text:
    ROY A. SCHNEBELEN & ASSOCIATES, d/b/a Pine Terrace Apartments, a Louisiana Partnership in Commendam, Plaintiff-Appellant, v. AMERICAN BANK & TRUST COMPANY and the First Fidelity Mortgage Company, Defendants-Appellees.
    No. 13313.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.

      Oliver & Wilson by John W. Wilson, Monroe, Gary & Field by Leon Gary, Jr., Baton Rouge, for plaintiff-appellant.
    Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for defendant-appellee, American Bank & Trust Co.
    Boles, Mounger, Hallack & Olsen by William H. Hallack, Jr., Monroe, for defendant-appellee, First Fidelity Mortgage Co.
    Before HALL, MARVIN and BOLIN, JJ.
   MARVIN, Judge.

After the completion of construction and the closing of a 1.4 million dollar, FHA insured, permanent loan on plaintiff partnership’s apartment project, the partnership sued to recover from its mortgage broker and its interim-financing bank $164,000, which it paid the bank as interest and “yield fees” during construction.

The lower court rejected the partnership’s demands except for $56 “interest on interest” claim against the bank. The partnership appeals. The bank answered the appeal, contending the $56 claim also should have been rejected. We affirm.

The partnership contends the amount paid the bank was usurious in violation of state law and was also contrary to financing commitments it had with the mortgage broker and FHA, which commitments the partnership argues were binding on the bank.

Financing for the project was obtained under Section 236 of the National Housing Act of 1964 (12 U.S.C., as amended). Real estate for the project was purchased from several owners, including one Donald R. Thames, who was an officer of First Fidelity Mortgage Company, the mortgage broker. Thames died before this controversy arose. In 1972, Thames certified to FHA that First Fidelity would provide interim and permanent financing for the project at no discount. FHA agreed to insure a loan of $1,387,700 at seven percent annual interest payable over 480 months. Among the charges and fees which FHA approved was an “initial service charge” (obviously not considered a “discount”) of $27,574 to be paid by the partnership to First Fidelity (two percent of the loan). One mortgage was executed by the partnership along with other contracts relating to the financing of the project on November 28, 1972. These contracts expressly provided that construction would be completed by November 27, 1973. Installment payments on the mortgage began December 1, 1972, but were interest only payments until May 1, 1974, some six months after the completion date. The six-month period allowed a time to achieve a desired percentage of occupancy in the project. The periodic installment payments were paid by the partnership. The $27,574 initial service charge is a part of the $164,000 sued for. One-half of the service charge ($13,787) was paid by First Fidelity to American Bank & Trust Company as an inducement for interim financing. Permanent financing was provided by a government sponsored agency (FNMA).

First Fidelity endorsed and assigned the note and mortgage to the bank as security for the interim financing. The partnership periodically drew funds from the bank (eventually $1,338,300) and executed a hand note on each occasion at seven percent interest, payable on demand.

Construction was not completed by the scheduled completion date (November 27, 1973) because of matters not involving First Fidelity or the bank. At that time, and because of increasing interest rates and inflation, as well as demands by a participating bank; American Bank considered that its commitment to furnish seven percent construction money to the partnership had ended. American Bank so informed the partnership and demanded an increased rate of interest (12%%) or a one percent “yield fee” of $13,787. The partnership elected to pay the yield fee, which was sometimes referred to by the litigants as a service fee.

Construction was not complete in March, 1974, and the bank again demanded a yield fee or increase in interest from the partnership. The partnership refused and the bank’s attorneys then informed the partnership that the loan was in default and demanded payment of principal ($1,235,000), plus additional yield fees and interest through June 19,1974, and threatened foreclosure. On May 13, 1974, the partnership paid, under attempted protest, $32,377 in yield fees and past due interest demanded by the bank.

Because of the partnership’s delay in paying the installment interest payments, the American Bank paid its participating bank $56 as a late fee or additional interest in February, 1974. American Bank wrote the partnership about this and stated it would be necessary for the bank to charge “interest on the interest” which became due on February 1. The partnership paid the $56 to the bank, apparently as a matter of routine.

