author: JONES, Justice. TORBERT, Chief Justice

text:
    ROBERTSON & ASSOCIATES (ALABAMA), INC. v. Charles A. BOSWELL, Commissioner of Revenue, State of Alabama. Charles A. BOSWELL, Commissioner of Revenue, State of Alabama v. ROBERTSON & ASSOCIATES (ALABAMA), INC.
    77-7, 77-8.
    Supreme Court of Alabama.
    Sept. 8, 1978.

      Joe M. Dawson of Dawson & McGinty, Scottsboro; Thomas 0. Helton, Carl E. Hartley, Brian P. Mickles, of Stophel, Caldwell & Heggie, Chattanooga, Tenn., for appellant and cross-appellee.
    William J. Baxley, Atty. Gen., State of Ala., Herbert I. Burson, Jr., Counsel, Dept. of Revenue and Asst. Atty. Gen., State of Ala., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., for appellee and cross-appellant.
   JONES, Justice.

This appeal and cross-appeal is from a final decree of the Jackson County Circuit Court granting in part and denying in part a refund of state and local sales and use taxes which had been paid by Robertson & Associates (Alabama), Inc., Appellant and Cross-Appellee. We affirm as to the appeal and cross-appeal.

Robertson, an Alabama corporation, has a coal mining operation in Jackson County, Alabama. Following an audit of its records in 1975, Charles A. Boswell, Commissioner of Revenue, Appellee and Cross-Appellant, assessed the sales and use taxes at issue against the following items used by Robertson in its mining operation:

(1) ammonium nitrate — purchased for use as an explosive for blasting;

(2) gravel — purchased for use as roadbeds around the mining site; and

(3) fuel and other supplies — purchased for the maintenance of a truck used to spray water on the roads to and from the mining pit.

Following a hearing and submission of briefs by the parties, the trial Court entered its order on July 22, 1977, finding as follows:

(1)The purchase of ammonium nitrate is not a tax exempt purchase at wholesale under Tit. 51, § 786(2)(i), Code , because Robertson failed to meet its burden of proving that any part of the ammonium nitrate entered into and became an ingredient or component part of the end product, coal. However, the purchase of the chemical is to be taxed at the reduced state sales and use tax rates provided in Tit. 51, § 786(3)(c), Code, and the reduced Jackson County rates, as a purchase of a machine, part or attachment thereto, used in a mining operation.

(2) Gravel purchased for use as roadbeds is not a machine, part or attachment thereto, within the meaning of Tit. 51, § 786(3)(c), Code, and is thus subject to the state sales and use tax rate of four percent and the Jackson County sales and use tax rate of one percent.

(3) Fuel and supplies used to maintain the water truck are not component parts of an anti-pollution device and are not subject to a tax exemption under Tit. 51, § 786(34)(n), Code. Such fuel and supplies are therefore to be taxed at the state sales and use tax rate of four percent and the Jackson County sales and use tax rate of one percent.

On the Appeal

Robertson first contends that its purchase of ammonium nitrate is exempt from sales and use taxes as a purchase at “wholesale.” We disagree.

Tit. 51, § 786(2)(i), Code, provides, inter alia:

The term “wholesale sale” or “sale at wholesale” means ... a sale of tangible personal property or products (including iron ore) to a manufacturer or compounder which enters [enter] into and becomes [become] an ingredient or component part of the tangible personal property or products which such manufacturer or compounder manufactures or compounds for sale, and the furnished container and label thereof

Because of the wording of this statute, the threshold problem is to determine whether Tit. 51, § 786(2)(i), applies to sales made to Robertson. The statute specifically refers to sales of tangible personal property or products to a “manufacturer or com-pounder,” and does not mention quarry or mine operators. We find, however, that Tit. 51, § 786(2)(i) may be applicable to sales to Robertson, a mine operator, because Tit. 51, § 786(2)(j), Code, is a companion statute and reads in pertinent part: '

The term “a sale at retail” or “retail sale” shall mean all sales of tangible personal property except those defined as wholesale sales . . . Sales of tangible personal property or products to manufacturers, quarry operators, mine operators, or compounders, which are used or consumed by them in manufacturing, mining, quarrying or compounding and do not become an ingredient or component part of the tangible personal property manufactured or compounded are retail sales.

Unlike § 786(2)(i), § 786(2)(j) specifically includes quarry and mine operators. Thus, having determined that Tit. 51, § 786(2)(i), applies to mine operators such as Robertson, we now must decide whether the ammonium nitrate in the present case was purchased in “wholesale sales” and is, therefore, tax exempt.

Double taxation has become a common phenomenon in our overtaxed society; but the statute here under consideration is a genuine, well-intended effort of our legislature to prevent an otherwise double-taxation situation. It is a reasonable, well-drafted Act whose purpose is clear and whose application should pose no practical difficulty. In simple paraphrase, the statute provides that a taxpayer who manufactures or compounds a product for retail sales will not be charged sales tax on the individual items that make up the ingredients or component parts of the finished product; and this for the reason that the sales tax will be collected upon the ultimate retail sale of the finished product.

The explosive, ammonium nitrate and diesel fuel, is used to remove or loosen the cover (called overburden) from the seam of coal. It is the preparatory means of recovery of the mineral — not an ingredient or component part of the finished product as contemplated by the statute. (This is true even though small traces of the chemical may be found in the finished product— the coal.)

The cases of State v. United States Steel Corp., 281 Ala. 553, 206 So.2d 358 (1968), and Boswell v. Abex Corp., 55 Ala.App. 477, 317 So.2d 314 (1975), correctly apply the express intent of the Act. In United States Steel, lance (pure) oxygen was essential to the manufacture of open hearth steel and became an intentional ingredient of the finished product. In Abex the material (carbon electrodes) was used for the dual purpose of providing heat and carbon as an essential ingredient in the manufacture of steel railroad wheels. Neither the open hearth steel in United States Steel nor the steel wheels in Abex would have been the same product apart from the materials which were the subject matter of the tax dispute.

This is not to reject the dictum in United States Steel to the effect that it is not necessary to qualify as a wholesale sale that the added material be beneficial to the finished product. Certainly, this test, aside from its omission from the statute, is too subjective for practical application. Its difficulty of operative effect readily can be seen in the question: “Beneficial from whose point of view?” It is not irrelevant in seeking to execute the intent and purpose of the statute, however, to look to the purpose for which the material was used. The question is not whether the product was in fact made better by its addition to the finished product. Rather, the test is whether the manufacturer (here the mine operator) used the material (the explosive) with the intent and purpose of making it an ingredient or component part of the mined coal; or, conversely, was its presence in the finished product merely incidental to its primary function.

Admittedly, there is no hard and fast rule that could definitively answer every fact situation, and the standard necessarily will have to be applied on a case-by-case basis. Here, the coal operator used the explosives for the sole purpose of removing or loosening the overburden (the dirt and rock above the coal seam). Strip mining, as the very term implies, is dependent for its operation upon the uncovering of the seam of coal to be mined. The explosive material, which is the subject of this tax dispute, is the means, or one of the means, of exposing the commercial material for mining and ultimate sale. Merely because, as an incident of proximity, microscopic particles of water vapor (moisture) and “other gases” from the explosive are chemically traceable in the mined coal does not meet the test of “wholesale sales” as that term is defined by the statute. To allow the purchase of these explosive materials to be classified as “wholesale sales” contravenes the legislative intent to prevent double taxation; instead, such interpretation avoids the tax altogether.

