text:
    Stella Cook Cutrer SHACKELFORD et al. v. E. Houston BROWN et al.
    77-296.
    Supreme Court of Alabama.
    Aug. 18, 1978.

      James M. Tingle, Birmingham, for appellants, Stella Cook Cutrer Shackelford and John Andrew Shackelford, minors.
    Lucien D. Gardner, Jr. and E. T. Brown, Jr., Birmingham, for appellees, E. Houston Brown and The First Nat. Bank of Birmingham as Trustees of the Trust Under Subparagraph (f) of Item XIV of the Will of Robert Randolph Meyer, deceased.
    J. Michael Rediker, Birmingham, of Rit-chie, Rediker & Warren, Birmingham, and Meade Whitaker, Washington, D. C., of Hemmendinger, Whitaker & Kennedy, Washington, D. C., for appellees, Jane Cutrer Meyer, Nancy Cook Meyer and Stella Gregg Meyer.
   EMBRY, Justice.

The issue on this appeal is the proper construction of a provision in a testamentary trust in the will of Robert Randolph Meyer, deceased. The trust was established primarily for the benefit of the testator’s only son, John E. Meyer. It was terminated on 1 January 1977 by the death of John E. Meyer, who was survived by his three children and two grandchildren. The corpus of the trust was to be distributed according to the following provision:

“Upon the death of my said son, JOHN E. MEYER, leaving any descendant of him then living, the trustees, after first paying the expenses of his last illness and proper burial, shall transfer and pay over to his descendants then living, in equal shares per stirpes, the property then constituting said separate trust estate; PROVIDED, HOWEVER, that if the youngest descendant of my said son then living shall not at said time have attained the age of twenty-one years, then though the share of each descendant in said separate trust estate shall be deemed then to have vested in him or her the trustees shall continue to hold the same in trust for him or her until said youngest descendant shall attain said age of twenty-one years, using and applying for the support, education and comfort of each such descendant such part of the net income from his or her said share of said separate trust estate and of the principal thereof as the trustees deem necessary or desirable for said purposes.”

E. Houston Brown and First National Bank of Birmingham, surviving trustees, brought this action, for construction, to determine whether a per stirpes distribution of the corpus of the trust should include not only the children of John but also his two grandchildren as well. John had no children who pre-deceased him.

The trial court held the clause mandated a distribution which excluded the grandchildren. We affirm.

By guardian ad litem, the grandchildren appeal. They claim the words “descendants then living in equal shares” control, and call for per capita distribution. They contend the testator would have used the words “children then living”' had he meant to exclude his grandchildren. We cannot agree. The word “descendants” is a broad term. It encompasses all offspring or lineal descendants to the most remote degree. Wright v. City of Tuscaloosa, 236 Ala. 374, 182 So. 72 (1938); Black’s Law Dictionary (4th Ed. 1968), p. 530. “Children” are “descendants.” The qualifying phrase “then living” is one of limitation, as is obvious. Among other contingencies which the testator clearly meant to cover was the possibility of his son, John, dying with no living children, but leaving surviving grandchildren or great grandchildren. In this case the testator has gone further and made his intention abundantly clear by adding the limiting phrase “per stirpes” to provide the manner of distribution to living descendants. A devise to “issue” refers to descendants then living and mandates a per stirpes distribution. Reynolds v. Love, 191 Ala. 218, 68 So. 27 (1915). This is equally true of a devise to “descendants.”

The addition of the phrase “in equal shares” does not show an intent to provide for per capita distribution. The words emphasize the manner of distribution to those who receive per stirpes. That is, those in the same generation are to take equal shares. See Lee v. Moxley, 286 Ala. 134, 237 So.2d 656. A statutory example of this limitation is § 43-3-1(1), Code 1975, which mandates a per stirpes distribution, but uses the words “to the children of the intestate, or their descendants, in equal parts.” (emphasis added).

The proper construction of the provision under consideration was given it by the trial court. The per stirpes distribution excludes the grandchildren because their mother, the ancestor through whom they would immediately take, if deceased, is living. See generally, Stallworth v. Stallworth, 29 Ala. 76 (1856). Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Jewel M. WALLACE et al., etc. v. Anita BURLESON et al., etc.
    77-413.
    Supreme Court of Alabama.
    Aug. 18, 1978.

      James M. Fullan, Jr., Birmingham, for appellants.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for appellees.
   FAULKNER, Justice.

A bill for declaratory judgment filed by the Jefferson County Board of Cosmetological Examiners was dismissed by the Montgomery County Circuit Court for failure to state a claim upon which relief can be granted. We affirm.

Plaintiffs are members of the Jefferson County Board of Cosmetological Examiners which was established by Code of Ala., Tit. 62, §§ 279-289 (Recomp.1958), a comprehensive act regulating the practice of cosmetology in Jefferson County. On May 23,1977, the Governor approved Act No. 668 which purports to regulate the practice of cosmetology in all counties of the state. The 1977 Act includes a provision which states:

“This Act shall become effective in all counties unless within 6 months after the effective date of this Act a writing subscribed to by the Judge of Probate and the County governing body requesting not to come under the provisions of this Act and upon the adoption of a resolution by a majority vote of the board of revenue, court of county commissioners, or other like governing body of the county, whereby the county elects not to come under the provisions of said Act.” Act No. 668, § 38%.

The governing body of Jefferson County advised plaintiffs that they would not pass a resolution preventing Jefferson County from coming under the 1977 Act. Plaintiffs then filed the instant bill alleging that the 1977 Act did not abolish by implication the Jefferson County Board of Cosmetological Examiners and asking the Circuit Court to so declare. Defendants, members of the Alabama State Board of Cosmetology, the entity created by the 1977 Act, filed a motion to dismiss under ARCP 12(b)(6) premised upon lack of a justiciable controversy. This motion was granted and plaintiffs appealed.

Declaratory judgments are governed by §§ 6-6-220 — 6-6-232, Code of Ala.1975, and ARCP 57. Motions to dismiss are rarely appropriate in declaratory judgment proceedings. Grant v. West Point Manufacturing Co., 272 Ala. 280, 130 So.2d 336 (1961). Such a motion does, however, serve one purpose, that of determining whether the bill states the substance of a bona fide justiciable controversy which should be settled. Moore v. City of Fairhope, 275 Ala. 506, 156 So.2d 366 (1963). If no justiciable controversy exists when suit is commenced the trial court has no jurisdiction. In determining whether or not a jus-ticiable controversy exists it must be kept in mind that, “ ‘The declaratory judgment statutes do not empower courts to decide moot questions, abstract propositions or to give advisory opinions, however convenient it might be to have the questions decided for the government of future cases.’ ” State ex rel. Baxley v. Johnson, 293 Ala. 69, 300 So.2d 106 (1974). “Allegations which merely show that the plaintiff anticipates such a [justiciable] controversy may arise are not sufficient to invite judicial declaration of rights.” Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So.2d 424 (1975).

We are of the opinion that the case at bar does not present a justiciable controversy and, consequently, the motion to dismiss was properly granted. There is no indication in the record or even the briefs that any action has been or will be taken in derogation of plaintiff’s responsibilities under Tit. 62, §§ 279-289. Plaintiffs are simply concerned that their positions may be abrogated in the future and in effect ask us for an advisory opinion as to their status.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    The JAFFE CORPORATION, INC. v. The BOARD OF ADJUSTMENT OF CITY OF SHEFFIELD.
    Civ. 1084.
    Court of Civil Appeals of Alabama.
    March 9, 1977.
    Rehearing Denied April 6, 1977.

      B. T. Gardner, Jr., Tuscumbia, for appellant.
    Vincent McAlister, Sheffield, for appel-lee.
   HOLMES, Judge.

This is an appeal by the Jaffe Corporation, Inc., from a decree of the Circuit Court of Colbert County holding that Jaffe was operating a junkyard in violation of the zoning ordinances of Sheffield, Alabama.

On appeal, the corporation contends that the ordinance’s definition of a junkyard is unconstitutionally vague. The corporation also contends that its business does not fall with the definition of a junkyard enumerated by the ordinance. We disagree with both contentions.

This case was originally heard before the Building Inspector of the City of Sheffield pursuant to a petition filed by the residents of an R-l residential district of that city. Their petition alleged that the corporation was violating a city ordinance by operating a junkyard in an M-l district which is adjacent to the subdivision in which they reside. An M-l district is a “Manufacturing District; Light Industry.” Junkyards are excluded therefrom. The zoning ordinance defines a junkyard as:

“Any lot or parcel of land on which is kept, stored, bought or sold articles commonly known as junk, including scrap paper, scrap metal, and used automobile bodies and parts.”

The building inspector found that the Jaffe Corporation was not utilizing its property as a junkyard.

The residents appealed this finding to the Board of Adjustment of Sheffield. On June 19, 1975, a hearing was conducted by the Board on the matter. Both the residents and the corporation were represented at this meeting. On July 10, 1975, the Board reversed the finding of the building inspector and held that the corporation was operating a junkyard in violation of the Sheffield zoning ordinance. The corporation was enjoined from future operation of a junkyard on the premises.

On July 25, 1975, pursuant to Tit. 37, § 783, Code of Alabama 1940, as amended, the corporation through able counsel filed written notice of appeal from the Board’s order in the Circuit Court of Colbert County-

Among other grounds, this notice of appeal set forth as grounds therefor that:

“(4) No proper notice of the pendency of said ‘notice of appeal’ [to the Board of the Adjustment meeting] (Exhibit ‘B’) was given to Jaffe.
“(5) Jaffee was not a party to the alleged appeal (Exhibit ‘B’) complained of and purportedly appealed from a determination and decision of the Building Inspector of the City of Sheffield, Alabama and is not bound by or obligated to comply with any finding of fact or order contained in Exhibit ‘A’ [Order of the Board of Adjustment of Sheffield].
“(6) Procedural due process as required by the Constitutions of the United States of America and the State of Alabama was not afforded to Jaffe.”