Construction was completed and the “final closing” for permanent financing occurred about September 19, 1974. The mortgage note was obtained from American Bank by First Fidelity and was sold and transferred to the government agency (FNMA) which had earlier agreed with First Fidelity to handle the permanent financing. American Bank was paid in full ($1,338,300) by First Fidelity when the permanent loan proceeds were received from FNMA ($1,387,700).

On August 21, 1975, the partnership brought suit. It contends that First Fidelity and American Bank should be treated as one entity because the two corporations have some overlapping directors, particularly the attorney (Boles) whose firm closed the loan, and because all three have offices in the same complex of buildings. The partnership asserts that all of the paperwork, agreements, and development of the project was undertaken because of the guarantees and conditions originally made to it by the late Mr. Thames and consequently, it was not obligated to pay more than the mortgage note provided because there was only one loan at seven percent interest from the beginning. Because of these circumstances, the partnership argues it was at the mercy of the mortgage broker and the bank, both of whom were being directed by Attorney Boles.

Boles is an officer and director of First Fidelity and the American Bank. His law firm is counsel for both corporations. The late Mr. Thames did require that the Boles firm (as counsel for First Fidelity) handle the loan closings and legal work. The lower court found, and we agree, that these factors do not lead to the conclusion, as the partnership contends, that one entity was legally the alter ego of the other or other two. The principal partner of plaintiff acknowledged he had discussed with the partnership’s counsel the preliminary negotiations before he agreed to this arrangement. It is also shown that the partnership was fully aware of Boles’ association with and representation of the two corporations. In addition, the bank was not a signatory to the several writings executed by the partnership, the mortgage broker and sometimes by FHA. The only writings between the bank and the partnership before the controversy were hand notes at seven percent interest due on demand for funds loaned by the bank to the partnership.

The crux of the partnership’s argument is that by the commitment of Thames and the FHA it was guaranteed seven percent money during the interim construction phase of the project even though the construction continued for several months past the express completion date (November 27, 1973) to September 19,1974. The American Bank fully honored the seven percent interim commitment until November 30, 1973, after which time it demanded and eventually received the “going” (and higher) rate of interest equivalent to 12V2% percent per year in the form of yield fees.

Nothing in the multitude of documents between the partnership, the mortgage broker and FHA guaranteed interim financing money at seven percent interest beyond the contemplated completion date of November 27, 1973. The partnership was well aware of First Fidelity’s status as a broker and knew that it was dealing directly with the bank for interim financing by hand notes secured by the mortgage note as well as by the personal guarantees of plaintiff’s principal partners. The partnership was also aware from the beginning that the mortgage note would partially secure interim financing and that upon final closing, the mortgage note would be transferred or sold to FNMA under the permanent financing commitment. Indeed, plaintiff’s complaints are not directed toward the use of the mortgage note in this manner. C.C. Arts. 3133, 3145, 3146, 3154-3175. Each demand note signed by the partnership expressly states it is secured by the mortgage note of November 28,1972, for $1,378,700 as well as by the personal guarantee of individual partners of plaintiff. Likewise, we do not find the charges demanded by the bank and paid by the plaintiff partnership after November 30, 1973, to be usurious. R.S. 9:3505(3); R.S. 12:703.

R.S. 12:703 provides that partnerships in commendam may agree to pay interest in excess of the maximum allowable conventional interest and prohibits the partnership which has so agreed from claiming usury. R.S. 9:3505(3) expressly provides that discount fees, service fees, origination fees or similar fees paid by anyone on a loan secured even indirectly in part by a mortgage on immovable property, shall not be considered as interest. The trial court correctly found that the partnership had not established that the transaction in question was usurious.

The charges in question (service or yield fees equivalent to I2V2 percent interest after November 30, 1973) were paid by the partnership after being proposed by the bank and the partnership’s “protest” of the latter payments on and after March 20, 1974, were nothing more than a reservation of its rights to litigate its contentions here under consideration. Hicks v. Levett, 19 La.App. 836, 140 So. 276 (2d Cir. 1932).