Robertson secondly contends that gravel purchased by it for use as roadbeds from the mining site to the preparation plant is a machine, or attachment thereto, used in mining operations and subject to the lower sales and use tax rates provided for such machines in Tit. 51, § 786(3)(c), Code. The lower Court found this claim to be without merit, and we agree.

“The term ‘machines, attachments and replacements’ in this connection have been given a broad meaning. Their status is not controlled by the material of which they are composed, but by the office they serve in the process. If the article in question performs an integral function in the procedure by which the tangible personal property is produced, we think it is a part and parcel of the machinery used in its production. .
“On the other hand, if a product, such as grease or fuel is useful only as an aid, though vital in enabling the machine or some part of it to operate, but not itself performing a distinct function in the operation, it does not come within the exception.” State v. Newbury Manufacturing Co., 265 Ala. 600, 603, 93 So.2d 400, 402 (1957).

From the evidence presented at trial, it is clear that the gravel purchased by Robertson does not perform an integral, distinct function in Robertson’s operation of extracting and processing coal. Mr. Morrell testified that coal is transported from the mining site to the plant by heavy coal carriers. A special type and size gravel is purchased by Robertson in order to form safe, usable roadbeds for the coal carriers. Thus, the gravel serves merely as an aid, albeit vital, to the coal carriers, enabling these machines to operate. As such, the gravel fails to qualify for the reduced tax rates in Tit. 51, § 786(3)(c), Code.

Robertson lastly asserts that certain fuel and supplies purchased for maintenance of its water truck were acquired primarily for the control, reduction or elimination of air pollution (dust) and are therefore exempt from sales and use taxes under Tit. 51, § 786(34)(n), Code, which provides in pertinent part:

There are exempted from the provisions of this article and from the computation of the amount of the tax levied, assessed or payable under this article the following:
(n) The gross proceeds from the sale of all devices or facilities (and all identifiable components thereof or materials for use therein) acquired primarily for the control, reduction or elimination of air or water pollution and the gross proceeds from the sale of all identifiable components of or materials used or intended for use in structures built primarily for the control, reduction or elimination of air and water pollution.

We again agree with the trial Court that this contention is without merit. Our review of the testimony of Mr. Morrell, relied upon by Robertson as support for its position, indicates that this truck is not used “primarily” for the control of air pollution, but is used for the maintenance of the roadbeds surrounding the mining sites. The fuel and other supplies used to maintain this truck are therefore not components or materials used in an anti-pollution device within the meaning of § 786(34)(n).

On the Cross-Appeal

The Commissioner claims error in the finding below ordering a refund based on the reduced rates applicable to “purchase of a machine, part or attachment thereto, used in a mining operation.” We view this issue as much more difficult than those addressed on the appeal. At first blush, it hardly seems likely that the legislature could have contemplated a sack of fertilizer and a drum of diesel fuel as a “machine” for purposes of qualifying for the reduced rate of taxes. But, as we have seen in Newbury Manufacturing Co., our inquiry cannot be as superficial as our “first blush” reaction. The office they serve, and not the material of which they are made, controls their status.

Indeed, the very rationale by which we reject Robertson’s claim of wholesale sales supports the mine operator’s alternative contention that the explosive materials fit the statutory definition of machine: “It is the preparatory means of recovery of the mineral — not an ingredient or component part of the finished product as contemplated by the statute.” Basically, then, two separate means generally are employed in producing coal by strip mining — explosives and earth-moving equipment. Under the “offices used” test, both equally qualify for the reduced tax rate.

Accordingly, the judgment of the trial Court is affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and SHORES, J., dissent.

TORBERT, Chief Justice

(concurring in part; dissenting in part):

I believe the majority to be correct in affirming the trial court with regards to the taxable status of both the gravel purchased by Robertson for use as roadbeds around the mining site and the fuel and other supplies purchased for maintenance of Robertson’s water truck. Ijowever, I must respectfully disagree with the majority’s holding concerning the assessment of sales and use taxes against the ammonium nitrate purchased by Robertson.

A review of the record in this case shows the various stages of Robertson’s mining operation in Jackson County to be as follows: clearing the land; drilling and blasting for coal; loading and hauling the coal to a preparation plant; processing the coal; and selling the coal to T.V.A. According to Mr. Willard L. Morrell, who is in charge of production at the Jackson County mine, the ammonium nitrate is used by Robertson in the blasting stage. Fifty pounds of the high explosive is placed in a blast hole, which has previously been drilled in the ground to a point approximately one to three feet above a coal seam. One pound of explosive cast primer is added. Approximately two-thirds of the remaining space in the blast hole is filled with a compound which is ninety-four percent ammonium nitrate and six percent diesel fuel and the remaining one-third of the blast hole is filled with earth.

Mr. Morrell stated that upon explosion of the ammonium nitrate mixture a chemical reaction takes place in which the ammonium nitrate is converted into nitrogen, carbon dioxide, and water vapor. Robertson’s two expert witnesses, Professor Wayne 0. Ursenbach, associate with the University of Utah Research Institute, and Dr. Alan Bauer, head of the Department of Mining Engineering at Queen’s University in Kingston, Ontario, verified Mr. Morrell’s testimony concerning this chemical reaction upon explosion. Both experts, who are explosive specialists, testified that the pressure created by the explosion of the ammonium nitrate causes a pulverization or breaking effect on the coal seam. Water vapor and the other gases created by the explosion are driven into the pores of the coal and remain in the coal until it is burned. Mr. Ursenbach and Dr. Bauer both stated that the water vapor and other gases created by the explosion would not be forced out of the coal after the completion of the explosion process because coal has a relatively high propensity to absorb gases.

The only witness presented by the Commissioner was Professor Reynold Shotts, Professor of Mineral Engineering at the University of Alabama, who admitted that both of Robertson’s experts were explosive specialists and that he was not. On cross-examination Professor Shotts further admitted that gases created by the explosion would enter the coal seam and that some of the water vapor and gases might enter the coal, but he could neither prove nor disprove that the gases formed by the explosion would definitely enter the coal.

In State v. United States Steel Corporation, 281 Ala. 553, 558, 206 So.2d 358, 362-63 (1968), a decision relied upon heavily by Robertson as support for its position on this issue, and noted by the majority, this court stated the following:

“Neither Section 786(2)(l)(i), nor 786(2)(l)(j) specify that a product used in manufacturing a finished product must be used with the intent that it become a component of the finished product, or be beneficial, but only that the product used in manufacture ‘enters into and becomes an ingredient or component part’ of the finished product. (Section 786(a)(l)(i).”

In Boswell v. Abex Corporation, 55 Ala.App. 477, 479, 317 So.2d 314, 316, cert. denied, 294 Ala. 334, 317 So.2d 317 (1975), the second decision cited by the majority on this issue, the following is stated concerning the taxing statutes involved in this appeal:

“The U.S. Steel case relied on the Supreme Court’s earlier decision in State v. Southern Kraft, 243 Ala. 223, 8 So.2d 886 that the tax statute defined wholesale sales and retail sales without regard to the quantity of the tangible personal property which entered into or became an ingredient or component part of the finished product. Indeed, 2/ioo of 1 percent was precisely that part of the chemical purchased in the Southern Kraft case which became an ingredient of the finished product. . . . ’”

Thus, applying the statute and previous decisions of the courts in this state to the testimony of all witnesses presented at trial, I cannot agree with the majority that the trial court correctly held that Robertson failed to prove that any part of the ammonium nitrate became an ingredient in the end product, coal. To the contrary, I find that the testimony of Robertson’s witnesses, which is virtually uncontradicted by any testimony of Commissioner Boswell’s single witness, proves that water vapor and other gaseous byproducts of the explosion of ammonium nitrate enter the coal and become an “ingredient” thereof. I would therefore hold that the ammonium nitrate was purchased in “wholesale sales” within the meaning of Title 51, section 786(2)(i) and is exempt from sales and use taxes.

