author: JONES, Justice. MADDOX, Justice

text:
    David L. WATSON and Zora Watson v. Grady L. PRICE, Jr., and Barbara C. Price, Ida Belle Young, Intervenor.
    SC 2474.
    Supreme Court of Alabama.
    March 3, 1978.
    Rehearing Denied April 7, 1978.
    R. S. Hill, Jr., Robert S. Hill, III, Montgomery, for appellants.
    D. Coleman Yarbrough, Montgomery, for intervenor.
   JONES, Justice.

This appeal, from a decree fixing the boundary line between the parties, challenges the trial Court’s application of the “tacking of adverse possession” principle to facts essentially undisputed. The question for this Court’s decision may be stated in the context of Appellants’ contention, thusly: The trial Judge erred in permitting Appellees to tack the period of adverse possession of their predecessor in title where such prior owner had acquired title by the requisite adverse possession period, but failed to include the disputed strip in the instrument of conveyance. Therefore, contend Appellants, because the disputed strip lies between the respective properties, the parties are not coterminous landowners and the ten-year statute (Tit. 7, § 828) is inapplicable.

Counsel for Appellants, in brief, aptly summarizes the factual background which they contend renders the “tacking” principle inapplicable.

“Young [Appellee] testified that Dr. Sor-rell [Young’s predecessor in title] purchased the property in Section 32 in 1944 . and that the fence across the section line in Section 5 was in existence at that time . . If, as appellees contend, Dr. Sor-rell held the land in Section 5 which is in dispute as an adverse possessor . . ., then he would have gained title to it by adverse possession in 1954, long before his contract of sale to Young in 1962 . ..”

Then, Appellants quote Mr. Justice Poster in Spires v. Nix, 256 Ala. 642, 644-645, 57 So.2d 89, 92 (1952):

“The trouble about the application of this theory [privity of possession, allowing tacking] to the status of complainant in this case is that it contemplates a situation where the prior claimant by adverse possession had not acquired the title to the property at the time of his conveyance to the complainant but only acquired a status of adverse possession which could lead to a title in complainant when tacked to her possession subsequently occurring. If the Robertsons had acquired the title by adverse possession at the time of the conveyance to complainant, that title could only pass to the complainant by a sufficient conveyance or by the status of adverse possession for the required length of time by the complainant subsequent to her conveyance from them.”

Next, Appellant’s brief correctly analyzes two subsequent cases thusly:

“In McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954), this Court reversed and rendered a trial court’s determination of a disputed boundary line. The opinion by Mr. Justice Lawson, with Chief Justice Livingston and Justices Stakely and Merrill concurring, stated that title to the disputed strip of land between Complainant and Respondent had been gained through adverse possession by Complainant’s predecessor in title. Since the strip was not contained in the description of the conveyance to Complainant, the title to the strip was not conveyed and remained in Complainant’s predecessor in title. Complainant and Respondent were, therefore, not coterminous land owners and the complaint should have been dismissed by the trial Court.

“The case of Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), was frequently cited throughout the brief submitted for cross-complainants-appellees Young and Price. In that 1975 decision, this Court recognized the principles referred to above:

‘“We agree that ordinarily title to land gained by adverse possession must be included in the deed of conveyance in order for it to effectively pass to the grantee. But where, as here, the predecessors of Mrs. Huffman had not yet gained title to the disputed strip at the time of their conveyance to her but had possessed it adversely, the failure to include in the deed the description of the disputed strip would not of itself disallow tacking.’ [294 Ala., at 191, 314 So.2d 65.]”

The Appellant concludes:

“Following the principle uniformly stated in the above cited cases and others, the disputed strip must have been in the description in the conveyance from Sorrell to Young in order for Sorrell’s interest in that land to pass to Young. The uncontroverted evidence is that the disputed strip in Section 5 was not so conveyed. Sorrell only deeded land in Section 32. Therefore, by their own testimony, and the evidence presented, it is clear that cross-complaints received no interest in the disputed strip from Sorrell.”

The difficulty lies not in our disagreement with the Appellant’s analysis of the Court’s holdings in Spires and McNeil; rather, we are constrained to disagree with the conclusion that the instant case is due to be reversed on the authority of these prior cases.

We will not indulge the'pretense that our case law is without confusion or that the cases are readily reconcilable on any reasonable basis. That the tacking principle and its application are unclear is dramatized in Spires where the Court declined to allow tacking (though affirming a decree based on adverse possession on other grounds) without any reference to whether the claimant was placed in possession of the disputed area by his immediate grantor.

Fortunately, however, subsequent case law has shed sufficient light on this problem for resolution of the instant case. Mr. Justice Merrill, speaking for the Court in Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967), applied, in a similar factual context, the tacking principle:

“Since each grantee holding under [their predecessors in title] entered into possession of the whole area up to and including the fence, and each transferred his legal paper title to his successor who went into possession up to the fence, the deed, taken into consideration with such transference of possession, was sufficient to raise the privity essential to the tacking of all the possessions from and including [their predecessors in title] to the appellees.” 281 Ala., at 292, 202 So.2d at 77.

Later, the Graham holding was summarized in Carpenter v. Huffman, 294 Ala. 189, 192, 314 So.2d 65 (1975):

“Thus, Graham stands for the applicable proposition that when the grantee is put into actual possession of the disputed land adversely held by his immediate grantor, sufficient privity is established to allow tacking.”

In the instant case, the boundary line contended for by Appellees was well defined by a fence that ran generally parallel to the East/West section line described in the deeds of the respective parties. By the undisputed evidence, Dr. Sorrell was in possession of, and using, the property south of the section line up to the fence at the time he contracted to sell to Mrs. Young; and he placed Mrs. Young in actual possession of the entire property, including the now disputed strip. , While Carpenter’s summary of Graham may have been unnecessary to the holding in Carpenter, Graham stands as direct authority for our affirmance of the trial Court’s decree allowing tacking under the facts of the instant case.

Because the application of the tacking principle is confusing under our present case law, we deem it appropriate to restate the principle and articulate the rationale for the rule. For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title. We perceive no logical or practical reason why the application of the privity of possession rule — permitting tacking— should be dependent upon whether the claimant’s immediate grantor possessed the disputed property for more or less than the statutory period.

Close analysis of the problem reveals two basic reasons supportive of the rule.

1) If privity of possession were not recognized — thus rendering tacking impermissible — prior owners, who had possessed and used the questioned property adversely for the requisite period, but whose deed omitted any descriptive reference to such property, would retain title to property which ordinarily he obviously intended to convey. Absent tacking, the number of small, landlocked parcels of land throughout the state — the title to which in most cases would be impossible to trace — would stagger the imagination.

2) The second reason for the liberal tacking rule can be best illustrated in the context of the present case. If the late Dr. Sorrell acquired title by adverse possession of the disputed strip before he conveyed title to Mrs. Young; if his conveyance contained no description south of the section line; and if these circumstances defeat tacking, would not the following inquiry be pertinent? What are these parties doing fighting over property to which neither has a legitímate claim? Are not the Sorrell heirs necessary parties to this action? Indeed, the McNeil Court, not permitting tacking, answered these questions by ordering the dismissal of the cause.

This is not to say that the prior owner, who conveys by the same legal description contained in the grant from his predecessor in title, necessarily conveys title to property gained by adverse possession. Unquestionably, among other options, he may retain title in himself; but any contest as to this issue should be between such grantor and his grantee, and not some third party.

Furthermore, nothing herein should be construed as changing, or otherwise modifying, in any way the right of the co-termi-nous owner, against whom adverse possession is claimed, from contesting any or all periods sought to be tacked in the same manner as if tacking were not involved. Tit. 7, § 828, Code; Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972); and Montgomery v. Spears, 218 Ala. 160, 117 So. 753 (1928). Likewise, we are not to be understood as affecting the long-standing rule placing the burden of proof on the party asserting title by way of adverse possession. McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973); and Smith v. Persons, 285 Ala. 48, 228 So.2d 806 (1968).

AFFIRMED.

BLOOD WORTH, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

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

MADDOX, Justice

(dissenting).

As the majority concedes, our ease law in this area is confused, but the majority opinion today clearly expands the doctrine of Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), to allow a person who pastures cattle up to a fence which zigs and zags from post to trees, on rural farm land to get the title to the land if his neighbor does not object to his use of the land for a period of ten years.

As I understand the law of adverse possession, all presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976).

In any event, the acts of adverse possession of this rural property falls far short of the possessory acts upheld in Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967), and Carpenter v. Huffman, supra.

To establish adverse possession against the title owner, our cases hold that the evidence should be clear and convincing. Even assuming that Dr. Sorrell gained title to the disputed strip by adverse possession (I think the evidence shows that the fence here was nothing more than a pasture fence), Dr. Sorrell did not transfer title to it to Ms. Young.

The majority correctly points out, by quoting from Carpenter v. Huffman, that “ordinarily title to land gained by adverse possession must be included in the deed of conveyance.”

In Carpenter, as the case points out, the predecessors of Mrs. Huffman had not gained title to the disputed strip at the time they conveyed to Mrs. Huffman. Also, Carpenter involved a lot which had been “enclosed” and permanent improvements had been placed on the disputed strip. I believe the majority falls into grievous error to equate the possessory acts in this case with those in Carpenter or Graham.

In Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967), a case involving a city lot, this Court did adopt a principle set out in 3 Am.Jur.2d, Adverse Possession, § 65, p. 156; which reads as follows:

“ * * Thus, where a person having title by deed to a lot or tract of land described in the deed also has inclosed with it and is in possession of adjoining land to which he has no record title, and conveys the land by the description in the deed and delivers with it possession of the entire inclosure, the continuity of possession will not be broken, and the two possessions may be joined and considered as one continuous possession. So, where a purchaser of land incloses and occupies a tract outside his boundaries, believing it to be included therein, and in that belief conveys to another by the same description, intending that the grantee shall take the whole inclosed area, his possession may be tacked to that of his grantee. * * *) >)

However, in Graham, this Court did not overrule several prior eases, but distinguished them, as follows:

“Appellant cites cases in his excellent brief which have applied or followed the principle that even though one owner has acquired additional land by adverse possession, a deed describing only the land described in the deed to the owner does not convey title to the additional land to the succeeding grantee. We shall not try to distinguish these cases fully from our holding in the instant case, but at least one point of dissimilarity will be noted.
“In Haywood v. Hollingsworth, 255 Ala. 453, 51 So.2d 674, which appellant states ‘is clearly decisive of the issues involved in this appeal.’ the only evidence supporting any claim of adverse possession was inadmissible and could not be considered. Similarly, in Mims v. Alabama Power Co., 262 Ala. 121, 77 So.2d 648, the evidence fell ‘far short of that required to prove adverse possession.’ Also in Lay v. Phillips, 276 Ala. 273, 161 So.2d 477, we said: ‘The appellant therefore failed to establish by proof of the required degree his right by adverse possession to the land involved in the disputed strip.’ In McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160, we held that equity was without jurisdiction to entertain a boundary line suit under Tit. 13, § 129, or Tit. 47, § 3, Code 1940, because the disputants were not coterminous owners. In Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286, we reversed because there was no evidence to support the boundary line fixed by the court based upon appellee’s claim of adverse possession to lands between the true government line and an old hedgerow.”

In Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286 (1951), this Court said:

“The principles of law here involved are stated in the case of Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409, 410 as follows:
“ ‘It is of course well understood that as between respective claimants a boundary line may be established by adverse possession by which one party may thus acquire land extending to that line which would not otherwise have been his, and thereby may thus cause a strip of land to be attached to his holdings. Brantley v. Helton, 224 Ala. 93, 139 So. 283; Branyon v. Kirk, 238 Ala. 321, 191 So. 345. See Code of 1940, Title 7, section 828, page 713, where the cases are cited. This statute does not prescribe a limitation on the right acquired by the twenty year prescription period of adverse possession. Jones v. Rutledge, 202 Ala. 213, 80 So. 35; Smith v. Smith, 213 Ala. 670, 106 So. 194; Earnest v. Fite, 211 Ala. 363, 100 So. 637; Stearnes v. Woddall, 218 Ala. 128, 117 So. 643.
“ ‘And if a conveyance of his holding is sufficient to include the strip thus acquired, it will pass under it. But what is the result if the description in the conveyance is not sufficient to include this acquired strip? That is our question here.
“ ‘It is of course true that no act or even agreement of the parties can take the land out of section 11 and put it in section 14. And while the boundary line between adjacent land owners may be fixed and changed by agreement or by adverse possession, they cannot relocate a section line as surveyed by the Government surveyors. So that if the land was in section 11 as thus surveyed, it has so remained and suill is thus situated. And the parties both treat it so. It follows that a conveyance of land described as in section 14 does not on its face include land in section 11. But can it be treated as an appurtenant to the land in section 14, so as to pass with a conveyance of it?
“ ‘This question has been treated by the authorities which declare that as a rule a grantee can acquire by his deed only the land described in it, and does not acquire by way of appurtenant land outside such description. But that when a boundary line is mobile, such as a water course— though it may shift — a deed conveys the land up to such shifting line as it does up to a fixed line. Jones v. Johnston, 18 How. 150, 15 L.Ed. 320.
“ ‘And so when the land is described by Government numbers, the deed does not purport to convey an area outside of such described land. For in Humphreys v. McKissock, 140 U.S. 304, 11 S.Ct. 779, 781, 35 L.Ed. 473, it was said, quoting from Woodhull v. Rosenthal, 61 N.Y. 382, 390, that “land can never be appurtenant to other land, or pass with it as belonging to it. All that can be reasonably claimed is that the word ‘appurtenance’ will carry with it easements and servitudes used and employed with the lands for whose benefit they were created. Even an easement will not pass unless it is necessary to the enjoyment of the thing granted.”
“ ‘This does not conflict with the principle that when shifting boundaries gradually change, the tract embraces land thereby added.’ ”

In McNeil v. Haddon, 261 Ala. 691, 76 So.2d 160 (1954), this Court reversed the trial court for allowing a party to claim title to a disputed strip, when the evidence showed that the party’s predecessors in title had gained title to the strip and had not transferred the title to the grantee. This Court said:

“It is established that: ‘If two coterminous proprietors agree on a boundary line, and each occupies to its location, the possession is presumed adverse, and after ten years has the effect of fixing such line as the true one. Turner v. DePriest, 205 Ala. 313, 87 So. 370; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Gunn v. Parsons, 213 Ala. 217, 104 So. 390; Mink v. Whitfield, 218 Ala. 334, 118 So. 559; Smith v. Harbaugh, 216 Ala. 202, 112 So. 914. If a coterminous landowner holds actual possession of the disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Smith v. Bachus, 201 Ala. 534, 78 So. 888; Hoffman v. White, 90 Ala. 354, 7 So. 816; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Shepherd v. Scott’s Chapel, 216 Ala. 193, 112 So. 905.’ Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900. See Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10.

“As heretofore shown, the boundary was fixed by the trial court as contended for by the complainant, but the evidence in the record before us supports no conclusion other than that the line so fixed is not the section line properly surveyed. It is apparent from the decree that the trial court based its action on its findings from the evidence and from personal inspection of the premises that there is such a line as claimed by complainant which has been in existence for many, many years; that the predecessors in title of the complainant and the respondents as far back as the original homesteaders had agreed on that line as the boundary and that under such agreement complainant’s predecessors in title held actual possession up to the agreed line under a claim of right openly and exclusively for a continuous period much in excess of ten years, believing that they were holding to the true line.

“We will not relate the evidence upon which the trial court acted. It has been examined with care and we are clear to the conclusion that it supports the findings of fact to which we alluded above. Moreover, as mentioned before, the trial court in accordance with permissible practice, made a personal inspection of the property before making its finding of fact; hence, the decree is reviewed here as if it were a verdict of a jury. Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So.2d 770; Monroe Bond & Mortgage Co. v. State, 254 Ala. 278, 48 So.2d 431. See Fuller v. Blackwell, 246 Ala. 476, 21 So.2d 617; Wait v. Lee, 238 Ala. 451, 191 So. 628.

“The respondents’ claim to the land which lies east of the line consisting of the settlement road and hedgerow and west of the section line is based entirely on the description contained in the deed which they received in 1950. But respondents received no title to the strip of land under that deed, for their grantors were without title thereto, since the predecessors in title of complainant had previously acquired title by adverse possession.

“The complainant is in the same predicament. He has no title to the strip of land in dispute because it is not within the description of the deed which he obtained in 1946 from Mrs. C. D. Smith and he has not had adverse possession for the required period. The description in the last-mentioned deed covers only the south one-half of the southwest one-quarter of Section 32 and it is without conflict in the evidence that the strip of land in dispute is west of the section line dividing Sections 31 and 32.

“The title to the disputed strip of land having been in Mrs. C. D. Smith at the time of her conveyance to complainant, the title thereto could pass to the complainant only by a conveyance wherein the said strip is sufficiently described or by the status of adverse possession for the required length of time by the complainant subsequent to his conveyance from Mrs. Smith. Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409; Haywood v. Hollingsworth, 255 Ala. 453, 51 So.2d 674; Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286; Spires v. Nix, 256 Ala. 642, 57 So.2d 89; Holoway v. Garter, [261] Ala. [51,] 72 So.2d 728. See ‘Title by Adverse Possession,’ by the Hon. Shuford B. Smyer, of the Birmingham Bar. The Alabama Lawyer, Vol. 14, pp. 352, 360.

“So the conclusion is inescapable that the complainant and the respondents are not coterminous owners. Their lands, according to the record before us, are separated by the disputed strip, title to which is in complainant’s grantor or her successors.”

The majority does not attempt to distinguish McNeil v. Haddon and Wilson v. Cooper, and cases similar to them, which I believe are almost identical to the facts here. I think the principles announced in McNeil and Wilson apply here. In fact, in those cases, there were hedgerows, here, only a pasture fence which zigged and zagged.

TORBERT, C. J., concurs.