The payment of $56.03 complained of arose under these circumstances: On February 14, 1974, the bank wrote plaintiff that interest payments were past due and that the bank had forwarded to the participating bank its portion of the past due payments. The letter stated that the bank could not “continue” such a practice without charging interest for payments forwarded to the participating bank. On February 20, 1974, the bank charged the partnership on a charge slip a “late fee” on nine items. This fee totaled $56.03. The February 14 letter referred to charging interest on the interest paid to participating bank. Pretermitting any consideration over the terminology (late fee versus interest on interest) and the alleged voluntary payment, we find, as did the lower court, that the $56 charge under whatever designation cannot be upheld. R.S. 9:3505(2) approves of late charges on delinquent interest installment payments, but requires that the method of determining the late charge be written in the note or the mortgage securing the note. There was no agreement or contract by the partnership in this instance to pay the American Bank whatever the bank was charged by its participating bank. The partnership was not a party to the participation agreement between the two banks and the American Bank’s attempt to pass on the charge to the partnership cannot be allowed, notwithstanding the partnership’s payment of the charge. C.C. Art. 1939. For this same reason, neither the charge nor the payment makes the other transaction (hand notes and payments thereon) between the American Bank and the partnership usurious. The $56 charge under the participation agreement was separate from the hand note transactions, similar to the circumstances of Clasen v. Excel Finance Causeway, Inc., 170 So.2d 924 (La.App. 4th Cir. 1965), writ refused. The $56 charge was not agreed to by the partnership, and in that respect, the charge was not a “. contract for the payment of [usurious] interest . . .” under R.S. 9:3501.

For the detailed reasons assigned in an excellently reasoned opinion below, and summarized here, and at appellant’s cost, judgment is

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C. Elliott THOMPSON, Plaintiff-Appellee, v. JUSTISS-MEARS OIL COMPANY, INC., Defendant-Appellant.
    No. 13368.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.

      Gaharan & Wilson by Joseph Wilson, Jena, for defendant-appellant.
    Oliver & Wilson by William A. Hargiss, Monroe, for plaintiff-appellee.
    Before BOLIN, C. J., and PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

A judgment was signed ordering a preliminary injunction May 12,1977, and notice of judgment was mailed May 12,1977. Appellant made a motion for appeal on May 19, 1977, but did not file an appeal bond until June 7, 1977, which was not timely. LSA-C.C.P. Art. 3612.

Appellant was notified of our probable lack of jurisdiction and did not respond to our order to show cause why this appeal should not be dismissed.

At appellant’s cost, the appeal is DISMISSED.


text:
    Roberta Allen BELL, Plaintiff-Appellant, v. John Wesley BELL, Defendant-Appellee.
    No. 13384.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 1, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.
    Wilkinson, Carmody & Peatross by W. Scott Wilkinson, Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by Henry A. Politz, Shreveport, for defendant-appellee.

      Before PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Upon lodging of the record in this case involving a judgment denying a wife a separation from bed and board, the court noted probable lack of jurisdiction due to failure of the appellant to post an appeal bond within the thirty-day period for taking an appeal provided by LSA-C.C.P. Art. 3942. Appellant was advised to show cause why the appeal should not be dismissed.

In response, counsel for appellant filed an excellent and authoritative brief, urging that: (I) the Code of Civil Procedure, particularly Article 3942, does not require a bond for an appeal from a judgment rejecting a petition for separation from bed and board; (2) the court cannot read words into a legislative expression unless the terms of the statute are ambiguous; (3) an appeal bond is not necessary to secure the husband for costs or damages where a separation is denied, since these charges must be satisfied by the husband as head and master of the community; (4) the law does not require vain and useless acts; (5) the rule of stare decisis does not apply in Louisiana and the court should not follow previous decisions inadvisedly rendered; and (6) the right to appeal is favored and an appeal should be sustained whenever possible.