Accordingly, I necessarily would reverse the trial court’s ruling that the .ammonium nitrate is subject to sales and use taxes under Title 51, section 786(3)(c), Code of Alabama 1940 (§ 40-23-2(3), Code 1975), as a purchase of a machine, part or attachment thereto.

SHORES, J., concurs.

      . § 40-23-1 (a)(9)(b), Code 1975.

      . § 40-23-2(3), Code 1975.

      . § 40-23 — 4(16), Code 1975.

      . § 40-23-l(a)(10), Code 1975.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Phil MAHAN, and the Cherokee Hills Lake, Inc. v. R. F. HOLIFIELD and the City of Tuscaloosa.
    77-140.
    Supreme Court of Alabama.
    Sept. 8, 1978.

      Isaac P. Espy, Tuscaloosa, for appellants.
    J. Russell Gibson, III of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellee, R. F. Holifield.
    J. Wagner Finnell, H. Burton Flanagan, and Robert W. Ennis, IV, Tuscaloosa, for appellee, City of Tuscaloosa.
   MADDOX, Justice.

Plaintiffs, Cherokee Hills Lake, Inc., and Phil Mahan, appealed from a judgment entered on a jury verdict for the defendant, City of Tuscaloosa, and a directed verdict for defendant, R. F. Holifield.

Plaintiffs’ property was flooded when a dam broke on March 16, 1973, allegedly causing large amounts of silt and debris to be deposited on their land.

In separate actions, which were consolidated for trial, plaintiffs alleged negligent construction and maintenance and wantonness. Each plaintiff also alleged a breach of a quasi-contract, or one implied by law.

Evidence adduced at trial showed that defendant Holifield acquired ownership of Woodland Hills Lake and the property surrounding the lake in 1955. The dam was erected by the previous owner. Woodland Hills Subdivision was platted in 1957, and Holifield began selling off adjoining lots, but retained ownership of the lake. A fifty-foot easement across the dam was dedicated in the plat to the City of Tuscaloosa for the purpose of maintaining a roadway. This road was, in fact, maintained by the City and there is no question but that the City expressly or impliedly accepted the dedication.

When the Woodland Hills dam broke for the first time in 1961, the City, with its labor crews and equipment, rebuilt it. There was testimony that Holifield provided dirt and concrete to aid the City’s reconstruction project. At that time, the City constructed a spillway in the center of the dam and for some time thereafter continued a program of general maintenance. In 1972, the City performed general repair work on the spillway area which had begun to deteriorate rapidly. It was this deterioration which allegedly led to the 1973 break.

Several expert witnesses testified to the poor construction of the dam, including improper spillway placement, incorrect overflow pipes, poor quality base material, improper slope, and improper monitoring and maintenance practice.

At the close of the plaintiffs’ evidence, the trial court granted defendant Holifield’s motion for a directed verdict. The City’s motion for a directed verdict was denied and the plaintiffs were permitted to amend their pleadings. The jury returned a verdict in favor of the City.

The plaintiffs raise numerous issues for our review. As to defendant Holifield, they argue that the trial court erroneously granted the motion for a directed verdict. They say that the facts created at least a scintilla of evidence showing that Holifield negligently breached his duty to properly reconstruct and maintain the dam.

Concerning the judgment in favor of the City, the plaintiffs claim that the trial judge erroneously charged the jury on the law of the case.

It should be noted that a cause of action against the City sounding in tort was foreclosed by the plaintiffs’ failure to comply with the six-month notice requirement of the Statute of Non-Claims [now Section 11 — 47-23, Code 1975]. Instead, the plaintiffs’ stated cause of action sounded in as-sumpsit and relied on Art. XII, § 235, Constitution of Alabama (1901).

I

Did the trial court err in directing a verdict for defendant Holifield?

Holifield says “No,” arguing that any duty owed by him, as owner of the dam, was assumed by the City since it reconstructed the dam subsequent to the 1961 break. Much of the plaintiffs’ evidence was addressed to the improper construction of the dam. Testimony that the City, after the 1961 break, rebuilt the dam and added a new spillway was undisputed; however, it was also undisputed thát Holifield provided fill-dirt and concrete to the City .at this time. Although the evidence may be weak, we think the fact that Holifield provided materials, coupled with the other evidence, is sufficient to create a scintilla of evidence that the construction of the dam after the 1961 break may have been a joint venture or similar undertaking between Holifield and the City.

We cannot accept Holifield’s argument that any duty he had to maintain or rebuild the dam was assumed by the City when it accepted the 1957 dedication of the roadway. This argument is premised on the theory that without the dam there could have been no roadbed; in other words, the dam was the roadbed.

The estate in land which passes to the City when a roadbed is dedicated was set out in Town of Citronelle v. Gulf Oil Corp., 270 Ala. 378, 119 So.2d 180 (1960), where it was stated that the fee in land to the median line of a street was not subject to alienation apart from such lots after the dedication has become complete. In any event, it is apparent in the present case that the question of who owned the fee to the dam was a fact question. Cf. City of Gadsden v. Elrod, 33 Ala.App. 263, 33 So.2d 268 (1947). Consequently, we hold that the trial court erred in directing a verdict in favor of the defendant Holifield.

II

Two basic issues are presented in plaintiffs’ appeal from the judgment entered on the jury verdict in favor of The City of Tuscaloosa. Those issues are:

(1) Does negligent maintenance of a city street give rise to a cause of action under Sec. 235 of the Constitution?

(2) Was it prejudicial error for the trial court to charge the jury that the plaintiffs were required to show negligence on the part of the City in this particular lawsuit?

Section 235, Constitution of Alabama, reads:

“Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction.”

This constitutional provision has been interpreted to support a cause of action by a private landowner whose property is taken or damaged by a municipality as a consequence of its acts of construction or enlargement. In such actions, the property owner may waive the tort and sue in as-sumpsit for compensation. Hunter v. City of Mobile, 244 Ala. 318, 13 So.2d 656 (1943).

The issue, then, in light of Hunter, is whether the plaintiffs’ property was “either taken or damaged for public purposes.” This Court has long recognized that:

“The right of recovery of compensation by the property owner, under the provisions of section 235 of the Constitution, is confined, of course, to where the municipality is engaged in the construction or enlargement of the works, highways, or improvements of the city.” City of Birmingham v. Graves, 200 Ala. 463, 76 So. 395 (1917).

The taking which is the basis of the alleged implied contract in this case is the reconstruction of the dam in 1961. Injury did not occur until 1973, when the dam broke for the second time. Damages recoverable under section 235 of our Constitution, however, are only those capable of being ascertained at the time the city’s works are being constructed or enlarged. Johnson v. City of Birmingham, 25 Ala.App. 389, 147 So. 452 (1933), citing Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737 (1915). This Court has held that damages occurring subsequent to the time of taking are not recoverable:

“The injuries complained of did not exist, nor could the damages therefor be ascertained upon the construction of the dam, but arose subsequent thereto as the result of the maintenance of same in conjunction with subsequent intervening cause. In other words, the injuries complained of were not capable of being ascertained at the time the dam was constructed, or even so reasonably contemplated as to authorize payment or security therefor as provided by said section 235 at the time of the construction or enlargement of the ways, works, etc.” Meharg v. Alabama Power Co., 201 Ala. 555, 556, 78 So. 909, 910 (1918), accord City of Bessemer v. Chambers, 242 Ala. 666, 8 So.2d 163 (1942).