A pretrial conference was held on April 14, 1976. The pretrial order issued pursuant thereto listed under a caption “positions of the parties,” among others, the above quoted assertions by the corporation.

Trial was had in the Circuit Court of Colbert County on April 22,1976. Evidence adduced therein reveals the following:

The property in question is located on the Tennessee River in Sheffield, Alabama. Prior to the Jaffe Corporation’s operations thereon, Tennessee Valley Sand and Gravel Company used the property as a terminal or dock facility. Sand, gravel, coal, steel, various ores, aluminum slag, aluminum ingots, steel beams, and pig iron passed through the facility while operated by Tennessee Valley. These items were transferred to and from barges by cranes to which either a bucket or an electro magnet, depending upon the nature of items to be moved, was attached. Material from the barges was ultimately transferred to trucks and rail.road cars and vice versa. Items remained in the open on the property for varying lengths of time awaiting pick up by the next mode of carrier.

The Jaffe Corporation has continued the terminal facility operation since it leased the property from Tennessee Sand and Gravel Company in November of 1974. As did the prior operator of the facility, the Jaffe Corporation uses cranes to load and unload barges, trucks, and railroad cars. The commodities handled by the Jaffe Corporation include steel coils, manganese ore, steel piling, steel beams, air pollution equipment, and at least one item not handled by its predecessor — scrap metal. Approximately 25% of the tonnage passing through the facility from November of 1974 until the time of trial consisted of scrap metal.

The president of the Jaffe Corporation, Ralph Jaffe, testified that “peddler’s scrap” is a term commonly used in the junkyard business. He stated that it is purchased from an individual or “peddler” and consists of any type of ferrous or nonferrous scrap including tin, copper, zinc, old automobiles, and other items such as old paper, rags, and glass. He stated that the corporation does not purchase such material from individuals. Rather, the corporation purchases from scrap processing plants, junk dealers, brokers (who themselves purchase from junk dealers and scrap plants), plants whose by-products constitute scrap, and certain governmental agencies. He termed the material thus procured “processed or prepared scrap.”

Prepared scrap may be classified into approximately 100 different categories. According to the president, the corporation bought approximately 5 different types: prepared foundry steel, prepared number 2 steel, prepared number 1 steel, cast iron, and unclean motor blocks. He stated these categories of items were purchased in truckload or freight car load quantities and stored in piles according to their classification until there was sufficient amount to contract with a consuming mill to purchase. He said the minimum barge freight charge assessed for the shipment of scrap to the consuming mill was 1,150 tons. Thus, the various types of scrap metal remain in piles on the corporation’s property until such time as approximately 1,150 tons have accumulated for shipment to a consuming mill.

Frequently, these piles must be relocated on the property which necessitates handling the scrap several times. As previously stated, the scrap is moved by cranes which have electromagnets. The cranes pick up 1,000 to 2,000 pounds of scrap per lift. The metal is placed in the piles by dropping it from whatever height it has been raised to by the crane.

On cross examination, the president disclosed that wheel rims and unclean motor blocks are also piled on the premises for shipment to consuming mills for recycling. He stated that the taking of these items from discarded vehicles constituted all the “processing” necessary to render them suitable for recycling as basic components in metal manufacturing.

Jaffe also testified that the corporation cuts barges into pieces and sells the “barge scrap.” The corporation procures the barge scrap by at least two methods. One method consists of pulling a barge from the river and cutting a twenty foot section from the remainder of the barge with a propane torch. The other method consists of having sections of a barge delivered to the dock by an individual with whom the corporation has specifically contracted for this purpose. The individual obtains these barge sections by raising sunken barges from the bottom of the Tennessee River. The sunken barges must be broken into sections to allow removal from the river bottom. Hence, according to the president of the corporation, this barge scrap is semi-processed when received by the corporation. Jaffe Corporation employees further process it by cutting it into smaller pieces at the dock where delivered.

Ralph Jaffe further testified that he owned two “partial junkyards and scrap metal processing plants” in Birmingham, Alabama. He distinguished the Jaffe Corporation’s Sheffield operation from a junkyard by stating that a junkyard bought all types of material — steel, paper, rags, bottles, and primarily junk automobiles from peddlers. He stated that the junkyard salvaged the usable items so purchased, e. g., car radios, tires, etc., arid resold them for their principal use and took the remaining junk and converted it by utilization of an automobile shredder, a bailing press, or a shearer into a form that was usable as a raw material in the steel making process. He emphasized that the corporation does not salvage any item for resale in its principal use. For example, the engine blocks on the corporation’s premises were not sold to be reinstalled in automobiles, but were to be melted as an ingredient in steel manufacturing. Jaffe likened the sale of the scrap to that of a commodity, i. e., grain, salt, etc., for usage as a raw.material in a manufacturing process.

Subsequent to the trial and prior to the rendition of the trial court’s decree, the parties filed briefs to assist the court in reaching its decision. Appellant-corporation’s brief failed to question the constitutionality of the ordinance which defined “junkyard.”

On June 14,1976, the trial court rendered its decision wherein it found that the keeping and storage of scrap metal and used automobile parts and the cutting up of wood and metal barges constituted the operating of a junkyard within the meaning of the Sheffield ordinance. The decree stated that:

“[T]he Jaffe Corporation, Inc. is prohibited from using or continuing to use the property in question in this cause, which is located entirely in an M-l zone, for the storage of processed used metal or as a junk yard, and also from using said property for the cutting up and rendering of steel or wood and steel barges for their metal. However, the Jaffee Corporation, Inc. shall be allowed 30 days from this date to remove from said premises any metal thereon resulting from the aforesaid two mentioned types of operations which are prohibited under this zoning ordinance. . . ”

On July 12, 1976, Jaffe presented a motion for a new trial, asserting as grounds therefor:

“1. That the verdict or decision is not sustained by the great preponderance of the evidence.
“2. That the verdict or decision is contrary to the law, in that the cutting up of steel barges with the use of an acetylene torch, prior to shipment of said scrap metal by barge, does not constitute a junkyard under the city ordinance prohibiting the operation of a junkyard in an M-l zone.”

This motion was denied by the trial court on August 4, 1976; the corporation thereafter prosecuted this appeal.

I

As previously stated, the corporation contends the zoning ordinance’s definition of junkyard is unconstitutionally vague. The corporation is precluded from raising this issue on appeal. It is axiomatic in Alabama that issues not raised in the trial court will not be considered for the first time on appeal. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (1975); 2 Ala.Dig. Appeal & Error &wkey;<s=>169, 170(2). To preserve an issue for appeal, a ruling of the trial court must have been invoked with respect thereto. Cox v. Howard Hall Company, 289 Ala. 35, 265 So.2d 580 (1972); Talley v. A & M Construction Company, 284 Ala. 371, 225 So.2d 359 (1969), cert. denied, 397 U.S. 995, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970); Smith v. State, 280 Ala. 241, 192 So.2d 443 (1966); Head v. Triangle Construction Co., 274 Ala. 519, 150 So.2d 389 (1963); Clancy Lumber Co. v. Howell, 260 Ala. 243, 70 So.2d 239 (1954).

The corporation contends the facts herein fall within an exception to the above principles. According to the corporation, this court may address the issue concerning the constitutionality of the ordinance by virtue of the holding in State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56 (1916). In that case the constitutionality of a statute had been raised by demurrer in the trial court and decided adversely to appellants. The trial court’s ruling had been affirmed by the Supreme Court of Alabama. In petition for rehearing to the supreme court the appellants raised previously unasserted grounds for holding the statute unconstitutional. The supreme court allowed the constitutionality of the statute to be challenged on the theretofore unpresented argument, thus reversing its original opinion and declaring the statute unconstitutional.

“The [original] petition under consideration brought into question the constitutional validity of the act . . ., but the reasons therein assigned for the assertion of its invalidity were not good . since the general allegation of the unconstitutionality of the act was efficient to invoke and to have justified a ruling, if made, of the court below that the act was invalid, not for a reason alleged, but on a ground or for a reason not particularly specified in the petition, the judgment now rendered cannot be affirmed here when, even for the first time on application for rehearing, the complaining party has fully met the burden of advising the court of the particular well-founded reason or ground for declaring the act invalid. . . . ” (State ex rel. Knox v. Dillard, supra, 196 Ala. at 549, 72 So. at 60)

The corporation states that since the constitutional question was raised in both the petition and pretrial order below, the court may address that issue. We disagree.

First here, contrary to the facts in Dillard, the record fails to disclose that the constitutionality of the ordinance was challenged in the lower court. The corporation made no specific allegation of vagueness in its brief filed with the lower court, during the trial, or in its motion for a new trial. The corporation’s only reference below to constitutional rights was its assertion, among seventeen other grounds for appeal from the Board of Adjustment to the circuit court, that it was denied “procedural due process.” Read in context, as set forth above, it is obvious to this court that that statement referred to the corporation’s alleged lack of notice to the hearing had before the Board of Adjustment — not to the constitutionality of the ordinance.

Moreover, even if the allegation of denial of procedural due process did in fact question the constitutionality of the ordinance, this case would not be governed by Dillard, supra.