This court has carefully considered the arguments presented, but adheres to the rule and rationale of the numerous cases holding that a bond must be filed within the delay provided in LSA-C.C.P. Arts. 3942 and 3943 in order to perfect an appeal from the types of judgments described in those articles. See Malone v. Malone, 282 So.2d 119 (La.1973); Gates v. Gates, 341 So.2d 574 (La.App. 2d Cir. 1977); Kinnaird v. Kinnaird, 260 So.2d 802 (La. App. 2d Cir. 1972), writ refused 261 La. 1065, 262 So.2d 44 (1972); Wynder v. Wynder, 240 So.2d 425 (La.App. 2d Cir. 1970); Brown v. Brown, 180 So.2d 106 (La.App. 2d Cir. 1965).

Because the appeal was not timely perfected, this court lacks jurisdiction and the appeal must be and is dismissed at appellant’s costs.

Parenthetically, it is noted that Act 176 of 1977, amending LSA-C.C.P. Art. 2124, does away with the requirement of security for devolutive appeals in all cases in which the order of appeal is granted on or after January 1, 1978.

Appeal dismissed.


author: GUIDRY, Judge.

text:
    Sybil SHEPARD, Plaintiff-Appellant, v. James E. SHEPARD, Defendant-Appellee.
    No. 6297.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 8, 1977.

      Arthur I. Robison of Allen, Gooch & Bourgeois, Lafayette, for plaintiff-appellant.
    Olivier & Brinkhaus by John L. Olivier, Sunset, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

MOTION TO REMAND

The appellee, James E. Shepard, moves to remand these consolidated suits to the trial court to enable him to traverse the right of the appellant, Sybil Shepard, to proceed with her appeal in forma pauperis. The motion is unopposed. We remand.

The record of this appeal has not yet been lodged with this court.

Judgment was rendered in these consolidated cross-suits for divorce on June 10, 1977. On July 5, 1977, the appellant, Sybil Shepard, timely moved for an appeal in forma pauperis, which request was granted by the trial court that same date. The appellant’s original suit was not filed in forma pauperis, nor had the appellant previously sought a pauper order prior to the time she moved for her appeal.

The jurisprudence is well settled that where a devolutive appeal has been taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the ap-pellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir. 1972).

Under the facts of this case, the appellee has had no opportunity to traverse in the district court, and thus is clearly entitled to an opportunity to do so. Ross v. Hatchette, 247 So.2d 399 (La.App. 3rd Cir. 1971); Darby v. Travelers Insurance Company, 272 So.2d 798 (La.App. 3rd Cir. 1973).

The appeal is hereby remanded to the trial court for the purpose of allowing the appellee to traverse the appellant’s right to proceed with her appeal in forma pauperis.

APPEAL REMANDED.


author: GULOTTA, Judge.

text:
    Kimmie Geisinger, wife of/and Charles GEISINGER v. EAST JEFFERSON GENERAL HOSPITAL, Stover L. Smith, John Doe and Richard Roe.
    No. 8733.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.

      Robert H. Blomefield, New Orleans, Donald P. Schwarz, Metairie, for plaintiffs-appellants.
    Dillon, Cambre & Marshall, Gerard M. Dillon, New Orleans, for defendant-appel-lee, East Jefferson General Hospital.
    Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr., New Orleans, for defendant-appellee, Stover L. Smith.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Defendants move to dismiss plaintiffs’ appeal on the ground that the record of the appeal was not filed in this court until April 21, 1977, over 16 months after the December 12, 1975 return date. Defendants further contend that payment by the appellants of costs (of transcribing the testimony) approximately 60 days after appellants had been billed for the costs is an error attributable to the appellants.

In the same matter, but under a different number in this court, an earlier motion to dismiss the appeal had been filed. The basis for that motion was that the court reporter had never prepared a transcript of the testimony because the appellants had not paid “the required advance deposit for preparation of the transcript”. Citing Lewis v. Collins, 329 So.2d 485 (La.App. 4th Cir. 1976), this court denied the motion. Thereafter, on October 8, 1976, a bill for the transcript of the testimony was mailed to appellants’ counsel. On December 3, 1976, the court reporter received payment in full. The transcript was filed in the record on December 6,1976. The record was completed on February 25, 1977 and lodged in this court on April 21, 1977. The clerk had never sought an extension of the December 12, 1975 return date.