In Hunter v. City of Mobile, supra, the plaintiffs were allowed to waive the tort and recover under an implied contract based upon section 235, but that case can be distinguished because in Hunter the tor-tious conduct and the “taking” were concurrent. The value of the plaintiffs’ commercial property was diminished by the construction of the Bankhead Tunnel in front of their property on Government Street.

We conclude that the injury to plaintiffs caused by the collapse of the Woodland Hills Dam was not ascertainable at the time of the alleged taking 12 years earlier and was not the type of taking, injury or destruction contemplated by section 235. While we recognize that the remedial nature of the section suggests its liberal construction, to allow so broad a field of operation as the plaintiffs would have us adopt would allow a contract action in every case of alleged negligent construction or maintenance by a municipal corporation. This result, we feel, is not mandated by our constitution or by this Court’s prior decisions.

Having concluded that plaintiffs could not have recovered against the City in as-sumpsit under the facts of this case, we need not reach the asserted error of the trial court in instructing the jury that the plaintiff would be required to show negligence on the part of the City. Any error would be harmless.

For the foregoing reasons, judgment for the defendant, City of Tuscaloosa, is to be affirmed and the directed verdict in favor of defendant Holifield is to be reversed and remanded.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

BLOODWORTH, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and ALMON and BEATTY, JJ., not sitting.


author: JONES, Justice. MADDOX, Justice

text:
    Vernon JORDAN v. Robert MILLER.
    77-206.
    Supreme Court of Alabama.
    Sept. 8, 1978.

      Peter V. Sintz, of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Thomas M. Galloway of Collins, Galloway & Smith, Mobile, for appellee.
   JONES, Justice.

Appellant, Vernon Jordan, brings this appeal from a decree fixing the boundary line between his property and that of Appellee, Robert Miller. Jordan challenges the trial Court’s finding that the parties treated a fence between the properties as a boundary for a period in excess of ten years. The property in dispute in this case lies between the quarter section line described in both Jordan’s and Miller’s deeds as being the boundary line and a fence erected by Jordan and his family. This fence is built on property described in Jordan’s deed at a distance of about sixteen feet from the quarter section line.

Jordan alleges that, in about 1940, he and his family constructed this fence to contain livestock; and, because he was not sure as to the true boundary line, he built this fence back away from the true line in order to have room to repair his fence without trespassing on his neighbor’s property.

Shelly Lee, the father-in-law of Miller, acquired title to Miller’s property by conveyance in about 1949. Jordan rented this property from Lee from about 1959 until 1964. Beginning in 1965, Jordan continuously rented this property from Miller until 1972.

Lee conveyed Miller his property in 1954, retaining a life estate in himself. In 1966, Miller purchased Lee’s life interest. This action was filed in August of 1976.

The dispositive issue in the ease is whether the Circuit Court erred in its finding that the parties treated the fence between the properties as a boundary line for a period in excess of ten years. Specifically, the trial Court found that Miller has owned his property for over ten years and that the parties have treated the fence between the properties as the boundary line for a period in excess of ten years. The trial Court made further findings that Miller has held actual possession of the property, up to the fence in question, under claim of right, believing that he was holding the true line.

In the very recent case of Blackwell v. Harris, 354 So.2d 7, (Ala.1978), this Court pointed out the importance of the ore tenus rule in the classic case involving “the fence line v. a quarter section line — the adverse possessor v. the record title holder.” After a careful study of the record, briefs and applicable law in this case, we must conclude that this is an ore tenus case and due to be affirmed.

The record is clear that Miller used and occupied the property in question and treated the property as his own for the requisite ten-year period. Jordan, by his own admission, states that he never used or occupied the strip in question except during the time he rented Miller’s field from Miller or Miller’s predecessor in title. The record further shows that Miller also leased his property to another tenant who farmed the property as close to the fence line as possible and that Jordan never objected to this use of the property. We think that this and other evidence in the record clearly support the trial Court’s finding.

It is important to note that this is not a case involving the problem of “tacking of possession” because the trial Court correctly found that Miller had possessed the disputed strip of property for the requisite ten-year period, without reference to the years Miller’s predecessor in title possessed the property. Earlier Alabama cases, however, pose an additional barrier: For example, McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954), established that where a party claiming ownership through his predecessor’s adverse possession for the requisite period, but title had not been conveyed to the claimant, then title to the disputed strip of property remained in the grantor. This meant the parties in the instant case could not be considered coterminous owners and the complaint would have to be dismissed for lack of a real party in interest — the claimant’s grantor.

This proposition of law espoused in McNeil has been effectively overruled by the recent case of Watson v. Price, 356 So.2d 625 (Ala.1978), which allows tacking of periods of possession by successive possessors against the coterminous owner seeking to defeat such title, unless there is a finding that the claimant’s predecessor in title did not intend to convey the disputed strip. Here, the trial Court made no such finding; and, indeed, all reasonable inferences from the evidence are to the contrary. As a practical matter, then, the Watson rule allows the trial Court, consonant with its findings of the other requisite elements, to enter a decree finding title in the adverse possessor without joining as a party in interest the claimant’s predecessor in title.

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J. , and MADDOX, J., dissent.

MADDOX, Justice

(Dissenting):

I dissent for the same reasons stated in my dissent in Watson v. Price, 356 So.2d 625 (Ala.1978). In my opinion, this case should be controlled by McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954).

TORBERT, C. J., concurs.


author: BRADLEY, Judge.

text:
    Faye WORLEY and Bobby Worley et al. v. John K. JINKS and Bernice Parker, Director, Department of Pensions & Security, DeKalb County, Fort Payne, Alabama.
    Civ. 1374.
    Court of Civil Appeals of Alabama.
    May 10, 1978.
    Rehearing Denied June 21, 1978.

      W. M. Beck,_§r., of Traylor & McGee and Beck & Beck, Fort Payne, for appellants.
    W. N. Watson of Watson & Watson, Fort Payne, for appellee, John K. Jinks.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for DeKalb County Dept, of Pensions and Security.
   BRADLEY, Judge.

This is an adoption case.

These proceedings commenced on April 8, 1977 when Bobby and Faye Worley filed a petition in the DeKalb County Probate Court seeking adoption of Mendy Michelle Jinks, an eighteen month old female child. It was alleged in the petition for adoption that the child had been abandoned by the father and that the latter’s whereabouts was unknown. The mother of the child consented to the adoption and a temporary order was entered granting the Worleys custody. However, this order was conditioned upon the completion of an investigation by the DeKalb County Department of Pensions and Security (hereinafter referred to as DPS).

On August 11, 1977, based on statements made by John Kelvin Jinks, the purported father of the child, the District Court of DeKalb County, Juvenile Division, issued an ex parte order requiring the sheriff to take the child into custody and place her in the temporary care of DPS.