In Dillard, the sole issue before the lower court concerned the constitutionality of the statute. Although the specific basis on which the statute was ultimately declared unconstitutional was not set forth until the petition for rehearing was filed, the theory of the case as presented in both the trial and appellate courts remained constant. Here, appellant-corporation seeks review on a different theory than presented to the trial court. As stated by the Supreme Court of Alabama in Sealy v. McElroy, 288 Ala. 93, 98, 257 So.2d 340, 344 (1972):

“[A] case will not be reviewed . on a theory different from that on which the trial was had. . . . ”

Other distinguishing facts preclude application of the Dillard exception to the facts of this case. In Dillard, the constitutional infirmity related to failure of the legislature to enact the law as prescribed by constitutional procedures. To have affirmed its original opinion and the decree of the trial court, the supreme court stated:

“[Tjhis court would be placed in the wholly indefensible attitude of affirming a judgment that this court now is brought to know cannot be sustained because the essential basis thereof is an enactment that never became a law. . . . ” (196 Ala. at 549, 72 So. at 60)

This court cannot equate an allegation of vagueness with the proposition that a law on which a judgment is premised was never enacted.

Additionally, we would note that the facts herein do not constitute “matters of public concern,” existent in Dillard, such as to warrant treatment by this court of an issue not previously raised in the trial court. Talley and Smith, supra; B. F. Goodrich Company v. Butler, 56 Ala.App. 635, 324 So.2d 776 (1975).

For appellant-corporation’s benefit, we do note that even had the issue been preserved for appeal, the conclusion we reach herein would remain unaltered, for we perceive no vagueness in the ordinance as applied to the circumstances of this case. The ordinance states that a junkyard is any lot or parcel on which is kept, stored, bought, or sold items commonly known as junk. It then specifies specific representative items deemed to constitute “junk.”

A presumption of validity attaches to a zoning ordinance.

“We must be certain that the ordinance is so plainly and palpably inadequate and incomplete as to be convinced beyond reasonable doubt that it offends the constitution or we will not strike it down.” (Walls v. City of Guntersville, 253 Ala. 480, 485, 45 So.2d 468, 471 (1950))

See COME v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972).

We cannot say the ordinance as applied in this instance is so “palpably inadequate and incomplete” as to warrant a decision by this court holding it invalid. While some degree of ambiguity inheres in any statute by virtue of limitations attributable to the written word, we fail to comprehend any inspe-cificity in the ordinance with regard to language which, when read in its entirety, forbids the keeping or storage of scrap iron upon the property. We consider the ordinance to give reasonable guidance to the corporation with regard to what activities may be conducted upon its premises. Additionally, we note that the validity of a similar definition of junkyard has been sustained in another jurisdiction against the very argument herein asserted. Board of County Commissioners of County of Boulder v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972). But see City of Kewanee v. Riverside Industrial Materials Co., 21 Ill.App.2d 416, 158 N.E.2d 86 (1959); City of Watseka v. Blatt, 320 Ill.App. 191, 50 N.E.2d 589 (1943).

II

The corporation contends its operation with respect to the processed scrap metal and the cutting up of barges does not constitute a junkyard within the meaning of the ordinance. We differ as to this conclusion.

The ordinance’s definition of junkyard has been set forth, supra. It states that the keeping or storing or scrap metal upon premises renders those premises a junkyard. Approximately 25% of the tonnage which has been handled by the Jaffe Corporation since it leased the property in question has consisted of scrap metal. The scrap remains on the premises for varying lengths of time until such time as it is loaded into barges. Hence, clearly scrap metal is kept or stored on the property in question, which activity constitutes the operation of a junkyard within the plain terms of the ordinance.

The corporation, in an excellent brief, advances numerous arguments and cites a number of cases in support of its contention. It states the type of activities it conducts have on other occasions been held not to constitute the operation of a junkyard. Eastern Scrap & Salvage Corp. v. Burns, 5 N.J.Super. 616, 68 A.2d 663 (1949); Grace Iron & Steel Corporation v. Ackerman, 123 N.J.L. 54, 7 A.2d 820 (1939); City of Chicago v. Iroquois Steel & Iron Co., 284 Ill.App. 561, 1 N.E.2d 241 (1936). The cases so hold. However, they may be distinguished from the circumstances herein. In Grace, supra, the ordinance failed to define the term “junkyard.” The court,- citing Webster’s International Dictionary, declared the term “junk” to denote: “old iron, glass, paper, cordage, or other waste which may be treated so as to be used again in some form; also, any old or discarded material, as metal, paper, rags, etc., and, in general, anything that is regarded as worthless or merely trash.” (Grace Iron & Steel Corporation v. Ackerman, supra, 7 A.2d at 821). No doubt, the preceding items do constitute junk. (The ordinance’s definition of junk in Eastern, supra, corresponds to that given by. the court in Grace, supra.) However, the Circuit Court of Colbert County also had before it an ordinance which expanded that definition. The ordinance specifically declared that premises on which scrap metal was kept or stored constituted a junkyard.

Viewed in context of the zoning ordinance of which it is a part, we believe the trial court correctly determined that the ordinance contemplates the banning of the type of operations conducted by the corporation. The district in which the property is located is termed “light industrial.” It is adjacent to a residential area. The zoning ordinance of Sheffield permits junkyards in the M-2 “heavy industry” districts. The shielding of residential areas from the loud noises necessarily associated with the movement and creation of large quantities of scrap is a purpose of the ordinance, and the construction given the ordinance by the trial court comports with the zoning scheme.

In Iroquois, supra, an operation similar to that of the Jaffe Corporation was also held not to constitute a junkyard, but no definition of junkyard was contained in the ordinance. Moreover, the determination of whether the activity constituted a junkyard was related to ascertaining whether its operator was required to obtain a license for that activity. In stating the activity did not constitute a junkyard, the court, quoting from West Side Metal Refining Co. v. City of Chicago, 140 Ill.App. 599, 602 (1908), stated:

“ ‘The creating of ordinances such as the one under discussion is an exercise by the city council of the police power, and such ordinances are enacted because of the likelihood, grounded on experience, that junk may have been stolen or pilfered, and for protection against such larcenies the traffic is regulated by ordinance; and as said in City of New York v. Vandewater, 113 App.Div. 456, 99 N.Y.S. 306; so we say: “It seems clear that the general character and scope of the business of the defendant does not fall within the description of a dealer in junk. There is a radical difference between the buyer of great masses of metal weighing tons at a time * * * and one who may buy old bottles, scraps or pieces of metal, slush, old rope and the like, which might readily be pilfered or stolen and carried away secretly to be sold by the culprit. It is the business of this character which is to be licensed.’ ”

The court, quoting from City of Chicago v. Northern Paper Stock Co., 337 Ill. 194, 168 N.E. 884 (1929), also said:

“ ‘The reasons requiring junk stores to obtain licenses do not apply to a business such as is conducted by the appellant, and that business does not come within the grant of power to a city to license junk stores and yards.’ ” (City of Chicago v. Iroquois Steel & Iron Co., 1 N.E.2d at 243)

The opinion exemplifies the point we above emphasized: that the term “junkyard” is to be interpreted in a manner consistent with .the overall scheme in which the definition is found. In context, we deem the ordinance to have been correctly applied by the trial court in this instance.

The corporation also contends the material retained on its property — the “processed or prepared scrap” — does not constitute junk within the meaning of the ordinance. Although Ralph Jaffe testified that the breaking of sunken barges into smaller pieces and the removal of engine blocks and wheel rims from vehicles constituted processing, this court cannot conclude that such operations place these items without the ordinance’s provision of “scrap metal.” We note that the record contains pictures of the scrap retained on the corporation’s property. Observance of these pictures does not convince us that the material in question on the premises does not constitute junk.

The corporation also states the scrap was not “stored” on the lot. It states that the term “storage” carries with it a sense of permanence and that the mere temporary placement of the scrap on the premises while awaiting shipment to consuming mills does not constitute storage within the meaning of the ordinance. The corporation insists this case is within the scope of the holding in New York Central Railroad Company v. Ridgefield, 84 N.J.Super. 85, 201 A.2d 67 (1964). In the Ridge-field decision, the court held that the temporary placement of new automobiles for a few days in a railroad yard during the process of unloading them from freight cars and reloading them on highway carriers for continued shipment was not violative of an ordinance prohibiting the outside storage of new automobiles. We do not deem that decision to be governing under the circumstances herein.

The record reveals that scrap remains on the premises fór more than just a few days. Ralph, Jaffe testified that space limitations require that the scrap be handled “several times” in order to relocate it on the property. We doubt that such relocation would be required were the scrap only on the property a few days. Additionally, contrary to the automobiles in Ridgefield, supra, the placement of the scrap on the Jaffe Corporation’s property is not merely an interlude in shipment. It is not predestined for shipment to a given point upon arrival at the Jaffe property. The scrap accumulates until sufficient quantity is available for the corporation to contract with a consuming mill for shipment thereto.

Moreover, even if the scrap is not stored on the property, it is certainly “kept” there within the meaning of the statute.

We find no error in the decision below.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    In re the JAFFE CORPORATION, INC. v. The BOARD OF ADJUSTMENT OF the CITY OF SHEFFIELD, Alabama, et al. Ex parte the Jaffe Corporation, Inc.
    SC 2512.
    Supreme Court of Alabama.
    July 14, 1978.

      B. T. Gardner, Jr., Tuscumbia, for petitioner.
    Vincent McAlister, Sheffield, for respondents.
   BEATTY, Justice.

Writ quashed as improvidently granted.

WRIT QUASHED.