Defendants-appellees argue that appellants have untimely tendered payment, an error imputable to them, necessitating dismissal of the appeal. We disagree.

Though it is true that LSA-C.C.P. art. 2126 and LSA-R.S. 13:4445(A) require appellants to pay all costs and fees to the clerk of the trial court not later than three days before the return date, it is the duty of the clerk of the trial court to prepare the record on appeal and apply for extensions of the return date if necessary. See LSA-C.C.P. arts. 2125 and 2127.

We stated in Lewis v. Collins, supra, at page 486:

“We hold that the court reporter has no authority to require a deposit before transcribing the testimony for appeal. The legislature has protected the court reporter against an appellant’s abandoning the appeal without paying for the transcript by requiring an appeal bond for ‘all costs due by the appellant,’ C.C.P. 2124. (Here, $250 cash was posted.) Perhaps the reporter may await filing of the bond before transcribing the testimony (or request the judge to increase the bond in an appropriate situation), but the reporter may not refuse to transcribe the testimony once bond has been posted.
“The court reporter’s failure to transcribe the testimony is therefore not attributable to any fault of appellant, nor is the clerk’s consequential inability to prepare and file the record.”

Based on the Lewis decision, we conclude that the failure of the court reporter to prepare the transcript before the return date and the failure of the clerk to obtain extensions of the return date are not errors imputable to the appellants. The Lewis decision is in accord with the latest expression of the Louisiana Supreme Court in Davidge v. Magliola, 346 So.2d 177 (La. 1977).

Irrespective of the Lewis decision and of this court’s determination in the earlier writ filed in this matter, defendants, in relying on Fryou v. Security Industrial Insurance Company, 339 So.2d 1325 (La. App. 1st Cir. 1976), claim that the untimely payment of costs (of transcribing the testimony) approximately 60 days after plaintiffs had been billed for those costs (October 8, 1976-December 3, 1976) is imputable to appellants. In the cited case, the court concluded that appellant’s failure to timely pay or tender the fees and costs for approximately two months (July 12, 1976 — -September 17, 1976) after the appellant had been aware that the transcript was filed in the record is attributable to the appellant. In Fryou, the appeal was dismissed.

We distinguish the facts in our case from the facts in Fryou. It is important to realize that in the Fryou case on July 12 the transcript of the testimony was filed in the record and the appellant was aware of that fact. However, in the instant case, the transcript of the testimony was not filed into the record until three days after appellants had paid the costs. Unlike the Fryou case, there is no indication in the instant case that the transcript of the testimony had been completed when the appellants in our case were billed for the costs. We are not inclined to extend the holding in the Fryou case to the facts in our case. Were we to do so, we would, in effect, be requiring an appellant to advance the billed costs prior to the completion and filing of the transcript of the testimony in the record. This result would be contrary to our holding in the Lewis case. We are not persuaded by defendants’ argument that the Fryou holding is applicable to the instant case.

Accordingly, the motion to dismiss the appeal is denied.

MOTION DENIED.

      . In this connection defendants rely on Fryou v. Security Industrial Insurance Company, 339 So.2d 1325 (La.App. 1st Cir. 1976).

      . Court of Appeal, Fourth Circuit, State of Louisiana, No. 7947.

      . LSA-C.C.P. art. 2125 provides as follows: Art. 2125. Return day
      “The return day of the appeal shall be fixed by the trial court at not more than sixty days from the date the appeal is granted on the application of the clerk, or of the deputy clerk preparing the record of appeal. The trial court may grant only one extension of the return day for the appeal of a civil suit, and such extension shall be not more than thirty days. A copy of said extension shall be filed with the appellate court. Subsequent extensions of the return day shall be granted by the appellate court for sufficient cause.”