On August 16, 1977 the Worleys filed a petition for writ of habeas corpus in the Circuit Court of DeKalb County seeking to regain custody of the child. Their petition was premised on the theory that the child was being illegally restrained by DPS. Subsequently, DPS and the Jinkses requested that the writ be quashed. On August 31, 1977 DPS filed a petition in the district court, juvenile division, requesting that the court take jurisdiction of the matter and determine whether the child was dependent and needed further shelter care.

Then, on September 1, 1977, John K. Jinks filed petitions in the district court and the probate court respectively, asking that the adoption proceedings previously filed by the Worleys in the probate court be transferred to the district court. He also asked the circuit court to quash the habeas corpus petition filed in that court by the Worleys. Moreover, he requested that the circuit court give him permanent custody of the child.

On the same day, September 1, 1977, the district court held a hearing at which all parties and the attorneys who represented them entered into an agreement whereby DPS was to retain custody of the child pending a final hearing by the district court.

On September 29, 1977 the circuit court quashed the Worleys’ petition for habeas corpus and transferred the proceeding to the district court, juvenile division, for disposition. Subsequently the adoption proceedings were transferred from the probate court to the district court and the district court entered a pre-trial order stating that the issue to be determined at the final hearing would be whether John K. Jinks, the natural father, had abandoned his child, Mendy Michelle Jinks.

The final hearing was held on October 31, 1977 and judgment was entered on November 3, 1977 finding that John Jinks had not abandoned his child. This appeal is from that judgment.

The evidence taken at the final hearing reveals the following pertinent facts.

John K. Jinks and Quindal Maltese were married on February 11, 1975. The parties lived together about six months before they separated. On February 10,1976, while the couple was still separated, Mendy Michelle Jinks was born. The father visited the mother and the child in the hospital but he did not pay any of the hospital or medical bills resulting from the birth of the child. Shortly after the birth of the child the parties were reconciled and lived together for a short period of time. However, Quin-dal eventually left the father, taking the child with her. During the couple’s second separation Quindal lived with another man.

While the parties were separated the father obtained physical custody of the baby from a friend of Quindal’s with whom the latter had left the baby so that she could hitchhike to Florida with her paramour. John Jinks kept the baby about two weeks, and then returned her to his wife upon the wife’s request.

On August 30, 1976 John Jinks again obtained physical custody of his daughter, Mendy Michelle. At the time he took her into his custody the baby was in poor health, unable to retain food and had flea bites on her body. John Jinks’ sister, Nola Ham, helped him care for the child, and Mendy remained in the Ham household for about four months. During this time, according to the testimony, the child was restored to good health. On January 1, 1977 John Jinks and Quindal Jinks once again decided to live together as husband and wife. Their third effort at maintaining a marital relationship lasted approximately two weeks. At the end of this period John allowed the baby to be taken by a friend of Quindal’s to visit the latter’s grandmother in Dallas, Texas. At this time the Jinkses were living in Holly Beach, Louisiana. Quindal left the Jinkses’ home without revealing her destination several days after the baby had been taken to Dallas. Following these events, John Jinks did not see his daughter again until he found her in De-Kalb County, Alabama.

The evidence reveals that shortly after Quindal left John Jinks, she arrived in Dallas and started residing in a house with Charles Gregory and another man. Thereafter she again acquired physical custody of Mendy Michelle. However, in April of 1977 Quindal gave the child to Joe Gregory, a brother of Charles Gregory, for adoption. The Worleys subsequently obtained the child through the efforts of Ethel Manifold. Mrs. Manifold apparently had received the child from Joe Gregory. At any rate, Mrs. Manifold brought the child to Chattanooga, Tennessee where the Worleys took her. Adoption proceedings were commenced by the Worleys on April 8, 1977.

The testimony shows that from about the middle of January 1977 until August 11, 1977, John Jinks attempted to find his daughter. Upon learning that Joe Gregory had obtained his daughter and was thought to be living in Birmingham, Alabama, Jinks immediately went to Birmingham to try to locate his daughter. He finally found her in DeKalb County and sought the assistance of the district court, juvenile division, in recovering custody of his child. And, as stated earlier, he was ultimately successful in his efforts.

The appellants (Bobby and Faye Worley) state that the district court committed reversible error by: (1) transferring the adoption proceedings from the probate court to the district court; (2) entering the August 11 order taking the child from the Worleys and placing it in the care of DPS; (3) finding that the father, John Jinks, was entitled to custody of his daughter, Mendy Michelle; (4) admitting into evidence a certified copy of a decree of the Eleventh District Court of Louisiana, Sabine Parish, awarding temporary custody of Mendy Michelle Jinks to her father, John K. Jinks; and (5) admitting into evidence a report made to DPS by its Louisiana counterpart on the background of John K. Jinks and his sister and brother-in-law, Mr. and Mrs. Wayne Ham.

With regard to the transfer of the adoption proceedings from the probate court to the district court, the Worleys contend that the adoption by the people of constitutional amendment 364, which gave the probate court of each county “. general jurisdiction ... of adoptions,” effectively precluded the district court from acquiring jurisdiction of the adoption matter in the case at bar and from rendering a decision thereon. Ala. Const, of 1901, amend. 364.

Title 12, chapter 12, section 35, Code of Alabama 1975 provides in applicable part:

“(a) Adoption proceedings, primarily cognizable before the probate court, may be transferred to the district court on motion of a party to the proceeding in probate court.”

Since amendment 364 was adopted after the enactment of section 35, the Worleys argue that the amendment abolished whatever authority the district court had to hear and decide adoption matters.

As we perceive the Worleys’ argument, they are saying that the grant to the probate court of general jurisdiction in adoption proceedings has the effect of giving that court “exclusive jurisdiction” over adoptions. However, the language of amendment 364 does not contain the word “exclusive”; instead, amendment 364 merely provides that the probate court shall have general jurisdiction in adoption matters.

In the case of State v. Sullivan, 95 Fla. 191, 116 So. 255, 259 (1928), the Supreme Court of Florida said:

“Two or more courts may have concurrent jurisdiction of the same subject-matter, and the rule is well settled that when the Constitution or the statute in specific terms vests jurisdiction in any tribunal without the qualifying term ‘exclusive,’ or words of equivalent import, the Legislature may in its discretion vest the like jurisdiction in another court or tribunal.”

Our constitutional amendment 364 does not have the qualifying word “exclusive” in it; consequently, we are of the opinion that that amendment did not give the probate court “exclusive” jurisdiction in adoption cases. Accordingly, the legislature had the authority to give the district courts the power to accept and decide adoption cases which have been transferred to it from the probate court. Title 12, chapter 12, section 35, Code of Alabama 1975.

In the case at bar the natural father, John Jinks, asked that the case be transferred to the district court. As a party to the dispute he was authorized by section 35 to make such a request. And upon receipt of Jinks’ request the adoption proceedings were transferred from the probate to the district court for disposition. Thus, we find no error in the transfer of the proceedings from the probate court to the district court. However, in this instance it is to be noted that the probate court did not refuse to make this transfer.

The Worleys next contend that the district court’s order of August 11, 1977 is erroneous in that the court had no authority to direct the sheriff to take the child, Men-dy Michelle Jinks, and place her in the care of the DeKalb County DPS. The Worleys premise this contention on the ground that they received no summons apprising them of the fact that a hearing would subsequently be held to determine the custody of the child.

At the time the order was issued, the evidence shows that John Jinks appeared before the judge of the district court and related that he was the natural father of the child. He also informed the court that his wife had given the child away and that the child had been illegally removed from his custody. Moreover, he stated that he had traced the baby to DeKalb County, Alabama, and that he wanted her back.