All the Justices concur, except EMBRY, J., not sitting.


author: BRADLEY, Judge.

text:
    FLORENCE ENAMELING CO., INC. v. Melvin JONES.
    Civ. 1381.
    Court of Civil Appeals of Alabama.
    May 10, 1978.
    Rehearing Denied June 21, 1978.

      Michael B. Maddox and Luke E. Alexander of Guin, Bouldin, Porch & Maddox, Rus-sellville, for appellant.
    Ernest N. Blasingame, Jr., of Potts, Young & Blasingame, Florence, for appel-lee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Appellee, Jones, sought compensation under the Alabama Workmen’s Compensation Act for permanent and total disability as well as medical expenses incurred as a result of a job-related back injury. After a trial was held, judgment was rendered in favor of Jones. Thereafter, appellant, Florence Enameling Company, filed a petition for writ of certiorari with this court seeking a review of that judgment.

The first issue for our review concerns the assertion by Florence Enameling Company that the trial court failed to make a finding of fact in regard to whether Jones suffered a permanent partial loss of ability to earn. Florence Enameling Company contends that the language in the trial court’s judgment which concluded that Melvin Jones suffered “an 80 percent impairment of earning capacity” constituted a reversible error. Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973) (reversing a circuit court for its failure to find in its judgment “a permanent partial loss of ability to earn”). We disagree.

Our cases have held that a finding of a decreased ability to earn as a result of a compensable injury is required in order to affirm the trial court’s judgment in a workmen’s compensation case. Brooks v. Crimson Homes, Inc., supra; B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. den., 287 Ala. 726, 253 So.2d 45, 46 (1971). In the instant case the trial court determined that Jones’ ability to earn a living had been decreased by eighty percent as a result of his injury. Consequently, we do not believe that the trial court’s failure to use the words “permanent partial” in the statement of its finding that Jones had suffered an eighty percent impairment of earning capacity necessitates reversal of the court’s judgment.

This view is supported by a careful examination of the judgment of the trial court. The first paragraph of that judgment indicates that Jones suffered from “temporary total” disability for fifty-eight weeks. Accordingly, the court awarded Jones the sum of $1,167.86 in temporary total disability benefits. The second paragraph of the court’s judgment concluded that Jones had incurred an eighty percent impairment of earning capacity because of the injury that he had suffered at the Florence Enameling Company plant. Since the court had already calculated the amount of money which represented compensation for temporary total disability, the language in the second paragraph clearly constituted an award for the “permanent partial” loss of Jones’ ability to earn. Thus, under the facts of this case the finding of an “impairment of earning capacity” may be deemed the equivalent of a finding of a “permanent partial loss of ability to earn.”

The next issue presented for our consideration involves Florence Enameling Company’s claim that the determination by the trial court that Jones had suffered an eighty percent impairment of earning capacity was not supported by the evidence. Specifically, Florence Enameling Company contends that after his injury Jones was employed by the Tennessee Valley Authority as a grounds keeper and that in this capacity he earned wages in excess of the wages he received while in the employment of Florence Enameling Company.

Our supreme court in Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957), indicated that the acceptance or continuation of employment by an injured claimant does not prevent him from receiving disability benefits under the Alabama Workmen’s Compensation Act. Nor does the fact that the claimant’s post-injury earnings equal or exceed the wages he received before his accident preclude a finding of disability. Goodyear Tire & Rubber Co. v. Downey, supra. While actual post-injury earnings will create a presumption of earning capacity commensurate with them, this presumption may be rebutted by (1) independent evidence which demonstrates incapacity or (2) evidence which tends to indicate that the post-injury earnings are an unreliable basis for estimating earning capacity. Goodyear Tire & Rubber Co. v. Downey, supra.

In the present case Jones was employed by the Tennessee Valley Authority subsequent to his injury. And while employed by the TVA he earned an hourly wage equalling or exceeding the amount of money he earned prior to his injury. This evidence created a presumption that Jones’ earning capacity was not impaired by his accident. However, at trial additional, independent evidence was introduced to show that Jones was incapacitated as a result of his injury. This latter evidence rebutted any presumption that Jones’ post-injury earning capacity was commensurate with the wages he received before his accident. Indeed, the physician who treated Jones after his injury testified that Jones had incurred a sixty percent permanent partial impairment to his body as a whole. Another doctor who had knowledge of Jones’ condition stated that the latter suffered a one hundred percent loss of earning capacity. And Jones said that he experienced pain in his back whenever he sat or stood for short periods of time. He further stated that he could not stoop or walk any distance without severe pain.

In addition to the independent evidence described above, there was also evidence which tended to indicate that the post-injury earnings which Jones received while he was employed by the TVA were an unreliable basis for estimating his earning capacity-

In Goodyear Tire & Rubber Co. v. Downey, supra, the supreme court stated that the unreliability of post-injury earnings could be the result of a number of factors, including: an increase in general wage levels since the time of the claimant’s accident; claimant’s own greater maturity; receipt of additional training by claimant; longer hours worked by claimant after the accident; payment of wages disproportionate to the claimant’s ability to perform work-related tasks because of sympathy for the claimant; and the temporary and unpredictable character of post-injury earnings received by the claimant.

In the instant case there was evidence presented at trial from which it could have been reasonably concluded by the trial court that Jones had obtained employment with the TVA because of the latter’s sympathy for his financial plight. Moreover, testimony indicated that Jones’ post-injury earnings from his job with the TVA were at best temporary and unpredictable.

Although there was some conflict in the testimony given at trial, Jones stated that he obtained the job as grounds keeper with the TVA as a result of the financial difficulties suffered by his family after he injured his back. His testified further that he was incapable of performing the more strenuous tasks which that job required and that the TVA refused to employ him on a permanent basis because of his back injury.

In view of the fact that Jones presented independent evidence which demonstrated his incapacity, as well as evidence which tended to indicate that his post-injury earnings were an unreliable basis for estimating his earning capacity, we must reject Florence Enameling Company’s contention that Jones’ ability to earn a living was not impaired by his injury.

Furthermore, we do not find that there was insufficient evidence to support the trial court’s determination that Jones had suffered an eighty percent impairment of earning capacity. The rule is well established that on certiorari to review workmen’s compensation cases, we will not undertake an examination of the weight or preponderance of the evidence presented to the trial court. Instead, we will look to see if there is any evidence to support the facts found by the trial court. Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974). In the present case there was evidence to support the trial court’s findings with regard to the disability issue. Consequently, the findings of that court are conclusive and will not be disturbed on appeal. Unexcelled Manufacturing Corp. v. Ragland, supra.

The final issue for our determination concerns Florence Enameling Company’s claim that the receipt of unemployment compensation by Jones precluded him from receiving temporary total disability benefits for the same period of time. We said in Richardson Homes Corp. v. Shelton, Ala.Civ.App., 336 So.2d 1367 (1976) that the receipt of unemployment compensation does not prohibit the receipt of workmen’s compensation benefits. There is a provision in the unemployment compensation law disqualifying a person from receiving unemployment compensation if he is receiving workmen’s compensation benefits. Title 25, chapter 4, section 78(9), Code of Alabama 1975. Allied Paper Incorporated v. Davis, Ala.Civ.App., 342 So.2d 363 (1977). However, there is no provision in the workmen’s compensation law [such as that found in section 78(9)] disqualifying an employee from receiving workmen’s compensation benefits if he is also receiving unemployment compensation. Accordingly, we do not find that Jones is disqualified from receiving workmen’s compensation benefits.

No reversible error having been successfully argued, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Ex parte FLORENCE ENAMELING CO., INC.
    77-619.
    Supreme Court of Alabama.
    Aug. 25, 1978.
   SHORES, Justice.

WRIT DENIED.

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


text:
    GET IT KWIK OF AMERICA, INC. v. FIRST ALABAMA BANK OF HUNTSVILLE, N.A.
    Civ. 1360.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    Rehearing Denied Aug. 16, 1978.

      S. P. Keith, Jr., Birmingham, for appellant.
    James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for ap-pellee.
   HOLMES, Judge.

This is an appeal by the appellant-plaintiff from a judgment of the Circuit Court of Madison County. That order found in favor of the appellee-defendant on the plaintiff’s complaint and further found for the defendant on its counterclaim against the plaintiff and assessed damages at $1,585.10.

A review of the facts, as revealed by the record, is necessary for an understanding of the issues in this case.

Short Stop Stores, Inc., [hereinafter SSS] obtained a loan for $10,000 from the defendant — First Alabama Bank in May 1976. That same day, SSS gave the defendant a security interest in inventory. The financing statement filed in conjunction with the security agreement stated that it covered “all inventory and fixtures now owned by Short Stop Stores, Inc. presently located at # 3, Highway 20 Madison, Alabama.”

On August 10, 1976, the plaintiff entered into a contract with SSS to purchase two of SSS’s stores. The plaintiff paid $14,000 for both of these stores. One of the stores included in the purchase agreement was the Madison store; the one made the subject of the above noted security agreement.

At the time plaintiff took over the stores, approximately September 20,1976, an independent inventory specialist took a physical inventory of the Madison store. The retail value of the inventory at that date was established to be $6,147.

Contemporaneous with the taking over of the stores, the plaintiff opened a bank account in the name of Get It Kwik Store No. 8, i. e., old SSS Madison store, at the defendant’s place of business. In November, plaintiff wrote a check on that account for $4,561.90. The check was subsequently returned to the plaintiff and was stamped “insufficient funds.” At the time the check was written, the account did in fact have sufficient funds to cover the check. The check never cleared the bank because the defendant-bank had taken all of the funds out of the account and applied them to the debt of SSS.