      . The majority’s statement that the fence “ran generally parallel to the East/West section line described in the deeds” is not supported by the record. Not only does the fence not run “generally parallel,” at one point, the fence crosses the survey line. The surveyor testified about its meanderings:
      “Q All right, sir. I’ll ask you if you recall that 1 was the one, I believe, who called you and requested that you make that map showing that, did I not?
      “A That’s correct. (Referring to Complainant’s exhibit no. 2).
      “Q And at that time I believe you inquired as to whether or not we wanted the fence to truly zig-zag and show the true fence, or show it every three hundred feet; is that correct?
      “A That was our understanding.
      “Q Yes, sir.
      “A Because—
      “Q Because I believe you stated at that time that if we’re going to show every zig-zag in the fence that it would probably be a long drawn out survey; is that correct?
      “A The map would be rather hard to handle, it would be too big to handle.
      “Q And so then while this looks as a smooth line running along south there, actually as the fence runs, it does not run that smoothly; is that correct?
      “A That’s correct.”


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    UNITED STATES of America VETERANS ADMINISTRATION and Ray A. Wright v. Dr. James A. WALKER et al.
    SC 2644.
    Supreme Court of Alabama.
    March 3, 1978.

      William D. Hudson and William R. Willard, Jr., Gadsden, for appellants.
    Robert B. Huie of Huie, Pernambucq, Stewart & Smith, Birmingham, for appel-lee Dr. James Walker.
   MADDOX, Justice.

The issue here is whether a patient’s malpractice suit was barred by limitations. We hold that it was not and reverse the trial court’s granting of the doctor’s motion for summary judgment.

At the hearing on motion for summary judgment, it was admitted that the act or omission complained of occurred more than two years prior to the filing of the suit, and that the act or omission was discovered within two years.

The dentist claimed that, under the provisions of Title 7, § 25(1), Code of Alabama, 1940, the plaintiff should have filed his action within two years after the act or omission occurred. The trial court agreed with him.

Plaintiffs (the patient and the Veterans Administration, which joined him to recover for corrective treatment it had furnished him) contend that Title 7, § 176(10) controls and that they had one year after the effective date of the passage of Title 7, § 176(10) within which to file suit.

Title 7, § 25(1), reads as follows:

“Same; actions against physicians and surgeons and dentists for malpractice. (1) All actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action, and not afterwards. Provided that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further that in no event may the action be commenced more than six years after such act.”

On September 23, 1975, the legislature superseded Section 25(1) by enacting into law § 176(10), which reads as follows:

“Limitation on time for commencement of actions against physicians, dentists, medical institutions and other health care providers. — (1) All actions against physicians, surgeons, and dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action, and not afterwards. Provided that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further that in no event may the action be commenced more than four years after such act except that an error, mistake, act, omission or failure to cure giving rise to a cause of action which occurs before the effective date of this article shall not in any event be barred until the expiration of one year from the effective date of this article.”

Unquestionably, the patient’s alleged cause of action existed on the effective date of the Alabama Medical Liability Act. If Section 25(1) is applicable as the dentist urges, the patient’s cause of action was barred. The patient contends that the portion of § 176(10) which we have emphasized tolled the running of the statute until September 23, 1976, and since his action was filed on August 6,1976, it was timely. The dentist takes the position that even if the emphasized portion of § 176(10) applied, it would apply only to “undiscovered” causes of action. The patient argues that the phrase “in any event” shows that the legislature intended to extend the limitation period for an additional year for both discovered and undiscovered malpractice actions, which had not expired on September 23, 1975, the effective date of § 176(10).

We agree with the patient.

In determining that the legislature intended to extend the limitation period for an additional year on existing causes of actions, we are guided, in part, by the principles set out in Henry and Wife v. Thorpe, 14 Ala. 103 (1848), wherein this Court stated:

“ * * * yet the majority of them, and the best reasoned discussions, maintain that it is competent for the legislature to modify the terms of prescription at pleasure, and where the prescription has not been completed when the law was changed, the past shall be effaced and the substituted law shall determine the time that bars a recovery. It is certainly allowable, and perhaps would be altogether just, that effect should be given to the time past, whenever a change is made in the statute of limitations, so that the term may not be protracted; but if no such provision is made in the new law, we cannot perceive by what authority the courts can give to both statutes a proportional operation. The latter, if not an express, will operate an implied repeal of the former, and thus destroy its effect in toto. Statutes of limitations it has been often held, do not enter into the contracts of parties, or affect their rights, until the presumption is complete: Besides, like all other acts of legislation their field of operation is the future, and they will not be permitted to act retrospectively. Dwarris on Sta. 680 to 682; Wilkinson on Lim. 140 to 147; Rathbone v. Bradford, 1 Ala.R. 312; State v. Click, 2 Id. 26; Prince v. The U. States, 2 Gal.Rep. 204; Tuft v. Rice, Breese’s Rep. (Ap.) 30; Prevo v. Lathrop, 1 Seam.Rep. 306; Piatt v. Vathier et al., 1 McL.Rep. 158; Union Cotton Manufactory v. Lobdell, 7 Mart. Rep.N.S. 111 [108]; Reeves v. Adams, 5 Lou.Rep. 292 [288]; 9 Bac.Ab. 228, Bouv. ed. An act of limitations, being remedial, may operate upon contracts or causes of action existing at the time of its enactment, that is, may prescribe the time beyond which suits shall not be maintainable upon them; and the fact that there was a statute upon the subject when the contract was entered into, or the right of action accrued, can make no difference.
“True, the enlarging or lengthening of the term may introduce some seeming incongruities, but these, according to a modification of facts, affect the plaintiff and defendant about equally. Thus, where the prescription, as in this case, is thirty years, and the time was within three years of expiring when the new law was enacted, (evidently with the intention of shortening the term to one third,) the bar is lengthened seven years, as it cannot become complete until ten years after the passage of the act. But suppose but five years had elapsed when the last statute was passed, then ten years more, instead of twenty-five, as required by the act of 1802, would have perfected the prescription. It is competent for the legislature, upon any change of the law in this respect, to make such special provisions as are deemed expedient, but if a contrary intention is not manifested, the entire term prescribed by the new law must elapse after it takes effect, before the prescription is complete.”

We are of the opinion that the intent of the legislature was to extend the limitation period for both discovered and undiscovered actions which occurred before the effective date of the Act (September 23, 1975) for one year after the effective date of the Act.

The trial court, in granting summary judgment, made a determination that, as a matter of law, the action was barred. This was error, and the judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    John M. GRAY, Jr. v. James BRADFORD et al.
    SC 2647.
    Supreme Court of Alabama.
    March 3, 1978.
    William L. Utsey, Butler, for appellant.
    Ronnie E. Keahey, Grove Hill, for appel-lees.
   PER CURIAM.

Affirmed on the authority of Francis v. Tucker, 341 So.2d 710 (Ala.1977); and Snider v. Shirley, 341 So.2d 677 (Ala.1976). See also Ferrell v. Shomo Land Company, Inc., 345 So.2d 297 (Ala.1977).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Orville CHAMBERS et al. v. William T. CHAMBERS et al.
    SC 2717.
    Supreme Court of Alabama.
    March 3, 1978.

      James C. King of Wilson & King, for appellant Raleigh Chambers.
    J. A. Hornsby, Gadsden, for appellant Orville Chambers.
    Hugh Reed, Jr., Centre, for appellees.
   BEATTY, Justice.

This appeal must be dismissed because of the failure of the order appealed from to qualify as a final order under Rule 54(b), ARCP.

Six of the heirs of W. M. Chambers sued two other Chambers’ heirs, alternatively contending that a deed of certain real estate executed in favor of the two defendants and one of the plaintiffs was unsupported by consideration, or delivery was otherwise void for failure of Mrs. Chambers to join in its execution, or that it was the result of prenuptial fraud. They alleged that the deed was executed for convenience, with the parties having agreed that the grantor would retain possession of and be entitled to the rents and income of the land during his lifetime, and at his death each of the plaintiffs and the defendants would receive a one-eighth part. Thus, the plaintiffs maintained, a resulting trust was created for Chambers during his lifetime, and for the parties after his death, until March, 1975. At and after that time, it was alleged, the defendants refused to divide the rents and income with the plaintiffs in equal portions.

The plaintiffs sought a declaration of a resulting trust in the lands, or cancellation of the deed. They asserted that the lands could not be equitably divided or partitioned in kind; and that the descriptions of the lands were ambiguous, requiring a survey and preparation of a plat. In addition, plaintiffs requested an accounting for sums received as rents and income since January 1, 1975 and a sale of the lands and division of the proceeds among the parties.

The answers of the defendants set up the defenses of laches, estoppel, consideration for the deed by care rendered to Mr. Chambers, the absence of any resulting trust, a claim against the plaintiffs for services rendered, that the deed represented a gift, and res judicata.

The issue of title was tried to a jury which returned a verdict imposing a constructive trust on the lands in the plaintiffs’ favor. Under that verdict the trial court decreed that each party owned an undivided one-eighth interest in the land; however the trial court expressly reserved the other issues for further action by it.

