under Rule 59(a)(2) and amendments to the court’s findings may be pursued under Rule 52(b).”

Our rules clearly provide, an adequate procedure to review a Rule 41 dismissal; however, the requisite steps for objecting and placing the trial court in error, if any error exists, must be taken in order for this Court to review the proceedings below. The proper steps were not taken here and, therefore, we must affirm.

AFFIRMED.

BEATTY, J., concurs.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur specially-

MADDOX, Justice

(concurring specially).

The opinion has interpreted Rule 41, ARCP, to permit a trial judge to dismiss an action such as this without notice. I would prefer to require notice before granting dismissal. The federal cases seem to go both ways.

The better procedure would seem to suggest that before a trial judge dismisses a case such as here, he should give the other parties notice, and, if necessary, hold a hearing in order to insure substantial justice between the parties. I recommend that Rule 41, ARCP, be amended to require notice and hearing.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.