Plaintiff then filed a complaint against defendant seeking repayment of $4,561.90 for the refusal by defendant to honor the check of plaintiff. Defendant filed a counterclaim along with its answer alleging conversion of certain items of inventory and equipment by the plaintiff. In its counterclaim, the defendant sought $15,000 in damages. As noted above, the issues involved in the complaint of the plaintiff were found in favor of the defendant and on the counterclaim of the defendant the trial court found the issues in favor of the defendant and against the plaintiff and assessed the damages at $1,585.10.

At this point, we would note that the verdict returned in favor of the defendant plus the amount previously withheld from plaintiff’s account amounted to the retail value of the inventory at the Madison store at the time plaintiff took control.

Plaintiff appeals, setting forth two issues for our resolution. First, did the trial court err to reversal in finding that defendant had a right to withdraw funds from plaintiff’s account? Implicit in this issue is the right of the plaintiff to recover the funds withdrawn from its account. Second, did the court err in finding that plaintiff had converted certain property subject to a security agreement held by the defendant?

As to the first issue, the defendant contends, at trial and on appeal, that the transfer of inventory from SSS to plaintiff was fraudulent and void as to defendant because of the failure of plaintiff to comply with the notice provisión of art. 6, the Bulk Transfer article of U.C.C. [Code of Ala. 1975, § 7-6-101, et seq.]. Defendant argues that, due to the above, title to the inventory would still be in SSS and the money derived from the retail sale of the inventory, i. e., funds in plaintiff’s bank account, would belong to SSS. By virtue of this, defendant contends it had a right to apply these funds to the debt of SSS.

Put another way, since the transfer was ineffective as against the defendant, the defendant argues it had a right under its security agreement with SSS to apply the money on deposit with the defendant, representing money received from the sale of the inventory, to the satisfaction of the debt.

The second issue involves the defendant’s counterclaim which set forth a theory of conversion. Specifically, defendant had a perfected security interest in the inventory belonging to SSS. By virtue of this security interest, defendant contends it had a right to possession of the inventory due to the default by SSS on its note. Defendant further argues that the property was converted by plaintiff as a result of it selling the inventory at retail.

I

Code of Ala.1975, § 7-6-104, in pertinent part, states that:

“(1) Except as provided with respect to auction sales (section 7-6-108), a bulk transfer subject to this article is ineffective against any creditor of the transferor unless:
“(a) The transferee requires the transferor to furnish a list of his existing creditors prepared as stated in this section; and
“(b) The parties prepare a schedule of the property transferred sufficient to identify it; and
“(c) The transferee preserves the list and schedule for six months next following the transfer and permits inspection of either or both and copying therefrom at all reasonable hours by any creditor of the transferor, or files the list and schedule in the office of the secretary of state.
“(3) Responsibility for the completeness and accuracy of the list of creditors rests on the transferor, and the transfer is not rendered ineffective by errors or omissions therein unless the transferee is shown to have had knowledge.”

The record shows that plaintiff asked SSS for a breakdown of creditors but the defendant was not on the list. Although there is testimony to indicate plaintiff attempted compliance with the Bulk Sales Act, no other proof was offered to show full compliance with § 7-6-104(1).

As noted above, defendant argues that such noncompliance with the Bulk Sales Act renders the transfer ineffective and enables the defendant to rightfully apply the plaintiff’s money on deposit to satisfy SSS’s debt. We cannot agree.

The court in Darby v. Ewings Home Furnishings, 5 UCC Rep. 198, 278 F.Supp. 917 (DCWD Okl.1967), held that § 6-106 of the U.C.C. renders a transferee personally liable to creditors of the transferor for the value of the property purchased or the amount paid if there is a failure to comply with the bulk transfer provisions.

However, § 6-106 was not adopted by Alabama and thus has no applicability in the present case.

The law is clear that a bank’s right to set-off or apply funds exists only where, with respect to both debt and deposit, the bank and depositor are in a debtor-creditor relationship and there is a mutuality of demands. See Kaufman v. First National Bank of Opp, Alabama, 493 F.2d 1070 (5th Cir. 1974).

In this case, the plaintiff was not in a debtor-creditor relationship with the defendant as concerns both the deposit and the debt. The debt was between SSS and the defendant; plaintiff did not assume the debt nor place itself in a position to be deemed a debtor as to the defendant so as to allow defendant to apply its funds.

Further, the situation involved here does not give rise to the imposition of a banker’s lien. To justify the lien, there must be credit given upon the faith of the deposit then on hand. In such cases, if the debt to the bank is past due, it may, without the consent of the depositor, apply a deposit to the past due indebtedness. See Bank of Guntersville v. Crayter, 199 Ala. 599, 75 So. 7 (1917).

Put another way, a “banker’s lien” has been defined as a lien which attaches in favor of the bank, on the securities and moneys of the customer deposited in the usual course of business, for advances made on his credit or for existing indebtedness of the depositor to the bank. See 22 ALR2d 478, § 2; 9 C.J.S. Banks and Banking § 309.

As the record clearly reveals, the plaintiff had no credit extended to it by virtue of its deposit nor did the plaintiff have any debt outstanding with the defendant. A banker’s lien could not therefore arise under this situation.

Noncompliance with the Bulk Transfer Act merely made the transfer ineffective as to defendant, the secured creditor. The defendant retained his right to the collateral and/or any proceeds resulting from its disposition. Defendant therefore retained his preferred position as a secured creditor notwithstanding the transfer from SSS to plaintiff. However, the fact that the transfer is rendered ineffective as to the defendant does not per se expose the plaintiff to personal liability on the debt owed by SSS merely because plaintiff was the transferee.

Although the note executed in conjunction with the security agreement issued by SSS to the defendant contained the following,

“Upon default (‘default’ being hereinafter defined), or Secured Party deeming itself insecure, the unpaid balance of this debt shall, at Secured Party’s option, become immediately due and payable and Secured Party is hereby authorized to apply at default, on, or after maturity, to the payment of this debt, any funds or security at the bank at which this note is payable, belonging to the makers, sureties, endorsers, guarantors, or any of them. . . .

such does not allow the defendant to take such actions against plaintiff. The plaintiff was not a party to the agreement; did not assume the note and the mere fact that the Bulk Transfer Act was not fully complied with does not render plaintiff susceptible to such a remedy.

Even though Code of Ala. 1975, § 7-9-201, states that a security agreement is effective against purchasers of the collateral, the terms of the security agreement, such as applying funds, are not effective against such purchasers. The terms of the security agreement are effective as between the parties to the agreement. The security agreement is, however, effective against purchasers of the collateral in the context of protecting the secured party’s interest by allowing repossession of the collateral or allowing an action for conversion. See Official Comments, Code of Ala. 1975, § 7-9-306.

Defendant next argues that the funds in plaintiff’s account were the proceeds from the sale of the inventory by the plaintiff. Defendant further contends that it had a right to apply those proceeds to the debt since it also had a secured interest in those proceeds. Defendant relies on § 7-9-306(2) as follows, for its argument:

“(2) Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the security party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” [Emphasis supplied.]

It is clear to this court that “proceeds”, within the context of art. 9, does not mean proceeds from the sale of the collateral by the transferee. Proceeds means the payment or agreed upon exchange by the transferee to the transferor for the purchase of the collateral. In the present case, the plaintiff bought two stores from SSS for approximately $14,000. Testimony at trial revealed that approximately $8,000 of that sum could be attributed to the Madison store. It is that sum received by the debt- or-transferee from the sale of the collateral which is deemed to be “proceeds” of the collateral and not the price the transferee, i. e., plaintiff in this instance, receives when he ultimately sells the goods at retail.

In view of this, we cannot say the defendant had a right to withdraw funds from the plaintiff’s account to apply them against the debt of SSS. The fact that plaintiff purchased collateral which was the object of a perfected security agreement does not make plaintiff’s funds subject to withdrawal by the holder of such security agreement.

The trial court therefore was in error in finding for the defendant on plaintiff’s complaint. The plaintiff had in fact established the defendant wrongfully dishonored its check due to defendant’s lack of legal right to apply the funds.

II

As to the second issue, the plaintiff contends the trial court erred in' awarding defendant damages based upon the following counterclaim:

“Comes now the Defendant, First Alabama Bank, and having fully answered the Complaint heretofore filed by the Plaintiff would file this its Counterclaim against the Plaintiff as follows:
“1. On or about the 5th day of May, 1976, the Plaintiff converted to its own use various and sundry items of inventory located at 5116 Governors Drive, West, in Huntsville, Alabama, and one NCR Model 6000 cash register, one 10 by 12 by 7V2 ft. walk-in cooler with glass doors and shelves and IV2 horse power unit cooler motor, one Warren 4-door reach in cooler, 32 feet of Dixiecraft shelving, one checkout counter 10 feet in length, one 4-ton air conditioner, one master built 2-door reach-in cooler Model 560 and 28 feet of Condoles shelving, which property and inventory was subject to a valid security interest in favor of the Defendant, said security interest being properly recorded in the Probate Office of Madison County, Alabama.
“WHEREFORE, Defendant demands judgment against the Plaintiff in the sum of $15,000, interest and costs.”

In most cases when a debtor makes an unauthorized disposition of collateral, the security interest continues in the original collateral in the hands of the purchaser or other transferee. That is to say, since the transferee takes subject to the security interest, the secured party may repossess the collateral from him or, in an appropriate case, maintain an action for conversion. See 4 Anderson Uniform Commercial Code § 9-306:1 [2d Ed.].