On the strength of Jinks’ allegations, the district court, juvenile division, entered an order holding that the child, Meijdy Michelle, had been neglected and that her best interests required that the court take the child into its custody pending a hearing on the question of permanent custody. The .court’s order further directed that the sheriff proceed to the home of Joe Gregory, take physical custody of the child, and turn her over to the DeKalb County DPS for temporary care pending a final determination of the matters before the court.

On the strength of this order, the sheriff eventually found the child in the custody of the Worleys. The sheriff removed her from the Worleys’ custody and placed her in the temporary care of DPS.

Subsequently, DPS petitioned the district court, juvenile division, to find that Mendy Michelle was a dependent child and in need of supervision; DPS also requested that the proper custodian of the child be ascertained.

Based on the petition filed by DPS, the district court, in the presence of the attorneys who represented the parties, found that Mendy Michelle had been brought into Alabama for adoption in violation of Title 49, section 84(15), Code of Alabama 1940 (Recomp.1958) (currently found in Title 38, chapter 7, section 15, Code of Alabama 1975). The court held further that the child was dependent and that she was to remain with DPS pending a final determination of the questions before the court. This action was taken on September 1, 1977 and an order placing the child in the temporary custody of DPS was entered on that date.

On October 19, 1977 the Worleys filed an objection to the September 1 order of the district court. They complained that neither they, as prospective adoptive parents, nor the child had been issued a summons or notice apprising them of the proceedings held on that date and, consequently, that the district court had no authority to issue the order of September 1, 1977. Moreover, they claimed that the absence of the issuance of a summons rendered invalid the court’s August 11 order directing the sheriff to seize the child.

In urging that the district court’s orders of September 1 and August 11 were invalid, the Worleys apparently rely on Title 12, chapter 15, sections 53 and 56, Code of Alabama 1975. Section 56(1) permits a child to be taken into custody pursuant to a court order provided the court has acted in compliance with section 53(a). Section 53(a) requires that the court direct the issuance of a summons to any party necessary to the custody proceedings, including parents, guardians or other custodians of the child. The issuance of the summons mandates that the necessary parties appear before the court and respond to any allegations made in the petition seeking custody.

However, sections 56(1) and 53(a) are not the only statutory provisions whereby a child may be removed from the physical custody of an interested party. Title 12, chapter 15, section 56(8), Code of Alabama 1975 provides:

“A child may be taken into custody:
“(8) By a law enforcement officer pursuant to an order of the court directing that a child be taken into custody pending hearing on allegations that the child is suffering from illness or injury or is in immediate danger from his surroundings and ordering that the child’s immediate removal from such surroundings is necessary for the protection of the health and-safety of such child.”

We believe that the allegations presented by John Jinks to the district court on August 11,1977 were sufficient for the court to act under section 56(8) and order the child removed from the custody of the Worleys pending a hearing on the matter. ’ Section 56(8) does not contain a provision requiring the issuance of a summons by a court or the receipt of a summons by a party. Consequently, a court order directing a law enforcement officer to seize a child in order to protect the child is valid provided the party from whose custody the child is taken receives sufficient notice of the impending hearing on the matter and the manner and nature of such notice complies with the requirements of procedural due process. See Thomas v. Culpepper, 356 So.2d 656 (Ala.Civ.App.,1978). Sufficient notice was obviously provided the Worleys in this instance since they appeared with their attorney at the preliminary hearing on September 1, and at that time they made no objection to the court’s failure to issue a summons to them or to the order of August 11 under which DPS obtained temporary .custody of Mendy Michelle. Moreover, at the preliminary hearing the court properly apprised all the parties concerned of the proceedings concerning the respective petitions of DPS and John Jinks. Accordingly, we do not believe the court erred in failing to direct the issuance of a summons to the Worleys.

Furthermore, even if we were to adopt the Worleys’ view that the court acted under sections 56(1) and 53(a), the failure of the district court to direct the issuance of a summons to the Worleys did not constitute reversible error. The Worleys and their counsel appeared at the preliminary hearing which was held by the district court on September 1, 1977. And therefore the Worleys waived the service of summons by their voluntary appearance at that hearing in accordance with Title 12, chapter 15, section 53(e), Code of Alabama 1975. Chisolm v. Crook, 272 Ala. 192, 130 So.2d 191 (1961).

The third issue for our consideration involves the Worleys’ assertion that the district court erred in awarding the custody of the child to her father. The Worleys argue that the father is incompetent to have custody of the child and that the best interests of the child would not be served by its being placed in his custody.

However, once again we note that where a court hears a matter ore tenus, its judgment will be affirmed unless it be shown that the judgment is plainly and palpably in error. E. g., Henderson v. Feary, Ala.Civ.App., 340 So.2d 808 (1976).

In the case at bar there is evidence that the father loves his child, that he has cared for it as a father should on the occasions when the baby girl has been in his custody and that he sought diligently to locate the child after its mother gave the child to a third party. In addition, he has a job and earns enough to support his new wife and young Mendy Michelle. Accordingly, we conclude that the evidence is sufficient to support the award of the child’s custody to its father and that the district court’s judgment is not plainly and palpably erroneous.

The Worleys’ next contention concerns their objection to the introduction into evidence of a certified copy of a decree awarding John K. Jinks temporary custody of Mendy Michelle Jinks. This decree was rendered by the Eleventh District Court of Louisiana, Sabine Parish, during the time that the Louisiana court was considering Jinks’ petition seeking a divorce from his wife, Quindal. The Worleys submit that the DeKalb County District Court erred in accepting the Louisiana decree into evidence. They contend that the decree arose out of a divorce action and that the parties to that action later reconciled their differences and resumed cohabitation, thereby nullifying the temporary custody order issued by the Louisiana court. Hence, the Worleys argue that the district court’s August 11,1977 order was based on the Louisiana decree and that in view of the fact that that decree was invalid, their efforts to adopt the child were prejudiced by the district court’s consideration of the decree.

The district court in refusing to strike the exhibit demonstrating the Louisiana court’s award of temporary custody to Jinks stated that it was not admitting the exhibit into evidence to prove that John Jinks had custody of the child by virtue of a court order from another state at the time of the district court’s August 11 order placing the child in the temporary care of DPS. Indeed, the court stated that it was admitting the exhibit into evidence to show the attitude of the Louisiana court toward the father, a fact which the district court deemed relevant and material to the question of the father’s fitness to have custody of his daughter.

The district court, when acting as a juvenile court to decide the proper custodian of a child, has wide latitude in the evidence it will consider, and evidence which is competent, relevant and material to the issue before it will be admitted. Title 12, chapter 15, section 65(d) and (e), Code of Alabama 1975. See Caine v. Caine, 51 Ala.App. 607, 288 So.2d 147 (1973); Bowlen v. State Department of Pensions & Security, 51 Ala.App. 665, 288 So.2d 728 (1974). We consider the evidence admitted to be relevant and material to the issues before the court. Thus, the court was not in error for admitting the exhibit into evidence.

Finally, the Worleys urge that the district court erred in admitting into evidence a letter written to the DeKalb County DPS by the Sabine Parish office of the Family Services Division of the Louisiana Department of Health and Human Resources Administration. The. letter written by the Family Services office contained references to John K. Jinks, his sister, Nola Ham, and Jinks’ child, Mendy Michelle. The Worleys objected to its admission into evidence on the ground that it constituted hearsay.