      . LSA-C.C.P. art. 2127 provides as follows: Art. 2127. Record on appeal; preparation; prepayment of fees
      “The clerk of the trial court shall have the duty of preparing the record on appeal. He shall cause it to be lodged with the appellate court on or before the return day or any extension thereof, upon the timely payment to him by the appellant of all fees due in connection with the appeal, including the filing fee required by the appellate court to lodge the appeal. Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal.”


text:
    Jo Ann Meyers, wife of John FERRO v. John FERRO.
    No. 9062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 1977.
   WRITS OF MANDAMUS AND PROHIBITION

Relator seeks to have recalled the order of the district court changing the method of her discovery from written interrogatories to oral depositions in Open Court; to order the district judge to desist from proceeding further with the oral deposition and to compel respondent through his counsel to answer each interrogatory as required by C.C.P. art. 1458.

Tbe record reflects relator filed 61 interrogatories in connection with the pending partition of community property which were served on respondent on August 10, 1977. Respondent filed a rule on August 19,1977 to show cause why he should not be relieved from answering, contending that the interrogatories were propounded solely to annoy, embarrass, or oppress respondent and cause him undue expense. Relator filed a counter rule to compel respondent to answer interrogatories.

Both rules were set for trial on the same day. Initially the trial judge began considering and passing upon each interrogatory, but quickly abandoned this approach. He then declared he was converting the discovery proceeding from written interrogatories to oral deposition and instructed counsel for relator to propound the interrogatories in Open Court. Relator’s attorney objected, contending that respondent did not have his records available and therefore could not fully answer the interrogatories involving the details of his business operation. The instant writs resulted.

The trial judge, having before him respondent’s motion, on a finding of good cause shown, could make any order necessary to protect the party from annoyance, embarrassment, etc., even to the changing of the method of discovery. C.C.P. art. 1426(3). Clearly he was vested with the authority to convert the discovery method from written interrogatories to an oral deposition in Open Court. However, in exercising this authority he must have due regard for relator’s rights by affording her a reasonable opportunity to effect the service of such subpoenas or other processes as are necessary to insure that the same information would be elicited by the oral deposition as could have been obtained validly by the written interrogatories. In other words, the changing of the method of discovery should not prejudice the method of the individual to obtain the same information to which he would be entitled under the method initially utilized.

ACCORDINGLY, IT IS ORDERED that the Honorable Wallace LeBrun, Judge, Division “I” of the 24th Judicial District Court of the Parish of Jefferson, desist from proceeding further with the oral deposition in Open Court commenced on September 9, 1977 in the matter of Jo Ann Meyers, wife of John Ferro v. John Ferro, No. 189-078 of the docket of said court.

Nothing herein shall deprive the trial judge of his discretion to grant relator a reasonable time within which to execute the service of such process as may be necessary to insure detailed answers to the questions permitted to be propounded, after which time the trial judge may resume the oral depositions in Open Court or alternatively exercise fully the authority vested in him under C.C.P. art. 1426.

To the extent herein set forth the writs are granted and in all other respects the application is denied.

(s) Edward J. Stoulig JUDGE

(s) William V. Red-mann JUDGE

(s) Patrick M. Schott JUDGE


text:
    Donna W. MAGERS v. James L. MAGERS, Jr.
    No. 49522.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Rehearing Denied Sept. 21, 1977.
    Harris H. Barnes, III, Gulfport, for appellant.
    Greaves & Terry, Ben E. Sheely, Gulf-port, for appellee.
   Appeal from Chancery Court, Harrison County; Prank W. Alexander, Chancellor.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED AS TO DISMISSAL OF CONTEMPT CHARGES; CHILD SUPPORT PAYMENTS OF $100 PER MONTH ARE REINSTATED; AFFIRMED IN PART; REVERSED IN PART.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, WALKER, LEE and BOWLING, JJ., concur.


author: KERMIT R. COFER,

text:
    In the Matter of the WILL and Estate of Alcot JEFFERSON deceased. Scott JEFFERSON et al. v. Ella MOORE, Executrix, Estate of Alcot Jefferson, deceased.
    No. 49545.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    P. Zeb Jones, Jackson, for appellants.
    Howie, Montgomery & Montjoy, Gid Montjoy, IV, Jackson, for appellee.
    Before INZER, P. J., ROBERTSON and WALKER, JJ., and COFER, C.
   KERMIT R. COFER,

Commissioner for the Court:

The Chancery Court of the First Judicial District of Hinds County, overruling objections of the contestants, entered a decree holding the will of Alcot Jefferson, deceased, duly executed, and the contestants have appealed therefrom.