The security agreement, as entered into by SSS and defendant, stated in § 2 that “the possession by debtor of inventory shall be for purposes of storing and exhibiting inventory for retail sale in the ordinary course of business.” The agreement further stated in § 4 that the “Debtor shall not transfer or otherwise dispose of inventory, except as provided in section 2.”

In view of the above, the sale of the inventory by SSS to plaintiff was an unauthorized disposition in that the sale was out of the ordinary course of business. This is especially true in view of the fact of noncompliance with the Bulk Transfer Article. The security interest therefore continued in the original collateral in the hands of the plaintiff.

Testimony reveals that on the date the plaintiff resold the inventory to the public, the note of SSS was in default. By virtue of the default, the defendant under Code of Ala. 1975, § 7-9-503, had the right to immediate possession of the inventory and was therefore entitled to maintain an action for conversion due to the selling of the collateral by the plaintiff. See 8 U.C.G. Case Digest § 9503.25.

At this point, plaintiff argues that the security interest covered only the inventory present at the Madison store on the date the security agreement was executed. Specifically, the plaintiff relied on the financing statement filed in conjunction with the security agreement which stated that it covered “all inventory and fixtures now owned by Short Stop Stores, Inc. presently located at # 3, Highway 20 Madison, Alabama.” Along the same line, plaintiff contends the inventory covered by the agreement only extended to that which was in the store at that date and did not include any inventory acquired thereafter.

The vast majority of jurisdictions hold that when a security interest is taken in the inventory of a business, after acquired inventory is automatically covered unless it is clearly set out that only certain items of inventory are to be covered. See In re Nickerson & Nickerson, Inc., 9 USS Rep. 886, 329 F.Supp. 93 (DCD Neb.1971).

As the court in In re Page, 16 UCC Rep. 501, 504, (DCMD Fla.1974), stated:

“Needless to say, any reasonable secured party would be fully aware that this type of business presupposes a constant change in the inventory. Therefore, it is obviously unreasonable to assume that anyone would have received or acquired or intended to acquire a security interest in an inventory with the rigid limitation that it should be limited to the same items which made up the inventory on the date the document was executed.”

This approach is consistent with the general liberal philosophy of the U.C.C. and is certainly the prevailing and accepted commercial practice in financing retail merchandising businesses.

In summary, defendant had a security interest in the collateral which continued even though it was sold to plaintiff. At the time plaintiff took over the store and started selling the collateral, the note of SSS was in default. Code of Ala. 1975, § 7-9-503, entitled defendant to an immediate right to possess the inventory because of this default. In accordance with the general law in Alabama under State Farm Mutual Automobile Ins. Co. v. Wagnon, 53 Ala.App. 712, 304 So.2d 216 (1974), defendant was entitled to maintain an action for conversion by virtue of its immediate right to possession of the collateral. The inventory was sold by the plaintiff which, according to Richard Kelly Chevrolet, Inc. v. Williams, Ala.Civ.App., 343 So.2d 776 (1977), is proof of conversion.

In view of this, we cannot say the trial court erred to reversal in finding for the defendant on its counterclaim of conversion.

The above being dispositive of the issues in this cause, the judgment of the trial court finding for the defendant on the plaintiff’s complaint is reversed and remanded for the entry of a judgment not inconsistent with this opinion. The judgment of the trial court finding for the defendant on its counterclaim of conversion is due to be and is hereby affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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

ON REHEARING

The appellee in his application for “rehearing and/or clarification of decision” requests this court to direct that the trial court enter a judgment in the amount of $6,147 in favor of the appellee-bank and against the appellant. This requested judgment is based on the appellee’s complaint of conversion.

It is the appellee’s contention that in view of the trial court’s original action, as can be discerned from our opinion, it was clearly the trial court’s “intent” that the appellee recover the full amount of the converted inventory.

Quite frankly, and for whatever benefit that it might be, this court anticipated that the problem as presented by the appellee would arise. Unfortunately, our anticipation of the problem does not necessarily mean we have an acceptable solution.

In view of the learned and distinguished trial judge’s original judgment, the record before this court, and the issues presented to this court, we cannot direct the trial court to enter the judgment as requested by the appellee.

We would note, however, that the thrust of our original mandate is for the trial court to enter a judgment not inconsistent with our opinion. What is consistent with our opinion is a matter, in the first instance, for the trial court to determine.

THE ORIGINAL OPINION IS HEREBY EXTENDED AND THE APPELLEE’S APPLICATION FOR REHEARING AND/OR CLARIFICATION OF DECISION IS OVERRULED.

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

      . There is testimony to indicate that SSS’s loan was in default at the time plaintiff took over operation of the stores in September, 1976.


author: WRIGHT, Presiding Judge.

text:
    Bobby OGLESBY v. Nellie Grace OGLESBY.
    Civ. 1420.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    Rehearing Denied Aug. 16, 1978.

      J. Wm. Thomason, Birmingham, for appellant.
    Ralph L. Armstrong, Bessemer, for appel-lee.
   WRIGHT, Presiding Judge.

The husband appeals from alimony in gross provisions of a divorce decree.

The parties were married in 1951. They have one adult daughter. They divorced in 1963 but entered into a common-law marriage in September 1964. They were again ceremonially married in 1965.

The husband worked twenty-one years at U. S. Steel and is presently receiving a monthly disability pension of $285 as a result of an accident. He owned a forty-acre farm with a house, valued at $68,000, but the husband testified the farm was producing no income. At the time of trial, $5,000 was still owed on a farm mortgage. The husband began a liquid feed business in 1974 but at trial he testified it would be five years before any profits would be shown. He owns $11,000 worth of liquid feed equipment, with that amount still owed. He earns $300 per month from a part-time job managing a cafe.

During coverture the wife did household work and farm chores and worked at various jobs after the husband’s accident, helping to pay bills. She testified that she purchased certain farm equipment and house furnishings.

In December 1975, while still married to the husband, the wife entered a ceremonial marriage with Jimmy Humphryes, the husband’s erstwhile partner in the liquid feed business. Knowledge by the husband of that relationship precipitated a separation in February 1976. The wife left the home and began living openly with Humphryes in Panama City, Florida, where she resided at time of trial.

The husband filed a complaint in August 1976 alleging incompatibility. Judgment of divorce was rendered September 29, 1977. The court found the main property of the marriage to be the farm and homeplace. The wife was awarded an organ and stereo, all other personal and real property going to the husband. She was awarded $20,000 alimony in gross, $3,000 to be paid within sixty days of the divorce and the balance payable in monthly installments of $100. A lien was placed on the farm to insure payment. The court reserved jurisdiction to accelerate payment or to change method or time of payment but not to alter tjie amount. Attorney fees in the amount of $250 were awarded. The husband’s motion for new trial was denied and appeal was taken.

The husband contends the alimony in gross award is excessive in that he is unable to pay and the award fails to consider the wife’s fault and her present earning ability.

An award of alimony in gross may be used to compensate a wife for her inchoate marital rights and represent a division of the fruits of the marriage where the liquidation of a couple’s jointly-owned assets is not practicable. Hawkins v. Hawkins, 346 So.2d 967 (Ala.Civ.App.1977). There is no mathematical formula in determining the propriety of an alimony award. Phillips v. Phillips, 344 So.2d 786 (Ala.Civ.App.1977). The question of alimony is a matter within the trial court’s sound discretion and will not be reversed on appeal in the absence of abuse. Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977). The $20,000 award in the instant case is not unjust, despite the husband’s protests of inability to pay. It is less than one-third the value of the farm and the wife clearly contributed to the development and maintenance of the farm. The $100 monthly payments are only about one-sixth the husband’s monthly income of $585. It is anticipated that his income will increase in a few years as his liquid feed business becomes profitable. The decree does not require that the farm be sold, so the case of Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966), involving sacrifice of capital assets, is not applicable. If at any time it appears the husband is having difficulty making the payments, he might obtain relief by invoking the decretal provision providing for modification of the time or method of payments “as conditions and circumstances may change.” Since it appears the farm produces no income, its sale for property settlement could have been ordered without violating the principle of Leo v. Leo, supra.

It is asserted that the court improperly failed to consider the wife’s fault in the breakup of the marriage, or her present earning ability; it appears she presently earns $750 per month and her new husband earns another $750. The difference between gross and periodic alimony should be noted. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) stated:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of the divorce. ... On the other hand, ‘periodic alimony’ is an allowance for the future support of the wife payable from the current earnings of the husband.” Id. at 55, 299 So.2d at 750.

Although fault and earning ability are factors to be considered, the primary emphasis in awarding gross alimony is the present value of the wife’s rights. The award in the instant case focused upon the wife’s contribution to the accumulated estate and her inchoate rights therein. Whether denominated alimony in gross or a division of property, the court was empowered to adjust all equities between the parties. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977); Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975). Section 30-2-53, Code of Alabama (1975).

It is our opinion that the trial court did not stray from the bounds of its discretion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ronald C. MILLER v. Wilma Ireates MILLER.
    Civ. 1311-X.
    Court of Civil Appeals of Alabama.
    Aug. 9, 1978.

      Fred Blanton, Birmingham, for appellant/cross-appellee.
    L. Drew Redden, Birmingham, for appel-lee/cross-appellant.
   WRIGHT, Presiding Judge.

This is a divorce case. There is appeal by the husband and cross-appeal by the wife from the property division and alimony aspects of the judgment. We affirm as to all aspects except'the insurance provision. We reverse that part of the judgment and remand with direction for entry of an enforceable judgment.