It may be readily observed that this is a cause with multiple parties and claims, and is not unlike Simpson v. First Alabama Bank of Montgomery, 345 So.2d 292 (Ala.1977) except that there are additional issues in the instant case which were not present in that case. This Court had no option in that case but to dismiss the appeal because the trial court had disposed of neither the plaintiffs’ claims against the decedents’ estate nor their petition to sell the property of the deceased to pay those claims. The same situation exists in this case. As yet the trial court has not decided whether the property can be equitably divided, or whether a sale is necessary, or whether the multiple plaintiffs are entitled to the accounting requested. Furthermore, the trial court did not enter a final judgment as to “fewer than all of the claims of parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b), ARCP. In the absence of such a determination in a multiple party or multiple claim case, no decision is final and the order will not support an appeal. Simpson, supra. Accordingly, the appeal must be, and is, dismissed.

APPEAL DISMISSED.

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


text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    No. 11.
    Supreme Court of Alabama.
    March 10, 1978.
    SENTELL, Clerk.
   RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION-FEES FOR MISCELLANEOUS FILINGS— SETTLEMENT UNDER WORKMEN’S COMPENSATION LAW

Mr. Ray Bozeman, Circuit Clerk of Cov-ington County, has submitted to me the following inquiry:

Code of Alabama, 1975, Section 12-19-71, provides for a docket fee in the amount of $35.00 to be collected in each case filed in Circuit Court.
Code of Alabama 1975, Title 25 Chapter 5, deals with matters relating to Workmen’s Compensation. Section 25-5-56 provides for settlements between parties and requires that such settlements be approved by the Circuit Judge and duly entered in the records of the Court in the same manner and have the same effect as other judgments. Said section also contains the provision that the cost of such proceedings shall not exceed $2.00.
My question is should I, as Circuit Clerk, collect $35.00 or $2.00 in those cases arising under Section 25-5-56, supra .

Opinion # 11, issued February 1, 1978, is withdrawn and is replaced by this Opinion.

Section 12-2-19(d), Code of Alabama 1975, authorizes the Clerk of the Supreme Court to “give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the supreme court to any other officer or official who shows a need for such opinion and requests the same.”

The question, as stated, cannot be answered categorically. Rule 7, Alabama Rules of Judicial Administration, furnishes a key to the answer. A preliminary question to the stated question is: How shall the filing of a settlement under the Workmen’s Compensation Law be treated for cost purposes? Rule 7 must be interpreted in the light of the statutory provisions for court costs and fees.

Rule 7, supra, is as follows:

FEES FOR MISCELLANEOUS FILINGS

Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.

The words, “any filing,” in Rule 7 refer to the words, “cases filed,” in § 12-19-71, supra. See Opinions of the Clerk, No. 1, April 26, 1977, 345 So.2d 1329.

A “case” has been defined as “a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice.” State v. Montevallo Coal Mining Company, 29 Ala.App. 318, 197 So. 82, 86 (1940). See also Bell v. Mar-Mil Steel and Supply Company, 54 Ala.App. 432, 309 So.2d 471, 474 (1975).

“Case” includes a settlement under the Workmen’s Compensation Law. State v. Montevallo Coal Mining Company, supra.

“Consolidated fee structure” in Rule 7 means the fees prescribed in Chapter 19 of Title 12, Code of Alabama 1975.

A fee of $10.00 “for filing settlement under Workmen’s Compensation Act” was removed from the schedule of fees when Section 21 of Title 11, Code of Alabama 1940, as amended, was expressly repealed by Section 16-134 of Act No. 1205, Acts of 1975. There is no express cost under Chapter 19 of Title 12 for filing a settlement under the Workmen’s Compensation Law.

The filing of a settlement under the Workmen’s Compensation Law should be treated as an original filing for cost purposes under Section 12-19-71, Code of Alabama 1975.

That part of Section 12-19-71, Code of Alabama 1975, pertinent to this opinion reads as follows:

Amount of docket fees to be collected in civil cases — The docket fees which shall be collected in civil cases are:
il * * *
“(c) thirty-five dollars for cases filed in the circuit court.”

Attention is directed to Section 12-19-72, Code 1975, which provides that of the docket fees collected in civil cases filed in the circuit court, two dollars ($2.00) shall be distributed to the fair trial tax fund. Section 25-5-56, Code 1975, relating to settlements of workmen’s compensation provides in part: “Such proceedings shall not be deemed subject to State trial, library or other taxes, state or local.”

The Opinion of the Attorney General issued to Ms. Polly Conradi, Clerk of the Circuit Court, Tenth Judicial Circuit of Alabama, on May 5,1977, states that the clerks of the circuit courts of this State cannot charge library taxes in workmen’s compensation settlements.

It is my opinion, in view of the Attorney General’s opinion, that the docket fee for filing settlements in workmen’s compensation cases is thirty-three dollars ($33.00).


text:
    PAUL KREBS AND ASSOCIATES v. MATTHEWS AND FRITTS CONSTRUCTION CO., INC.
    77-90.
    Supreme Court of Alabama.
    March 10, 1978.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellant.
    Lyman H. Harris, Carol A. Smith of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
    Robert M. Girardeau, Birmingham, for Board of Water & Sewer Commissioners for the City of Florence and James Hughes, Jr., amicus curiae.
   PER CURIAM.

In 1970, the Board of Water and Sewer Commissioners of the City of Florence and Paul Krebs and Associates, an engineering firm, advertised for bids on a proposed sewer project. Matthews and Fritts Construction Company was the successful bidder.

Garvin Clemons was an employee of Matthews and Fritts and was injured in the course of his employment. Clemons filed suit against Paul Krebs and Associates and several other defendants. His complaint charged Krebs and others with negligence proximately resulting in his injury. He alleged that Krebs, as engineer over the job and pursuant to contract “had the authority to control the job and all activity on said job.”

Subsequent to the filing of this suit, Krebs filed a third-party complaint against Matthews and Fritts, Clemons’ employer, claiming indemnity from Matthews and Fritts for any judgment ultimately obtained by Clemons against Krebs. Matthews and Fritts filed a motion for summary judgment against Krebs in the third-party action, based upon depositions, etc. which established without dispute that Matthews and Fritts was the employer of plaintiff Clemons when the accident occurred. As such, Matthews and Fritts claimed immunity from suit by Krebs as a matter of law.

The trial court granted Matthews and Fritts’ motion for summary judgment, severed the third-party action, and Krebs appealed from the order granting summary judgment against it.

Squarely presented is whether an employer’s statutory immunity from suits on account of injury to employees under § 25-5-53,1975 Code, protects the employer from suits by third parties seeking indemnity (under contractual provisions) from claims arising out of injuries sustained by employees of the same employer.

If the employer is protected by the statute from such suits, then we are not confronted with a case of construction of specific contractual terms, but rather the case is one of statutory construction.

§ 25-5-53, Code 1975 (formerly Title 26, § 272, Code of Alabama 1940, Recompiled 1958), provides:

. . Except as provided in this article and article 2, as the case may be, of this chapter, no employer included within the terms of this chapter . shall be held civilly liable for any personal injury to or death of any workman who is an employee of the same employer and whose injury or death is due to an accident while engaged in the service or business of the employer, the cause of which accident originates in the employment. . . . ” (Emphasis Supplied)

In at least three cases, this court has held that where a third party (here Krebs) is charged with active negligence in the injury of an employee while engaged in his employment, the employer is not subject to suit at the instance of the third party. In Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., Inc., 335 So.2d 125 (Ala.1976), the employee filed suit against Sherman. Sherman filed a third-party claim against Gadsden (the employer) alleging that its active negligence was the proximate cause of the employee’s injury and sought indemnity for any sums that might be adjudged against Sherman. Speaking through Justice Faulkner, the court said:

“. . . This is not permitted. Title 26, § 272, Code of Alabama 1940. The statute provides immunity of the employer from liability for injuries to his employee arising out of the course of employment. While an employer may im-plead the manufacturer of a defective product causing injuries to his employee, the reverse is not true. . . . ” (335 So.2d at 127)

Sherman did not involve an express contract of indemnity. However, Gunter v. U. S. Fid. & Guar. Co., 340 So.2d 749 (Ala.1976), which did, is to the same effect, as is the recent case of Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1977), which also involved a contractual indemnity provision.

In Robins Engineering, Inc. v. Cockrell, supra, the court said of Gunter v. U. S. Fid. & Guar. Co., supra:

“In our recent decision, Gunter v. U. S. Fid. and Guar. Co., 340 So.2d 749 (Ala.1977), a unanimous court held (per Faulkner, J.) that a general contractor, charged with active negligence in furnishing and maintaining a scaffold from which a young workman fell, could not have im-pleaded the subcontractor (employer of the workman) in the wrongful death action, nor could indemnity be sought from the subcontractor-employee (under an almost identical indemnity agreement as here) because of the latter’s immunity under the Workman’s Compensation Statute.” (354 So.2d at 4)

These decisions are consistent with the language of the legislation. The statute says that no employer shall be held civilly liable for injuries to workmen injured in the course of his employment. To allow a third-party tort-feasor to recover over against the employer for injury to an employee would be to allow indirectly what is prohibited directly.