In admitting the letter into evidence, the district court stated that it had requested that the DeKalb County DPS obtain all relevant information about John K. Jinks and Mendy Michelle Jinks. The court declared that such information would enable it to properly assess Jinks’ claim that he was the father of Mendy Michelle and that she had been illegally taken from his custody-

Title 12, chapter 15, section 69(a), Code of Alabama 1975 provides in applicable part:

“(a) After a petition alleging . dependency has been filed, the court may direct that a predisposition study and report to the court be made ... by the department of pensions and security when the petition alleges that the child is dependent concerning the child, his family, his environment and other matters relevant to the need for . disposition of the case.”

The proferred report obviously complied with section 69(a) since it was obtained in response to the request made to DPS by the district court. However, this report was offered into evidence at the hearing on the parties’ petition in apparent contravention of Title 12, chapter 15, section 65(e), Code of Alabama 1975, which provides in part:

“(e) If the court finds from clear and convincing' evidence, competent, material and relevant in nature, that the child is dependent and in need of care or supervision . . . the court may proceed immediately ... to make proper disposition of the case.”

While the report of the Louisiana authorities on the background of John Jinks would probably have been relevant and material with respect to the question of his fitness to have custody of Mendy Michelle, we nevertheless believe that the report contained hearsay and consequently was not competent evidence. Accordingly, the report should not have been admitted into evidence. Notwithstanding this conclusion as to the admissibility of the report, we are not persuaded that the court’s action amounted to reversible error.

The contents of the letter received from the Louisiana authorities concerned interviews with John Jinks and Mr. and Mrs. Wayne Ham, Jinks’ sister and brother-in-law. Jinks and his sister testified at the hearing on the custody petition and the information contained in the Louisiana report was substantially covered in their testimony.

We held in Bowlen v. State Department of Pensions & Security, supra, that the admission of hearsay testimony into evidence is not prejudicial in instances where substantially the same evidence is provided by the in-court testimony of the persons who were the source of the hearsay evidence. Therefore, we conclude that the admission of the Louisiana report was not so prejudicial to the rights of the Worleys as to require reversal of the district court’s judgment.

No reversible error having been argued, the judgment of the district court, juvenile division, is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    In re Faye WORLEY et al. v. John K. JINKS et al. Ex parte Faye Worley et al.
    77-622.
    Supreme Court of Alabama.
    Sept. 1, 1978.

      W. M. Beck, Sr., of Beck & Beck, Fort Payne, for petitioners.
    W. N. Watson of Watson & Watson, Fort Payne, for respondent, John K. Jinks.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for DeKalb County Dept, of Pensions and Security.
   FAULKNER, Justice.

We originally granted certiorari to consider the jurisdiction of the probate court in light of constitutional amendment 364 which gave that court “. . . general jurisdiction . . . of adoptions . . . After a thorough review we conclude that the Court of Civil Appeals correctly held that this grant of jurisdiction is not exclusive and does not alter § 12 — 12—35, Code of Ala.1975, providing for transfer of adoption proceedings to the district court on motion of a party. Worley v. Jinks, 361 So.2d 1082 (Ala.Civ.App.1978). Consequently, the writ is quashed as improvidently granted.

WRIT QUASHED.

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


author: . BRADLEY, Judge.

text:
    Harriett C. WELCH v. William M. WELCH.
    Civ. 1437.
    Court of Civil Appeals of Alabama.
    June 7, 1978.
    Rehearing Denied July 12, 1978.
    Truman M. Hobbs of Hobbs, Copeland, Franco & Screws, Montgomery, for appellant.

      James W. Cameron of Cameron & Cameron, Montgomery, for appellee.
   . BRADLEY, Judge.

This appeal is the result of an order by the Circuit Court of Montgomery County dismissing the appellant’s (Harriett C. Welch) petition to compel her former husband (William M. Welch) to pay her periodic alimony. The circuit court dismissed the appellant’s action on the ground that it lacked jurisdiction to consider the matter. From the court’s order dismissing her action, appellant has filed his appeal.

The parties to this appeal were divorced in 1972. The events leading up to the termination of their marriage were discussed by this court in Welch v. Welch, 49 Ala.App. 647, 275 So.2d 162 (1973). Moreover, we reviewed the award of alimony made by the trial court to appellant-wife in Welch v. Welch and held that the court’s direction that the husband (appellee here) pay his wife the sum of $550 a month for the period of five years constituted an award of periodic alimony. . Our decision was premised on the fact that this award was subject to the contingency of the wife’s death or remarriage. It is the portion of the original divorce decree awarding periodic alimony which is at issue now.

During her marriage to the appellee the wife suffered from severe mental depression. As a result of this depression she attempted suicide and since her unsuccessful attempt to take her own life she has been partially disabled. As a consequence of her disability, she has been unable to work. We noted the uncertainty of the wife’s future health in Welch v. Welch and concluded that this uncertainty would, if the trial court so found, authorize the modification of the award of periodic alimony under the doctrine of changed circumstances. Accordingly, the issue presented for our consideration on this appeal is whether the trial court could exercise its power of modification after the five year period for which periodic alimony was awarded had ended.

The facts which are relevant to this issue may be succinctly stated. The trial court in divorcing the parties ordered the husband to pay his wife periodic alimony for five years. These payments were to cease on October 1, 1977. The husband provided his wife with alimony until October 1, 1977. On that date he mailed his ex-wife a check which contained the notation “final payment.” Thereafter, the wife’s attorney wrote the husband and advised him that his former wife was still unable to work. The attorney’s letter also stated that the husband was not justified in stopping the alimony payments. The husband ignored this letter and when he failed to provide any alimony on November 1,1977, the wife filed a petition to compel him to continue his alimony payments. This petition was filed on November 18, 1977.

The husband subsequently moved to dismiss the wife’s petition on the ground that the trial court did not have jurisdiction over the matter because the five year period for which alimony payments had been ordered had expired on October 1, 1977 and the wife’s petition was not filed until after that date. On this basis, the trial court dismissed the wife’s petition. We believe the court’s action was proper.

In Banks v. Banks, Ala.Civ.App., 336 So.2d 1365 (1976), we recognized that a trial court retained the power to modify an award of periodic alimony in instances where the award was for a specified period provided that the modification occurred pri- or to the date on which the period terminated. In the present case the specified period for which periodic alimony was awarded was five years. This award was to terminate on October 1, 1977 unless modified prior to that date. The wife, however, did not seek modification of the original award until after October 1, 1977. Consequently, the trial court no longer had any power to modify its original award of periodic alimony and it could not exercise jurisdiction over the wife’s request for further payments.

Nor do we agree with the wife’s contention that our decision in Welch v. Welch, supra, held that the five year time limitation on the award of periodic alimony was an arbitrary and unreasonable restriction. Our language in that case merely indicates that the periodic monthly payments were premised on an indefinite future and as such, were subject to modification by the trial court. However, this language was conditioned upon the five year limitation. In other words, the wife had every right to seek the future modification of the monthly payments provided she exercised that right within the five year period for which the payments were to be made. Had she attempted to do so, the trial court, at its discretion, could have required the continuation of the alimony payments beyond the five year period. Regretfully, she did not seek modification before the expiration date of the trial court’s decree, and in view of Banks v. Banks, supra, we have no choice but to affirm the trial court’s refusal to consider her action to compel her former husband to continue to provide her with monetary support.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte Harriet C. WELCH.
    77-684.
    Supreme Court of Alabama.
    Sept. 15, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    LAWLER MOBILE HOMES, INC., d/b/a Shelby County Mobile Homes v. Barry ELLISON.
    Civ. 1458.
    Court of Civil Appeals of Alabama.
    Aug. 2, 1978.