The only issue presented by the husband’s appeal is whether the trial judge, after orally hearing the evidence, palpably abused his judicial discretion in dividing the property of the marriage and in awarding attorney fees to the wife. This issue requires that this court consider the judgment with its presumption of correctness, to determine if it is so unsupported by the legal evidence as to be arbitrary, unjust or capricious and a clear abuse of the judicial discretion of the trial judge. Mullins v. Mullins, 344 So.2d 511 (Ala.Civ.App.1977).

The oral evidence with exhibits, constitutes a voluminous record. We outline the material evidence as succinctly as possible.

The marriage occurred in 1968. The husband is now 38 and the wife 35 years of age. There is one child, eight years of age. They came to Alabama from Wisconsin in 1971. The husband was employed in the paper industry on salary until 1973. He then began his own business offering a specialized service of precision alignment of machinery used in the manufacture of paper. After an initial period of hard times, during which the wife contributed to the business and provided living expenses, the business prospered. It grossed $63,000 in 1975 and $112,000 in 1976. At the end of 1976, the business had $71,000 in assets which consisted largely of specialized equipment. There was a net profit in 1975 of $22,000 and in 1976 of $37,000 after taking a $15,000 depreciation credit and paying much of the husband’s living expenses.

Some two weeks prior to the trial, the husband said he closed his business, and went to work at a salary of $400 per week for a company operated by close friends. After the separation, the husband sold assets to his friends and relatives in spite of a court restraining order. The $22,000 he said he received therefrom has been spent. He stated that he closed his business and took a job affording considerably less income than he could have earned from his business because of the strain of the divorce. There was evidence from the wife and a private investigator retained by the wife, that after the separation, the husband spent most of two nights and the intervening day in the apartment of another woman. He was found there by sheriff deputies at 2:30 A.M.

The wife stated the husband struck her with his fist just prior to the separation and had hit her many times during the marriage. The wife has been employed since 1973 by an advertising agency as a telephone sales supervisor. Her annual salary is $12,750.

The parties own a home valued at $50,000 with monthly mortgage payments of $188.

After trial on May 31, 1977, judgment was entered on June 28, 1977. The judgment granted a divorce; gave custody of the child to the wife; ordered child support in the amount of $300 per month; ordered the husband to obtain medical and life insurance for the benefit of the child; gave use and occupancy of the home to the wife during minority of the child or until the wife remarried, after which it is to be sold and the net proceeds equally divided; awarded the wifé a Jeep automobile, an Argosy trailer, all household goods except guns and tools and $2,500 attorney fees; directed the husband to pay all debts of the marriage and the mortgage payments on the home.

Our appellate courts have often stated though the judgment of the trial court might differ from a judgment the reviewing court might have rendered had it been the trial court, such is not a basis for reversal. McPherson v. Everett, 277 Ala. 519, 172 So.2d 784 (1965). • We reiterate that principle in this case. We say to the appealing husband that the matters he complains of in this appeal were subject to the sound discretion of the trial judge who heard the evidence and saw the witnesses as they spoke. We cannot substitute our judgment for his. It is not required that property of the marriage be divided equally, but rather that it be divided equitably according to facts of the case, considering among other factors, the fault of the husband. Ayers v. Ayers, 352 So.2d 459 (Ala.Civ.App.1977); Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973); § 30-2-52, Code of Alabama (1975). The same statement and authority applies equally to the exercise of discretion in granting to the wife attorney fees. We say further that the fault of the husband may be considered in division of property and award of alimony, even though the divorce be granted on a no-fault ground. Phillips v. Phillips, supra.

Except for one issue presented, what we have said in response to the issue presented by the husband, applies as well to the issues presented by the wife’s cross-appeal.

The wife submits that the trial court erred in failing to give her the husband’s title in the home even though he has been required by the court to pay the indebtedness thereon. We find no abuse of discretion in such failure.

The wife contends error in the failure to award her a reasonable monthly sum in alimony or to reserve the jurisdiction of the court to consider a future award. In view of the evidence and the other awards to the wife in the judgment, we discern no abuse of discretion in these failures of the court.

We respond the same to the contention that the wife should have been granted a portion of the sums received by the husband from the sale of property contrary to order of the court.

We must agree with the wife, however, that the paragraph of the judgment numbered “Seventh” is so lacking in clarity as to be unenforceable. There is direction therein that the defendant husband “obtain and keep in full force and effect life insurance, with the minor child ... as primary beneficiary . . ..” There is no amount of insurance specified. We reverse Paragraph Seventh and remand for reconsideration and amendment as to the amount and kind of insurance to be obtained together with any other amendment thereto considered meet and proper by the trial court.

AFFIRMED AS TO APPEAL OF DEFENDANT. AFFIRMED IN PART, REVERSED AND REMANDED WITH DIRECTION IN PART AS TO CROSS-APPEAL OF PLAINTIFF.

BRADLEY and HOLMES, JJ., concur.


text:
    Sara C. SHAMBLIN v. Billy M. SHAMBLIN.
    Civ. 1453.
    Court of Civil Appeals of Alabama.
    Aug. 9, 1978.
    Robert F. Prince, McDuffie, Holcombe & Prince, Tuscaloosa, for appellant.
    Robert V. Wooldridge, Jr., Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a divorce case. The wife appeals and contends that the trial court erred to reversal in its division of property and award of alimony in gross. We find no such abuse of discretion by the trial court and affirm.

Viewing the record with the attendant presumption of correctness, we find the following pertinent facts: The parties were married in 1969. The wife worked most of her adult life as a cosmetologist. She ceased work in 1973. She now suffers from arthritis. The husband is employed and earns in excess of $20,000 per year.

During the marriage, the husband and wife entered into several joint enterprises. These enterprises were in large measure real estate transactions. Both parties apparently received benefits from these transactions.

After an ore tenus hearing, the trial court entered a decree dividing the entire assets of the parties and made an award of alimony in gross to the wife. This decree in part provides as follows:

“IT IS FURTHER ORDERED that the Defendant have the exclusive use of the home of Plaintiff and Defendant which is located at 82 Riverdale, for a period of six months from the date of this Decree. During this six months period, the mortgage payments shall be paid by the Plaintiff. Further, during this same period of six months, the utilities of said 82 River-dale shall be paid by the Plaintiff, but not the telephone bills.
“IT IS FURTHER ORDERED that the said 82 Riverdale shall be sold at the end of a period of six months from the date of this Decree. The Plaintiff and the Defendant shall join in the sale of the said property. From the gross sales price the expense of the sale shall be subtracted. Likewise, the balance owed on the mortgage shall be paid from the gross sales price. Further, from the gross sales price shall be paid that certain $8,500.00 which is owed by Plaintiff and Defendant to the First National Bank of Tuskaloosa. Then the balance of the gross sale which remains shall be divided such that the Plaintiff shall receive 14 of the remainder and the Defendant shall receive % of the remainder.
“IT IS FURTHER ORDERED that the Defendant shall have her choice of either of the following lots of property, and the Plaintiff shall have the other:
“LOT ONE: That certain note owed.to Plaintiff and Defendant by Indian Lakes which is a debt receivable in the approximate amount of $10,500.00; or,
“LOT TWO: Lot Number 122 Covey Chase, together with the balance owed to the grantor on the purchase money mortgage, and also the duty to pay the amount of $3,500.00 owed to First National Bank of Tuskaloosa.
“IT IS FURTHER ORDERED that for a period of six (6) months from the date of this Decree the Plaintiff shall pay unto the Defendant as alimony in gross the sum of one Hundred and No/100 ($100.00) Dollars per month. Thereafter, the Plaintiff shall pay as alimony in gross unto the Defendant for the following period of eighteen (18) months the sum of $150.00 per month. Thereafter, the Plaintiff shall pay as alimony in gross unto the Defendant for the following period of twenty-four (24) months the sum of $100.00 per month. Thereafter, the Plaintiff shall not be indebted to pay any further sums to the Defendant as alimony or otherwise.
“IT IS FURTHER ORDERED that the Plaintiff and Defendant shall share equally the proceeds from those two income tax refunds received by the Plaintiff from the State of Alabama and from the U. S. Internal Revenue Service, which sum totals approximately $1,054.00.
“IT IS FURTHER ORDERED that of the two automobiles which were obtained by Plaintiff and Defendant and which they still possess, the Plaintiff shall receive the exclusive rights, title and interest to the 1976 Grand Prix, together with the indebtedness owed on it, and the Defendant shall receive the exclusive right, title and interest to the 1974 Cadillac.
“IT IS FURTHER ORDERED that the furniture owned by Plaintiff and Defendant, which is located in the residence at 82 Riverdale shall be equitably divided by the parties by their mutual agreement. If, however, such an equitable division cannot be agreed on, then upon petition by either or both parties, the Court will effect an equitable division.”

To summarize, the wife was given exclusive use of the family home for six months with the husband to make all mortgage and utility payments. At the end of six months, the home was to be sold and the balance, after deducting selling costs and a note of $8,500.00, was to be divided % to the wife and xk to the husband.

The wife was also to receive alimony in gross totaling $5,700 to be paid over a period of four years. The wife was given a 1974 Cadillac with the husband receiving a 1976 Grand Prix. Additionally, the wife had the choice between a $10,500 note re-’ ceivable and a parcel of land subject to certain encumbrances. A tax refund of approximately $1,000 was also divided equally between the parties.

The wife, through able counsel, contends the trial court abused its discretion in the division of property. This contention is bottomed on the premise that the wife had a separate estate at the time of the marriage of approximately $100,000. This estate consisted of cash kept in a safe by the wife and of monies in various savings accounts allegedly owned by the wife.