Neither of these three recent cases mentioned Eley v. Brunner-Lay Southern Corp., Inc., decided by this court in 1972. 289 Ala. 120, 266 So.2d 276. That case held that provisions in a lease of a drilling machine, which obligated the lessee (employer) to indemnify the lessor in the event of a negligence suit by the lessee’s employee against the lessor, did not contravene the Workmen’s Compensation Act. The court held that the alleged tort-feasor (the lessor) could maintain an action on the indemnity provisions of the lease over against the lessee (employer) if the injured employee were successful in his suit for damages against the lessor.

Gunter v. U. S. Fid. & Guar. Co., supra, is in direct conflict with Eley and, thus, must be acknowledged to have overruled Eley to the extent that Eley held that the suit of an alleged tort-feasor against an employer on a contractual indemnity provision was not barred by the Workmen’s Compensation Act. Indemnity provisions in construction contracts are becoming commonplace. Courts are increasingly being called upon to decide whether such provisions allow suits by third parties against employers where the third party is charged with negligently injuring an employee of the employer. See: 2A Larson Workmen’s Compensation Law, § 76.41. Some courts have held that the language of the Workmen’s Compensation Acts is broad enough to preclude such suits; others have decided otherwise. The Court of Appeals of New Mexico, for example, in Gulf Oil Corp. v. Rota-Cone Field Operating Co., 84 N.M. 483, 505 P.2d 78 (1972), held that an employer which had voluntarily agreed to indemnify a third party against whom the administrator of a deceased workman filed a wrongful death action was not liable under the indemnity agreement; because to so hold would subject the employer to liability for injury or death and a workman in addition to benefits allowed in the Workmen’s Compensation Act.

We believe our statute compels this result. § 25-5-53 says that no employer (under the Workmen’s Compensation Act) “shall be held civilly liable" for personal injuries to workmen. Krebs would have us engraft an exception to this language which would permit a civil suit against the employer where the employer agrees to indemnify a third-party tort-feasor sued for causing the injury to the employee. This writes into the legislation an exception which is not there.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    In re JIM WALTER RESOURCES, INC. v. LOCAL UNION NO. 12014, etc., et al. LOCAL UNION NO. 12014, etc., et al. v. JIM WALTER RESOURCES, INC., a corp. Ex parte W. L. PRESTON et al.
    77-2, 77-15.
    Supreme Court of Alabama.
    March 10, 1978.

      Jerome A. Cooper, John C. Falkenberry, Birmingham, for Local Union No. 12014, etc., et al.
    James P. Alexander, Stephen E. Brown, Michael D. Waters, Linda A. Bunsey, Birmingham, for Jim Walter Resources.
   FAULKNER, Justice.

This appeal and petition for writ of cer-tiorari arise out of a labor dispute between Jim Walter Resources, Inc. (Company) and Steelworkers Local 12014. The Circuit Court of Jefferson County issued a preliminary injunction, inter alia, limiting the number of pickets at the Company’s main entrance to four. In the wake of alleged violence by the picketers, blocking all traffic at the main entrance, the court issued an order on September 2, 1977, requiring:

“THREE: That in the event any such person or persons fails to disperse and leave the premises or the vicinity thereof, the Sheriff is directed to take such person into custody and identify them as to their name and residence address for the purpose of further proceedings against such person or persons.
“FOUR: In the event any such person or persons taken into custody shall refuse to identify themselves or disperse from the premises, the Sheriff is ordered and directed to take such person or persons into custody for violation of this Court’s Order and hold such person for appearance before the Court on the 7th day of September, 1977 at 1:30 P.M. in Courtroom 411, Birmingham, Alabama. Such person taken into custody shall be released upon them making good and valid bond in the amount of $300 conditioned upon such person’s appearance before the Court on the 7th day of September, 1977 at 1:30 P.M.”

On September 4 the petitioners failed to disperse after having had the order read to them. They were taken into custody pursuant to the September 2nd order and released on bond. On September 7, in open court, the petitioners were served with an order to show cause.

On September 8 the court amended the order of September 2, providing:

“THREE: That in the event any such person or persons fail to disperse and leave the premises or the vicinity thereof, the Sheriff is directed to take such person into temporary custody for the limited purpose of identifying them as to their name and residence address for the purpose of further proceedings against such person or persons.
“FOUR: The Sheriff is further directed to report to the Court in writing within twenty-four (24) hours the name and residence addresses of any such person or persons.”

So far as this appeal is concerned, no arrests were made under this amended order.

On September 9 petitioners were tried upon a stipulated record and convicted of criminal contempt. They were each fined $50, and the fines were stayed pending appeal. We granted writ of certiorari to review the order of contempt entered by the Circuit Court of Jefferson County in proceedings arising out of a civil matter, to determine whether service of a rule nisi in open court deprives one of due process, and whether the trial court’s order dated September 8 violates due process.

We affirm in part, reverse in part, and remand.

APPELLATE JURISDICTION

The respondent Company filed a motion to dismiss the petition for writ of certiorari on the grounds that jurisdiction lies in the Court of Criminal Appeals. There seems to be little, if any doubt that the petitioners were convicted of criminal, as opposed to civil, contempt. See Ex Parte Moody, 351 So.2d 538 (1977). Nor is there any question that certiorari is the proper method of review where, as here, petitioners are not confined in prison. Knight v. State, 288 Ala. 428, 261 So.2d 750 (1972); Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968); Local 612, International Brotherhood of Teamsters v. Bowman Transportation, Inc., 276 Ala. 563, 165 So.2d 113 (1964).

Rather, the question presented by the motion to dismiss is where the contempt proceedings are to be reviewed. The Company contends that the original appellate jurisdiction of a criminal contempt conviction lies in the Court of Criminal Appeals, regardless of the nature of the underlying matter. Indeed, this was the holding of Musgrove v. United States Pipe & Foundry Co., 290 Ala. 156, 274 So.2d 640 (1972), where the court considered the language of Title 13, § 111(4), et seq., Code of Alabama of 1940 (1973 Supp.). Adopting the interpretation of Robertson v. State, 20 Ala.App. 514, 104 So. 561 (1924), recently overruled in Ex Parte Tetter, 6 Div. 694, Dec. 20, 1977, - So.2d - (Ala.Crim.App.), the court quoted:

“While the statute investing this court with original jurisdiction in habeas corpus is not as clear as it might have been, we are of the opinion that a careful reading of it does not disclose a legislative intent to circumscribe the jurisdiction there conferred. The statute reads that ‘this court shall have authority to issue writs of ha-beas corpus.’ We do not consider that authority to be limited to such cases ‘as are necessary to give this court general superintendence and control of jurisdiction inferior to it, and in matters over which it has final appellate jurisdiction.’ ”

In this case, however, we are dealing with a review by certiorari. The present version of the statute interpreted in Mus-grove, § 12-3-11, Code of Alabama 1975, states that “Each court [of appeals] shall have authority to grant injunctions and issue writs of habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction Accord, § 12-3-8, Code of 1975. The phrase “as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction” is a limitation upon the Court of Criminal Appeals’ statutory power to issue other remedial and original writs.

Even more compelling is the narrower language of § 6.03 of the Judicial Article:

“(c) The court of criminal 'appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.
“(d) . . . Said court [of criminal appeals] shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction . . . ” (Emphasis added.)

From the above-quoted language of statutory and constitutional provisions,' clearly the crucial test is whether criminal contempt arising out of civil matters is within the exclusive appellate jurisdiction of the Court of Criminal Appeals.

We hold that because the Court of Criminal Appeals has no appellate jurisdiction over civil matters, it, likewise, has no jurisdiction over contempt proceedings arising out of civil matters. Section 12-3-9, Code of 1975, defines the exclusive appellate jurisdiction of that court:

“The court of criminal appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases.”

Since misdemeanors are defined as all non-felonious public offenses, § 1-1-7, Code of 1975, and contempt is not a public offense (see § 1-1-5, Code of 1975) (Electrical Workers Local 136 v. Davis Constructors & Engineers, Inc., 334 So.2d 892, Ala.1976; Ex Parte Moody), contempt is not a misdemeanor over which the Court of Criminal Appeals has exclusive appellate jurisdiction.

The Company’s motion to dismiss the petition for writ of certiorari is denied.

CONTEMPT CONVICTIONS UNDER SEPTEMBER 2ND ORDER

Petitioners were convicted of constructive criminal contempt. Their arrest was made pursuant to the court’s order of September 2, providing, inter alia:

“FOUR: In the event any such person or persons taken into custody [for the purpose of identification] shall refuse to identify themselves or disperse from the premises, the Sheriff is ordered and directed to take such person or persons into custody for violation of this Court’s Order and hold such person for appearance before the Court . . . ”

The petitioners were arrested for refusal to disperse from the premises and were released on bond. They were not arrested under warrant but were served with a rule nisi in open court on September 7.

Petitioners contend that this order requiring the Sheriff to arrest violators of the order without the prior requirement of a verified arrest warrant or a rule nisi is violative of due process. We agree.

In Dayis Constructors the following provision of a preliminary injunction was held null and void:

“ ‘The Sheriff or any other duly authorized police officer who witnesses a violation of this order by any person shall forthwith arrest such person and bring him before me.’ ”

Holding on appeal that “a written accusation is essential to initiate an indirect contempt proceeding,” the court stated:

“[A]ccording to both the federal and state constitutions, the accused must be given notice of the nature and character of the charges, and be given an opportunity to answer.
“Is due process satisfied if alleged con-temnors are advised of the charges against them after they have been arrested? No. Alabama cases have long required that actions for indirect contempt be initiated by a rule nisi or an arrest warrant.”