The grounds of contest making up the issue devisavit vel non and submitted to the decision of the chancellor without a jury, were lack of testamentary capacity and that the instrument was not signed by the testator, and, if it was signed by another in the presence of the testator, it was not signed by the testator’s express direction.

Appellants assign as error the chancellor’s finding that Alcot Jefferson was of sound and disposing mind and memory and fully competent to execute his will on its date, February 12, 1975. A second error and to be hereinafter noticed was assigned, but in their assignments, appellants do not attack the chancellor’s holding that the will was signed by the testator in a manner authorized by the statute.

It is this Court’s view that the proof, by a clear preponderance, established the testamentary capacity of the testator at the alleged execution of the will. A review of the proof is, however, rendered unnecessary by the Court’s conclusion as to the second and last assignment of error, “The Court below further erred in finding that the telephone conversation of one of the witnesses to the will constituted presence of the witness to the signing of the will.”

This assignment of error was not a part of the contest, but is based upon proof as adduced in the hearing.

Attorney E. W. Montgomery, II, prepared the instrument, and caused it to be signed by the testator in a manner authorized by the statute. Sec. 91-5-1 Miss.Code Ann. (1972). He then became an attesting witness thereto, signing the document in the presence of the testator as provided by that statute. (The will was probated in common form by use of his proof as attesting witness).

When the testator and Mr. Montgomery had signed the will, Mr. Montgomery took the instrument to his and Mr. Gid Montjoy, IV’s law office; Mr. Montjoy called Alcot Jefferson, told him he had a will in his hand (which Mr. Montgomery testified he had just handed to Mr. Montjoy), and asked him, the testator, if he had signed it. The chancellor summarized the activity of Mr. Montjoy thus, in his decree:

2. . That Mr. Montgomery returned to his office in the Deposit Guaranty National Bank Building in Jackson, Mississippi and informed Gid Montjoy, IV, his law partner, that the instrument exhibited to him was Alcot Jefferson’s will and that Alcot Jefferson had requested that Gid Montjoy witness the same as a subscribing witness. That Mr. Montjoy then telephoned Alcot Jefferson and inquired as to whether the instrument presented was his will, and Alcot Jefferson verified the fact. Whereupon, Gid Montjoy, in the presence of the other subscribing witness, E. W. Montgomery, II, signed the same as a subscribing witness. That it is the opinion of the Court that the will was witnessed in compliance with the statute and that the telephone call constituted presence.

In his opinion on which the decree was based, the chancellor said, in part,

. The Court is going to hold that Mr. Montjoy’s conversation with him over the telephone, in which he, Mr. Montjoy, states as a witness that he knew the voice of Alcot Jefferson, and that Alcot Jefferson testified to him that this was the will he had signed or executed, and that then Mr. Montjoy signed that will in the telephone presence of the deceased, the Testator.
Now, that may not be the law, Mr. Jones, and if it isn’t, you will now have the opportunity to test it, but I believe under the circumstances that the will was properly executed and was the will of Alcot Jefferson .

In the progress of the hearing, the chancellor had taken notice of the uncustomary witnessing of the will, was disturbed by the lack of attestation by both witnesses in the immediate presence of the testator and the fact that “the validity of the will will end up being based on a telephone conversation”, correctly announced that in a will contest trial, the court would be bound to take note that the execution of the will was improperly accomplished, if the proof so showed, and, correctly again, proceeded to the conclusion as treating the pleadings, in respect to the attestation, as being conformed to the proof, “and that the issue is before the Court as to whether or not the will was properly signed . .

There is no cross appeal, nor is there assertion in appellee’s brief that it was improper for the court to treat the pleadings as being thus amended to conform to the proof, and that question is not now before the Court.