It is the wife’s position that the trial court failed to give proper consideration to this separate estate in making its award. See Code of Ala.1975, § 30-4-1.

The only evidence regarding the substantial amount of money which made up the wife’s separate estate is her own testimony. The husband’s testimony however does indicate that the wife did contribute some funds to their various enterprises.

We find that in this instance the amount of the wife’s separate estate was a question of fact for the trier of fact. See 18A Ala.Digest Trial 142, 143. See also White v. State, 262 Ala. 694, 81 So.2d 267 (1955); Mutual Life Ins. Co. of N. Y. v. Sargent, 51 F.2d 4 (5th Cir. 1931).

As noted above, the wife testified as having a separate estate totaling approximately $100,000 plus. The husband however testified that the wife contributed $30,000 to their joint ventures in real estate. Suffice it to say, the wife had no records as to the cash in the safe nor did she remember the last time the money was counted or when it was disbursed. The husband testified he knew of the existence of the safe but not its contents. The record further reveals a conflict in testimony concerning the existence of and transactions with the wife’s purported savings accounts. These conflicts in testimony were to be resolved by the trial court.

In view of the presumption accorded the trial court’s decree, keeping in mind that a division of property in a divorce proceeding does not have to be equal and must stand on its own facts, see 8 Ala.Digest Divorce 252, we find no abuse of discretion in the division of property.

The wife further contends the trial court erred in that the trial court did not “put enough emphasis on the wife’s total disability” in its award of alimony. We find no merit in the contention.

The record reveals the trial court did consider the wife’s disability and poor health in determining the equities in this case. To say the trial court did not put enough emphasis on this matter would require this court to substitute its judgment for that of the trial court. This, the law does not allow. See Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

In view of the above, no purpose would be served in commenting on the remaining issue raised by the wife.

The case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge. HOLMES, Judge

text:
    Pauline S. BROADUS v. Thomas A. BROADUS.
    Civ. 1465.
    Court of Civil Appeals of Alabama.
    Aug. 9, 1978.

      Herndon Inge, Jr.,, Mobile, for appellant.
    M. A. Marsal, Mobile, for appellee.
   BRADLEY, Judge.

The sole issue before us on this appeal is whether a woman’s right to alimony from her former husband under an agreement incorporated into a divorce decree is revived by the annulment of the woman’s second marriage. The Circuit Court of Mobile County held that appellant-Pauline S. Broad-us’s right to alimony was not revived and she then filed an appeal with this court.

The facts relevant to this appeal are not in dispute. Appellant and appellee-Thomas A. Broadus were married and had two children. When marital difficulties arose between the couple in the summer of 1975 a divorce proceeding was initiated by appellant. Pursuant to this action the parties entered into an agreement whereby appel-lee was to provide his wife (appellant) alimony in the sum of $320 a month until such time as she remarried. The parties were subsequently divorced in May of 1976 and the divorce decree incorporated the aforementioned agreement.

On October 29, 1976 appellant married a man named Clinton Mitchel. However, on January 27, 1977, appellant’s marriage to Mitchel was annulled. The record does not disclose why appellant’s second marriage was annulled. Nonetheless, in March of 1977 appellant filed a motion seeking- to enforce appellee’s obligation to provide alimony under the terms of the divorce decree. After the consideration of the briefs submitted on behalf of both parties, the Mobile County Circuit Court rendered a judgment in favor of appellee. The court concluded that the agreement and intent of the parties was that appellee’s obligation to provide alimony would cease upon appellant’s remarriage, and furthermore, that the subsequent annulment of appellant’s second marriage was not the proper basis for the reinstatement of appellee’s duty to pay alimony.

The question of what effect the annulment of a second marriage has upon an award of alimony resulting from a first marriage has not been decided by the appellate courts of this state. However, a number of other jurisdictions have considered and decided this question. 45 A.L.R.3d 1033 (1972). For instance, some states distinguish between void and voidable second marriages and held that only the latter operate to extinguish the right to alimony. Evans v. Evans, 212 So.2d 107 (Fla.App.1968); Bridges v. Bridges, 217 So.2d 281 (Miss.1968); Dodd v. Dodd, 210 Kan. 50, 499 P.2d 518 (1972); Darling v. Darling, 44 Ohio App.2d 5, 335 N.E.2d 708 (1975). On the other hand, many jurisdictions do not make such a distinction and deny a wife’s right to alimony even where her second marriage is void rather than merely voidable. Fry v. Fry, 5 Cal.App.3d 169, 85 Cal.Rptr. 126 (1970); Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966); Keeney v. Keeney, 211 La. 585, 30 So.2d 549 (1947); Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909 (1972); Denberg v. Frischman, 24 A.D.2d 100, 264 N.Y.S.2d 114 (1965). We feel compelled to adopt the former view which permits the reinstatement of the wife’s right to alimony in those instances where the second marriage is deemed to be void rather than voidable.

Alabama courts may properly annul a marriage on the grounds that the marriage was void from its outset, or on the grounds that the marriage was subject to ratification and thus voidable if not ratified. Henley v. Foster, 220 Ala. 420, 125 So. 662 (1930). And a major difference between a void marriage and a voidable marriage is that the latter is treated as binding until its nullity is ascertained and declared by a competent court, whereas the former does not require such a judgment because the parties could not enter into a valid marital relationship. Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567, 45 A.L.R.3d 1026 (1971). Accordingly, several reasons exist for denying the wife’s claim for reinstatement of alimony in situations where the second marriage is voidable. The reasons were aptly stated in Flaxman v. Flaxman, supra and Evans v. Evans, supra. Among them were: (1) the first husband’s right to rely on the second marriage as a valid remarriage entitling him to recommit any assets previously chargeable to alimony to other purposes; (2) the fact that only the wife and her second husband would ordinarily know whether there was cause for the annulment, thus creating a situation where the marriage might continue indefinitely and thereby cause the first husband’s affairs to be subject to the conduct of parties involved in a relationship in which he has no part; (3) the possibility that the wife’s divorce from her second husband could result in alimony from the second husband while an annulment could reinstate alimony from the first, thus permitting the wife to choose between two sources of support under circumstances where she should not be given such control in view of the fact that it was she who entered into the second marriage, and the subsequent vicissitudes of that marriage should not be attributable to her first husband; and (4) the potential for inequitable treatment to the first husband in that the wife’s obtainment of an annulment instead of a divorce could vitally affect the rights of her first husband by causing his obligation to pay alimony to be reinstated as a matter of law in a proceeding at which he was not represented or able to challenge the validity of the grounds asserted in support of the annulment.

The above stated reasons are not present, however, where the second marriage is void at the outset. In the latter situation it is as if there was no marriage and the parties to the second union stand in the same relation to each other as though the union had never taken place. For this reason, the status of the wife under the terms of the original divorce decree is not changed by the void marriage to the second husband and her right to receive alimony from her first husband is deemed to have been revived. DeWall v. Rhoderick, 258 Iowa 433, 138 N.W.2d 124 (1965).

In this jurisdiction a number of cases have held that it is the status of the marital relationship rather than the marriage ceremony which is of importance in cases involving petitions for annulment. Johnson v. Johnson, 245 Ala. 145, 16 So.2d 401 (1944); Hamlet v. Hamlet, 242 Ala. 70, 4 So.2d 901 (1941); Henley v. Foster, supra; Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640 (1904). Accordingly, even if a marriage ceremony takes place, the marriage may nevertheless be declared void ab initio if the parties could not validly enter into the status of matrimony. See Hawkins v. Hawkins, supra.

Furthermore, we see no reason why this principle should not prevail in instances where the language employed in a stipulation of agreement contained in a divorce decree states that the wife’s right to receive alimony shall cease upon her remarriage. In other words, the wife must legally enter into another marital status or relationship before she may be deemed to be remarried under the terms of the divorce decree. Thus, there is no merit to any contention that the marriage ceremony itself automatically terminates an obligation to pay further alimony in view of the fact that case law in this state requires a change in marital status. And, as stated earlier, a woman’s marital status is not changed by a void marriage because a void marriage is in fact no marriage. DeWall v. Rhoderick, supra.

In the present case the record does not reveal the reason for the annulment of appellant’s second marriage. Consequently, we reverse and remand for the circuit court to determine whether the appellant’s marriage to Mitchel was void or voidable, and thereby render a judgment in accordance with this opinion.

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting):

I respectfully dissent.

As the majority opinion states, this is a case of first impression. I believe the better view is that the divorce decree requires the conclusion that when the wife went through the ceremony of marriage with another man, her right to alimony ceased. Put another way, the wife remarried and the decree provided that alimony would cease upon remarriage. A subsequent annulment, whether based on a void or voidable marriage, does not reinstate the alimony. See Fry v. Fry, 5 Cal.App.3d 169, 85 Cal.Rptr. 126 (1970); Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966); Keeney v. Keeney, 211 La. 585, 30 So.2d 549 (1947); Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909 (1972); Denberg v. Frischman, 24 A.D.2d 100, 264 N.Y.S.2d 114 (1965).

The reasons, as stated in the majority opinion, for not reinstating alimony in situations where the second marriage is voidable appear to me to be just as applicable in a void second marriage situation. Furthermore, it would appear to me that the majority’s reasoning would necessarily mean that in a void marriage situation, the wife would be entitled to the alimony not paid to her while she was “married.”

I would affirm the trial court.

      . This case was initiated prior to the adoption of legislation requiring the termination of alimony payments upon proof that the spouse receiving such alimony has remarried or is living openly (or cohabiting) with a member of the opposite sex. Act No. 596, Acts of Alabama 1978.