We held that service of the rule nisi in open court deprived the alleged eontemnors of due process. The convictions are due to be reversed.

SEPTEMBER 8TH ORDER

Petitioners further contend that the amended order of September 8th is null and void under Davis Constructors. We cannot agree.

The September 8th order, in pertinent part, provides:

“THREE: That in the event any such person or persons fail to disperse and leave the premises or the vicinity thereof, the Sheriff is directed to take such person into temporary custody for the limited purpose of identifying them as to their name and residence address for the purpose of further proceedings against such person or persons.”

Unlike the preliminary injunction of the Davis Constructors and the order of September 2nd, this order of September 8th does not require that alleged contemnors be placed under full arrest. To hold that alleged contemnors cannot be taken into a strictly limited custody for the sole purpose of identification would render such injunctions meaningless in virtually all instances of mass picketing. “Temporary custody for the limited purpose of identification . is a reasonable measure for the enforcement of court orders and is not such a deprivation of liberty as to invoke the due process protections set forth in Davis Constructors. Accordingly, the order of September 8th is affirmed.

The Company’s motion to dismiss is denied. The judgment of the trial court is affirmed in part, reversed in part, and remanded.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All the Justices concur.

      . Although petitioners asserted that the contempt is of a civil nature in their petition for writ of certiorari, they take a different stance in brief, contending that this case involves criminal contempt.


author: JONES, Justice.

text:
    Raymond M. SPYGLEY and Nell Beachamp v. David E. MILLER.
    SC 2713.
    Supreme Court of Alabama.
    March 24, 1978.
    James W. May, Birmingham, for appellants.
    Samuel Maples, Birmingham, for appel-lee.
   JONES, Justice.

This appeal challenges the trial Court’s grant of injunctive relief arising out of alleged violations of restrictive “land use” covenants. We affirm.

The facts show, by way of stipulation, that the Appellants erected and maintained on their lot two metal outbuildings, in the nature of “utility” buildings, for the storage of lawn and garden tools and equipment.

In the duly recorded “Protective Covenants,” under the heading “Land Use and Building Type,” appears the following language:

“No lot shall be used except for residential purposes. No building shall be erected, altered or placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one half stories in height, and a private garage for not more than three cars.”

Appellants, through counsel, readily admit that, standing alone, this provision is fully supportive of the injunctive relief granted below. They say, however, that because of additional language under the heading “Temporary Structures,” “there is at least an ambiguity insofar as the intent of the covenants.” This additional language reads:

“No structures of a temporary character, trailer, tent, shack, garage, barn or other out building shall be used on any lot at any time as a residence, either temporary or permanent.”

The ambiguity, urge the Appellants, consists in the:

“. . . grammatical inconsistency between two provisions of the restrictive covenants. It is submitted that the covenant which deals with land use and building type is inconsistent with the covenant which deals with temporary structures . the inclusion of the covenant dealing with temporary structures not only indicates but proves beyond question that the covenants as a whole contemplate the use of temporary structures. Otherwise, it would be unnecessary to restrict the use of those structures to prohibit their use as a residence either temporarily or permanently.
“The temporary structures covenant would be superfluous if it had not been contemplated at the time the restrictive covenants were imposed that such structures as those maintained by appellants would in fact be used in conjunction with the use of the residential dwelling house described in the land use and building type covenant.”

Our resolution of the issue here presented, within the limited context of the single argument urged for reversal, is guided by well-established canons of construction. In Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483 (1948), the Court held:

“Where the language of the restriction is clear and unambiguous it will, of course, be given its manifest meaning, but its construction will not be extended by implication or include anything not plainly prohibited and all doubts and ambiguities must be resolved against the party seeking enforcement.” 251 Ala., at 231, 36 So.2d at 484.

A restatement of the rule appears in Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974):

“ ‘. . . While such provisions in deeds are not construed to create restrictions beyond the fair and natural meaning of the words used, read in the light of the circumstances under which they were used, they will be enforced according to their fair and natural meaning, in the absence of fraud or mutual mistake . . 292 Ala., at 231, 292 So.2d 103 [at 106].

Applying these principles of construction, we agree with the holding of the trial Court that the pertinent language of the restrictive covenant is clear and unambiguous.

Though ingenious in its concept, reference to the “Temporary Structure” paragraph, as a means of invoking the rule of strict construction against such covenants, does not render the restrictive language less clear nor impugn with doubt its manifest intent. The “Land Use and Building Type” covenant, in clear and unambiguous terms, prohibits the erection and use of any building on the subject lot other than one detached family dwelling and a private garage. The test of Bear is met.

That the “Temporary Structure” section is totally inapplicable, and thus irrelevant, to the situation before us may be illustrated by several hypothetical situations, one of which will suffice to make the point:

Suppose the purchaser of a lot in the subject subdivision undertook the construction of a single family residence as contemplated by the “Protective Covenants.” The “Temporary Structures” provision would prohibit his use of a “trailer, tent, shack, garage, barn or other out building” as a residence pending the completion of the dwelling.

Finding separate fields of operation for the separate and distinct provisions, and thus no inconsistency or ambiguity, we hold that the clear and plain language of the restrictive covenant is enforceable.

AFFIRMED.

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


text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Julia G. SMITH.
    77-6.
    Supreme Court of Alabama.
    March 24, 1978.

      James S. Sledge, of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.
    Howard B. Warren, of Simmons & Tor-bert, Gadsden, for appellee.
   JONES, Justice.

This appeal arises from a jury verdict in favor of Plaintiff-Appellee, Julia G. Smith, awarding her benefits under a life insurance policy allegedly obtained on the life of her husband. We reverse and remand.

Because our reversal is grounded solely on the error of the trial Court in granting Plaintiff’s requested charge relating to the effective date of the policy (and thus a retrial is probable on the theory of misrepresentation), a detailed recital of the facts other than those essential to this narrow point would be inappropriate.

On February 18, 1976, Hardee W. Hester, an agent of Defendant-Appellant, Liberty National Life Insurance Company, solicited an offer to purchase life insurance from the Smiths. The coverage sought was a $20,000 whole life policy on Smith’s husband. The application also requested an additional $20,000 accidental death provision on Mr. Smith and similar, additional $2,000 coverage on each of five juvenile dependents. The application contained a 60-day acceptance provision. Smith paid the initial premium under this policy and obtained a receipt containing conditional temporary insurance.

A condition for coverage under both the policy and the receipt was the good health of the proposed insured. Mr. Smith’s medical examination indicated that he had an elevated blood pressure level. Because of this problem, Liberty National, in accordance with its underwriting standards, rejected Smith’s application. Instead, it returned a policy providing $20,000 whole life coverage on Mr. Smith, but at an increased premium and without the accidental death provisions. This substitute policy was received by the branch office on March. 10, but, before it could be delivered to Mr. Smith, and be accepted by him Smith died. This suit to recover benefits under the policy followed.

In her complaint, Smith raised three theories of recovery: (1) that Mr. Smith was insured under the terms of the policy; (2) that agents, of Liberty National misrepresented that the policy had been approved, thus causing her not to seek coverage elsewhere; and (3) that Liberty National negligently or wantonly delayed issuance of the policy. Liberty National’s Motion for Directed Verdict as to each count was denied, and the jury returned a general verdict for Smith for $20,000.

Liberty National contends the Court erred in denying the Motion for Directed Verdict. Furthermore, it argues that the following instruction, given at the Plaintiff’s request, was erroneous:

“The Court charges you, ladies and gentlemen of the jury, if you are reasonably satisfied from the evidence that the permanent insurance policy in this case was mailed by the company from Birmingham, Alabama, on March 9th or the 10th, 1976, then this would be the effective date of the policy and would constitute delivery of the policy.”

Liberty National contends this instruction was erroneous because the policy issued substantially differed from the coverage requested and, therefore, constituted a counter-offer — not an acceptance. Therefore, the mere act of mailing the counter-offer to its district office did not create a contract.

It is well recognized that an application for insurance is a mere offer which does not ripen into a contract unless, and until, it is accepted by the insurance company. Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974). If the company issues a policy materially different from that for which the application was made, it constitutes a rejection of the original offer and is a counter-offer which becomes a binding contract only when accepted by the original offerer. Barnes v. Atlantic & Pacific Life Insurance Company of America, 295 Ala. 149, 325 So.2d 143 (1975); and Miller, supra.

The policy issued on March 9 or 10 was materially different from that originally applied for in that it disallowed several requested benefits and required a considerable increase in premiums. By applying the above-stated rule to the facts before us, the subsequent policy issued by Liberty National was a mere counter-offer. It would become a binding contract only upon its acceptance by Smith. Moreover, the policy specifically provided it would become effective only upon its acceptance by the insured and the payment of the increased premium. Therefore, because the policy was never accepted by the Smiths, Liberty National was entitled to a directed verdict on this issue; and, likewise, the giving of the challenged charge constitutes error.