      Fred Blanton, Birmingham, for Lawler Mobile Homes, Inc.
    Alvin B. Foshee, Clanton, for appellee.
   WRIGHT, Presiding Judge.

This is an áppeal from the denial of a motion to set aside a judgment by default.

Plaintiff Ellison brought suit against Lawler Mobile Homes, Inc. and Nationwide Financial Corporation for breach of an implied warranty of fitness and merchantability in the sale of a mobile home. After taking testimony the court, on July 15, 1977, entered judgment by default against Lawler Mobile Homes, Inc., awarding damages in the amount of $3,750. On August 12, 1977 Lawler moved to set aside the judgment under Rule 55(c). The motion was denied on October 11. Defendant Nationwide Financial Corporation moved to be dismissed from the suit and the motion was granted by order entered on December 13, 1977. On December 14, Lawler filed a pleading styled as an amendment to the original motion to set aside the default. Hearing on that motion was held by the court on January 10, 1978. Testimony was taken orally before the trial court and the motion was denied the same date. Lawler gave notice of appeal on February 14,1978.

On Motion To Dismiss Appeal

Plaintiff has moved to dismiss the appeal on the ground that it was not timely filed. Plaintiff submits that Rule 59.1, ARCP applies in this case. We disagree.

Rule 59.1, ARCP provides inter alia that failure to dispose of certain post-trial motions within ninety days after their filing without extensions of the time constitutes a denial of the motion and the time for giving notice of appeal begins to run from the ninetieth day. If Rule 59.1 applied, time for appeal would have expired on December 22. Rule 59.1 expressly applies only to post-trial motions filed under Rules 50, 52 and 59. The motion in this case was filed under Rule 55(c).

We point out that the default judgment entered on July 15, 1977, because of the operation of Rule 54(b), was not a final judgment and did not become final and appealable until the entry of the judgment dismissing the remaining defendant Nationwide Financial Corporation on December 13, 1977. See Nelson-American Developers Ltd. v. Enco Eng’r Corp., 295 Ala. 185, 326 So.2d 103 (1976); Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975); Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 300 So.2d 359 (1974). It would appear that defendant had thirty days thereafter to file a motion to set aside the default judgment. The amendment to the motion to set aside filed by defendant on December 14 and heard by the court on January 10, 1978 could then become a post-trial motion under Rule 59(e) and thereafter be subject to Rule 59.1. Appellate review of the January 10 denial of the motion to set aside the judgment by default and of the judgment itself was timely invoked by the notice of appeal filed on February 14, 1978.

For the reason that Rule 59.1, ARCP did not become operative in this case and because the rule does not apply to a motion to set aside a default filed under Rule 55(c), the motion to dismiss the appeal because not timely filed is denied.

On the Merits

Lawler contends that the evidence shows an abuse of discretion in refusing to set aside the default judgment. The contention is based upon the testimony of Moore-land, owner of Lawler, that after being served with the complaint, he contacted plaintiff’s attorney and discussed with him the fact that he was in the process of making repairs and correcting the defects of the trailer which were the basis of the suit. He stated that the attorney told him not to worry about the suit, but to complete the repairs. Though the attorney did not tell him that a. default would not be taken, Mooreland gave the suit papers to his attorney and told him it was being taken care of. No answer was filed by Lawler. Though it was stated by Mooreland that all the repairs and corrections had been made except one small one, default was entered.

It is settled that Rule 55(c) places the granting or denial of a motion to set aside a judgment by default within the discretion of the trial judge. He is in the best position to judge the circumstances and evaluate the good faith and credibility of the parties. 10 Wright & Miller, Federal Practice and Procedure, § 2685. However, Rule 55(c) is to be liberally applied to the end that all the matters may be heard and judged upon the merits. Our supreme court has said it disfavors default judgments. Cockrell v. World’s Finest Chocolate Co., Inc., 349 So.2d 1117 (Ala.1977).

We believe the record of the pleadings and the undisputed evidence presents a situation which requires the disfavor of disposing of a controversy by default to be exercised. This suit was filed on May 19, 1977. It was served on Lawler on May 24. On June 13, 1977 defendant National Financial Corporation filed a motion to dismiss or transfer the suit to Jefferson County for improper venue in Chilton County. The motion was accompanied by affidavit. On July 15, 1977, a judgment by default was entered by the court against Lawler. On August 12, motion to set aside was filed by Lawler. The motion of National Financial Corporation remained pending. The case had not apparently been set for trial. The motion to set aside was denied on October 11, 1977. Lawler filed an amended motion on October 14, 1977 alleging that the defects for which damages were claimed by plaintiff had been repaired by Lawler and any damages remaining would be nominal. On December 13,1977 defendant National’s motion to dismiss was granted. Lawler again amended its motion to set aside on December 14 and hearing was set thereon for January 10, 1978.

At the hearing testimony was given that after receiving service of the complaint, Mooreland, owner of Lawler, contacted plaintiffs attorney and advised him that he was proceeding with repairs of the defects to the trailer listed by the attorney in a pre-filing letter to National Financial Corporation. Lawler had been sent a copy of the letter. He told the attorney that they only lacked one small item being completed and that they were awaiting a piece of material from the factory valued at $35.00. The attorney told Mooreland to go ahead and finish and not to worry about the lawsuit. Mooreland informed his attorney of the suit and gave him the copy of the complaint. However, he told him that because of the state of repairs and his conversation with plaintiff’s attorney, action on the suit would be unnecessary.

Plaintiff’s counsel admitted that he was contacted by Mooreland on June 14, 1977 and discussed with him necessary repairs to the trailer, but that he never told him that he was not going to proceed with the suit or that he would not take a default. Plaintiff’s counsel did not deny Mooreland’s testimony that he told him not to worry about the suit and to go ahead with repairs. The testimony that some repairs were actually made after the filing of suit with the acquiescence of plaintiff and his attorney was not denied. Lawler’s counsel verified that Mooreland told him of his conversation with plaintiff’s counsel and that the matter was being settled.

The primary purpose of the rule providing for entry of default judgments is to provide a means of enforcement of rules of pleading so that litigation may be expedited and speedily completed. If the evidence fails to indicate an intent to violate that purpose and no substantial prejudice to the non-defaulting party is indicated, the federal courts follow a policy of liberality in granting relief from default judgments. Klapprott v. U. S., 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); Gomez v. Williams, 420 F.2d 1364 (1970). It is said that all doubts should be resolved in favor of the party seeking relief. Tolson v. Hodge, 411 F.2d 123 (1969).

In considering the undisputed testimony that there was conversation between defendant Lawler and counsel for plaintiff concerning the law suit and that efforts toward settlement were being made by Lawler and accepted by defendant during the time for pleading, it is clear that Law-ler did not default intentionally with a purpose of delay. It is further evident that less than sixty days expired from service until judgment, with prompt attempt to secure removal of the default. There appears no question of substantial prejudice to plaintiff if the default were set aside. There is considerable question as to whether Lawler may have corrected all or some of the defects for which damages were granted in the judgment. It is the opinion of the court that in view of the record and undisputed evidence in this case, the trial court failed to properly exercise its discretion and that its failure to set aside the default judgment appears unjust. We therefore reverse the judgment and direct the default judgment be set aside and opportunity for trial on the merits be afforded defendant Lawler.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.