Smith’s argument that such charge, even if erroneous, was not prejudicial is also without merit. Because each party is entitled to proper instructions regarding the issues presented, the failure to give a correct charge as to any theory of the ease is reversible error. See Jones v. Blackman, 285 Ala. 684, 228 So.2d 1 (1969); Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731 (1951); and Western Union Telegraph Co. v. Smith, 189 Ala. 534, 66 So. 578 (1914).

Furthermore, this error was not rendered harmless by the jury’s return of a general verdict. Where the verdict is general, but prejudicial error obtains to the court’s instructions to the jury on any theory of recovery, the verdict must be set aside because no determination can be made as to which of several issues the jury relied upon in reaching its verdict. 5A C.J.S. Appeal & Error § 1773(3). See also Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976); and Ford Motor Co. v. Thomas, 285 Ala. 214, 231 So.2d 88 (1970).

In response to Smith’s assertion that the insurer delayed issuance of the policy, Liberty National insists that because the application provided a 60-day period for it to consider and act upon the offer, and it did issue a policy within twenty-one days, no jury question existed. Thus, a directed verdict as to this theory of recovery was proper.

Generally, the proposed insured is justified in assuming that the insurer will exercise reasonable care and diligence in acting upon his application. Barnes, supra. See, generally, 32 A.L.R.2d 487. Ordinarily, the reasonableness of the time within which the insurer acts upon the application is a question for the trier of fact. Indeed, Barnes specifically held that the reasonableness, vel non, of the insurer’s failure to issue the policy within a 30-day period, as required by the binding receipt, was a question for the jury. Whether the 60-day provision is absolute and binding in all cases, we need not decide; and this for the reason that, under the circumstances of this case, we hold, as a matter of law, that the 21-day period in which the company did issue the policy did not constitute an unreasonable delay.

We hold, therefore, that Liberty National was entitled to the directed verdict as to all theories of recovery presented to the jury other than the theory presented in Count 2—misrepresentation.

REVERSED AND REMANDED.

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


text:
    Kenneth CANTRELL, Individually, and Urban Homes of Muscle Shoals, Inc., a corporation v. Rayburn BEVEL. Rayburn BEVEL and Rayburn Bevel Paving & Construction Co. v. Kenneth CANTRELL, etc.
    77-51, 77-51X.
    Supreme Court of Alabama.
    March 24, 1978.
    Ronald P. Thompson, Albertville, for appellant and cross-appellee.
    William D. Jetton, Guntersville, for ap-pellee and cross-appellant.
   PER CURIAM.

On the appeal, the judgment is affirmed. Rule 9(a), ARCP. On the cross appeal, the judgment is affirmed. Rule 28(a)(3), ARAP.

AFFIRMED.

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


text:
    Bennie JOHNSON v. SELMA BOARD OF EDUCATION.
    77-71.
    Supreme Court of Alabama.
    March 24, 1978.

      Carolyn D. Gaines, Chestnut, Sanders & Sanders, Selma, for appellant.
    E. A. Stewart, Selma, for appellee.
   BEATTY, Justice.

This is an appeal by Bennie Johnson (plaintiff) from a summary judgment granted in favor of the Selma City Board of Education (defendant). We reverse and remand.

The plaintiff was employed by the Selma City School System in 1972 to teach physical education at Eastside Junior High School. On April 10, 1975 Mr. Yelder, the Principal of Eastside Junior High School, advised that the plaintiff by letter that he was not recommending that plaintiff’s contract be renewed for the coming school year. Thereafter, Mr. Yelder submitted such a recommendation to the Teacher’s Committee of the Selma City School Board. At its meeting on May 9, 1975 the School Board voted in accord with the recommendations of the Teacher’s Committee not to re-employ the plaintiff for the 1975-76 school year. At that time the plaintiff had not attained continuing service status, that is, tenure status.

The plaintiff was orally notified by both Mr. Yelder and Mr. Pickard, the Superintendent of the Selma City School System, that his contract had not been renewed by the School Board for the coming school year. Pickard also directed Yelder to notify the plaintiff in writing of the School Board’s action. Following this Yelder wrote the following letter and hand delivered it to the plaintiff on May 28,1975, one day prior to the end of the school year 1974-75:

EASTSIDE JUNIOR HIGH SCHOOL
Office of the Principal
SELMA, ALABAMA 36701
May 28, 1975
Mr. Bennie Johnson
Eastside Junior High
Washington Street
Selma, Alabama
Dear Mr. Johnson:
The letter that I wrote you on April 10, 1975, concerning your performance, interest and attitude, in your work here this year has been greatly weakened in that you failed to enter your track team in the track meet which met here on May 10, 1975. You told Reverend Reese and I that you would work with the track team — we have no evidence that you did, and have been further disappointed in your lack of participation.
As Principal of Eastside Junior High School I wish to thank you for the things you did well here, and to say on the other hand that you have not done well enough for me to recommend that you come back next year.
Yours truly,
Dr. W. J. Yelder
/s/ Dr. W. J. Yelder
cc: Mr. J. A. Pickard

Apparently the plaintiff was not employed further by the Selma City School System.

In February, 1977 the plaintiff brought this action against the Selma City Board of Education for reinstatement and $25,000 in back pay. After a hearing on various motions, the trial court granted the defendant’s motion for summary judgment.

The sole issue presented is whether the trial court erred in granting defendant’s motion for summary judgment.

The appellant contends that the trial court erred in granting summary judgment against him because the notice he was given did not accord with Tit. 52, § 361(2), Alabama Code (Supp.1973) (now § 16-24-12, Code of Ala. 1975). The pertinent portion of that section provides:

Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; . (emphasis added)

The plain terms of the statute require that the employing board of education must cause written notice to be given to a nontenured teacher that his contract will not be renewed. That is, written notice must be given under the direction of the Board. Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941). Any oral notification to the teacher that his contract will not be renewed is not sufficient notice under Tit. 52, § 361(2). The purpose of this rule is to insure that teachers have some measure of job security and to allow them freedom from the “vicissitudes of politics” or the likes or dislikes of school administrators. Board of Education v. Baugh, supra. This written proof of contract non-renewal by the school board gives the teacher unequivocal notification that he will need to secure other employment after the school term ends. And as we stated in Baugh the manifest purpose of the statute is to protect teachers hence it should be liberally construed in their favor.

The record discloses that Yelder delivered his letter of May 28th to the appellant and that letter purported to give appellant notice that his contract was not to be renewed. The issue posed by this fact is whether that letter conformed to the required statutory notice by the school board that Johnson’s contract had not been renewed by that board for the following year.

Notwithstanding Yelder’s statement in the letter that “you have not done well enough for me to recommend that you come back next year,” the letter did not give appellant notice that his employment contract was not being renewed by the school board. The plain language of that letter cannot be interpreted to mean that the school board had decided not to renew appellant’s contract for the coming school year. The import of that letter was merely that Yelder, in his capacity as Principal of Eastside Junior High School, was not recommending appellant for continued employment, a recommendation he previously communicated to appellant by a letter in April. The argument that Yelder’s written letter should be considered together with the oral notice appellant received, as we have heretofore stated, falls before the express requirements of Tit. 52, § 361(2). Because Yelder’s letter did not strictly comply with the requirements of Tit. 52, § 361(2) by notifying appellant that the Selma City School Board voted not to renew his contract for the succeeding school year 1975-76, the appellant did not receive statutory notice sufficient to cancel his contract for that year. Brown v. Board of Education of Blount County, 242 Ala. 154, 5 So.2d 629 (1942).

The appellee insists that Yelder’s letter represented substantial compliance with the statute, citing Holcombe v. County Board of Education of Marion County, 242 Ala. 20, 4 So.2d 503 (1941) for that proposition. The Holcombe case held that the board of education’s written order not reviewing a teacher’s contract, even though not recorded in the minutes of the meeting, together with a letter written on behalf of the board notifying the teacher of the board’s action constituted substantial compliance with Tit. 52, § 360 (now § 16-24-12, Code of Ala. 1975). However, the cases are distinguishable because in the Holcombe case a finding of substantial compliance was based upon the board of education’s order and a letter given to the teacher on behalf of the board notifying him of its action which did not renew his contract. Here the letter which the teacher received did not substantially comply with the statute because it did not notify the appellant that the board of education had voted not to renew his contract. There is nothing contained in its terms which in any way suggests that it was written on behalf of the board of education. Therefore, the appellee’s argument is not well taken.

Since this letter could not be construed as the notice mandated by the statute, the defendant has failed to show the absence of a genuine issue on the material fact of notice, and this precludes the entry of a summary judgment. First National Bank of Birmingham v. Culberson, 342 So.2d 347 (Ala.1977).

Accordingly, the judgment of the trial court must be, and is, reversed and remanded.

REVERSED AND REMANDED.

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


text:
    James H. WHIGHAM, Individually, et al. v. TraveLODGE INTERNATIONAL, INC., a corp., et al.
    77-107.
    Supreme Court of Alabama.
    March 24, 1978.
    E. D. McDuffie, McDuffie, Holcombe & Prince, Tuscaloosa, for appellants.
    N. Lee Cooper, Birmingham, Sam M. Phelps, Tuscaloosa, for appellee, Trave-Lodge Intern,, Inc.
   PER CURIAM.

The plaintiffs appealed from an order granting the defendants’ motion for summary judgment.

The facts out of which this litigation arose were summarized by the trial court in another action and approved by this court on appeal. Whigham v. TraveLodge International, Inc., 349 So.2d 1078 (Ala.1977). We, therefore, pretermit another recital of facts.

In this proceeding, the plaintiffs sought damages from the defendants alleging (1) rent due under a lease agreement; (2) breach of a contractual commitment in that lease to pay a mortgage; and (3) conspiratorial fraud committed by the defendants.

In its order granting the defendants’ motion for summary judgment, the trial court observed:

“The pleadings and proceedings in the case of Whigham v. Travelodge International, Inc., et al., Civil Action No. 25561 [the subject of the opinion in Whigham v. TraveLodge, supra] contain the lease agreement in question, the mortgage and the other relevant documents. The content of the lease agreement is not disputed by the plaintiff and the fact that the foreclosure occurred is also undisputed. Therefore, the court finds that no genuine issue of material fact exists and that as a matter of law the lease has been extinguished by the doctrine of merger. . The court thus finds that defendants are entitled to judgment as a matter of law on the plaintiffs’ first theory of recovery.
“The theories of recovery listed as (2) and (3) above were advanced in the previous case and were expressly ruled upon by this court and affirmed by the Alabama Supreme Court. The court is, therefore, of the opinion that these claims áre barred by the doctrine of res judicata or collateral estoppel.”

We affirm. Every theory advanced by the plaintiffs in this case was advanced in the prior litigation and the judgment in favor of defendants was affirmed by this court. We affirmed the trial court’s holding that the plaintiff’s act of foreclosure operated to destroy the lease; and, even if it had not, the interests of both the lessors and lessees vested in the plaintiff as the purchaser at the foreclosure sale. He cannot, therefore, recover on the lease.

The plaintiffs assert that the conspiracy theory was not advanced in that litigation. However, it was treated as having been advanced by the trial court which expressly ruled on it. The following was quoted from the trial court’s order in Whigham v. TraveLodge, supra:

“ ‘In his original complaint, the plaintiff alleged “that the Estate of Bessie A. Whigham, Deceased, has been fraudulently deprived of $180,000.00.” At the pre-trial conference plaintiff’s counsel informed the Court that the plaintiff no longer alleged fraud on the part of the defendants. Therefore, in his amended complaint, the plaintiff struck the word “fraudulently” from the above allegation. However, the same amended complaint contains the allegation that “while both of [the Whighams] were aged and infirm they were approached by Mr. Loyd Baker, one of the Defendants in this cause, and he persuaded them to agree that the mortgage indebtedness on said real property ... be refinanced. . . .” Moreover, counsel for plaintiff in the brief submitted in lieu of closing argument has contended that “[i]t is even probable that Defendants may be liable for a criminal prosecution for the acts that they have done in this matter as a conspiracy to defraud Plaintiffs, . and, certainly, in a Court of Equity they should not be relieved of their liability created by their own acts and conduct which amount to fraud.” For these reasons, the Court understands the plaintiff as urging fraudulent deprivation of property in connection with the August, 1973, mortgage financing or some other species of fraud as a theory of recovery and therefore addresses this theory.
“ ‘Under the evidence presented at trial, this Court is compelled to find that the consent of the Whighams to the August 1973, mortgage financing was not obtained by means of fraud, misrepresentation, duress, coercion, overreaching or any other improper means and that no other act or omission on the part of the defendants during the entire course of their dealings with the Whighams relative to the August 1973, mortgage furnishes the basis for a claim of fraud, misrepresentation, duress, coercion, overreaching or other improper conduct on the part of the defendants. Accordingly, plaintiff’s theory of fraudulent conduct as a basis of recovery cannot be sustained.
. .’” (349 So.2d at 1081 and 1082)

The record affirmatively discloses that the issues raised in this case were litigated in the earlier proceeding between the same parties. Therefore, the judgment appealed from is affirmed.

AFFIRMED.

MADDOX, JONES, SHORES, EMBRY and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Grady LETSON v. GADSDEN CIVIL SERVICE BOARD and the City of Gadsden.
    Civ. 1348.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1978.
    Rehearing Denied Feb. 8, 1978.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellant.
    Kathleen M. Warren, Gadsden, for appel-lees.
   WRIGHT, Presiding Judge.

The Gadsden Civil Service Board made promotions within the Fire Department of the City of Gadsden on May 17, 1976. Among such promotions was one from Lieutenant to Captain. Plaintiff Letson was prior to May 17, 1976, a Lieutenant in said department. He was not promoted to Captain on May 17, 1976. Letson brought this action in the Circuit Court of Etowah County, asking that the promotions be set aside as void because the rules of the Civil Service Board under which the promotions were made were contrary to law.

Motion for summary judgment in favor of defendants, City of Gadsden and the Gadsden Civil Service Board, was granted by the court on October 13, 1977. Letson appeals.

The issue is whether the rule adopted by the Civil Service Board on January 1, 1974, providing that examinations for promotions within the fire department be given by the Fire Chief and those passing be certified to the Board is contrary to law. We affirm the judgment of the trial court.

The contention of Letson is that the rule adopted by the Board is contrary to the provisions of Appendix, § 1203(9), Code of Alabama (1940) (Recomp.1958). In order to place Section 1203(9) in its proper perspective, we set out all of the relevant statutes dealing with employment and promotions of fire and police personnel of the City of Gadsden as follows:

“§ 1203(7) . . . The civil service board shall make rules and regulations to carry out the purpose of this subdivision, and for examinations, appointments and removals in accordance with its provisions and the board may, from time to time, make changes in the existing rules. The chief of police and the chief of the fire department shall, from the membership of their respective departments, recommend for promotion such person or persons as the occasion may call for to fill any vacancy or vacancies that may occur in said respective departments, and all such vacancies shall be filled and all such promotions shall be made by the civil service board. The board may make rules and regulations relating to the eligibility for promotion. .
“§ 1203(8) . . .All applicants for a place or position on the police force or fire department, as the case may be, shall file their application -in writing with the civil service board, said applications to be on the blank forms furnished by the board, and all applicants must be subject to examination, which shall be public, competitive, and open to all citizens of the United States, with specified limitations as to age, residence, health, habits, and moral character. . . .
“§ 1203(9) . . . The board shall control all examinations, and whenever an examination is to take place, shall conduct such examination. .
“§ 1203(10) . . The chief of police . and the chief of the fire department . . . shall notify the civil service board of vacancies in the ranks of patrolmen or firemen, respectively, and the board shall furnish the respective chief with the name and address, or names and addresses, of the candidate or candidates standing highest on the eligible list, and same shall receive the appointment or appointments to fill such vacancy or vacancies. . . . ” App., Code of Alabama (1940) (Recomp.1958).

The rule under attack by Lt. Letson was adopted by the Board under authority of Section 1203(7) above. It is as follows:

“Written Examination — shall be given by the Chief of the Department with the questions being taken from relative Fire Department Manuals furnished to each of the six (6) Lieutenants a minimum of ninety (90) days prior to examination date. A score of 70% shall be considered passing. Credit for written exam is based on passing and not on high score. The Chief of the Department shall be directly responsible for the grading of exam and required to furnish test and results to the Civil Service Board on request. Eligibility on the written examination shall be valid for one (1) calendar year. Ninety (90) days after expiration a written examination shall be given to reestablish a current eligibility roster. The six (6) Lieutenants with the longest time of service on the Gadsden Fire Department shall be required to take exam unless Lieutenant wishes to excuse himself.”

Regulations adopted by a civil service board have the force and effect of law unless they are inconsistent with their statutory authorization or the principles of a non-partisan merit system. City of Tuscaloosa v. Marcum, 283 Ala. 440, 218 So.2d 254 (1969).

Letson argues that even though Section 1203(7) empowers the Board to make regulations relating to eligibility of personnel for promotion, delegating authority to the Chief to give examinations leading to recommendation for promotion is inconsistent with Section 1203(9).

In construing a statute it is to be considered as a whole and its related sections in pari materia, if possible. State v. Jones, 289 Ala. 353, 267 So.2d 427 (1972); Smith v. Smith, 266 Ala. 118, 94 So.2d 863 (1957); Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275, cert. denied, 287 Ala. 725, 248 So.2d 284 (1971). Section 1203(9) is sandwiched between two sections which are completely related to applicants for first employment as firemen or policemen. The examinations referred to in that section clearly are those to be given to applicants for employment. The second sentence of Section 1203(7) deals with the recommendation by the chiefs of the fire and police departments of presently employed members of the departments for promotion. The third sentence of that section directly grants authority to the Board to make rules or regulations relating to eligibility of members for recommendation for promotion. There is stated in the statute neither direction nor restriction as to the rules or regulations which the Board may adopt. We perceive no inconsistency with any section of the statute, public policy or the principles of a non-partisan merit system in the regulation of the Board, nor are we cited to any law which tends to the contrary.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex Parte Grady LETSON.
    77-327.
    Supreme Court of Alabama.
    March 31, 1978.
   EMBRY, Justice.

WRIT DENIED.

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