The issue now for consideration of this Court is as to whether, on the facts of this case, attestation by Mr. Montjoy was in the presence of the testator. The answer must be in the negative.

The pertinent part of Section 91-5-1, Mississippi Code Annotated (1972), governing the execution of wills says,

. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

In the early case of Watson v. Pipes, 32 Miss. 451 (1856), it was held,

The object of the statute, in requiring that the witnesses shall subscribe their names in the presence of the testator, is, that he may have ocular evidence of the identity of the instrument attested as his will, and thus to prevent the fraudulent substitution of another.
The presence contemplated by the statute, is not simply the bodily presence of the testator; it is essential, that he be also mentally capable of recognizing and actually conscious of the act performed before him. In the meaning of the law, to be corporeally present, it is not indispensable that the testator and the witnesses should be in the same room, or even in the same house, where the attestation is made. An attestation made in the same room with the testator is prima facie good. And where the attestation is shown to have taken place in a different apartment, it is prima facie bad. But this presumption, in either case, will yield to positive proof. And it is settled by all the authorities, that it is not absolutely essential that the testator should actually see, but if the attestation be shown to have been made within the scope of the testator’s view from his actual position, it will be sufficient. For example, when the testator, having a mental consciousness of the act which is performed in consequence of the position in which he lies upon his bed, does not actually see the attesting witnesses subscribe their names, the attestation will be good, provided he had the physical ability to change his position, and by doing so could have seen the proceeding. [32 Miss. at pages 467-8].

The Watson case, supra, was cited with approval and quoted in Walker v. Walker, 67 Miss. 529, 7 So. 491 (1890), wherein the Court said:

The whole evidence (with only a single variant note) declares that the instrument was at once attested by the subscribing witnesses, in the testator’s room, within a few feet of him as he lay upon his bed, and that the testator could have witnessed the attestation, if he had so desired, having only to turn his head to see what was done. That he was abundantly able physically to move his head is perfectly manifest.
On this statement of fact, it plainly appears that the instrument was dictated by the testator and signed by him, with knowledge of its character and contents, as and for his will. This meets all the requirements of our statute as to publication, provided the subscribing witnesses attested by signing in the testator’s presence. We have no doubt, from all the evidence, that the witnesses signed in the presence of the testator. He might readily have seen the attestation, if he wished to do so, by merely turning his head upon his pillow. “When the testator, having a mental consciousness of the act performed in consequence of the position in which he lies upon his bed, does not actually see the attesting witnesses subscribe their names, the attestation will be good, provided he had the physical ability to change his position and by so doing, could see the proceeding.” Watson v. Pipes, 32 Miss. 451. The attestation would appear, therefore, to have been altogether sufficient. [67 Miss. at pages 533-4, 7 So. at page 491].

In Gordon v. Parker, 139 Miss. 334, 104 So. 77 (1925), the Court noted the fact that Mississippi has adopted a liberal construction of the statute of wills favorable to their being upheld insofar as execution and attendant formalities are concerned.

The Supreme Court, in Tyson v. Utterback, et al., 154 Miss. 381, 122 So. 496 (1929), held:

It was observed in Watson v. Pipes, supra, 32 Miss. page 467, that: “The object of the statute, in requiring that the witnesses shall subscribe their names in the presence of the testator, is, that he may have ocular evidence of the identity of the instrument attested as his will and thus . . . prevent the fraudulent substitution of another,” and we subjoin that the requirements of the statute have the further reason that the witnesses also may have present ocular evidence or the full equivalent thereof that another instrument than the one signed by the testator or at his direction in his presence shall not be substituted to the deception of the witnesses. These are the functions of attestation, namely, that the testator may know that the paper that is being attested is the exact paper which he signed, and that the witnesses may know that the paper which they are attesting is the exact paper which the testator signed or expressly directed to be signed for him, in addition to which the attestation includes the further function that the witnesses shall be reasonably satisfied that the testator is of sound and disposing mind and memory and capable of executing a will. Smith v. Young, 134 Miss. 738, 99 So. 370, 35 A.L.R. 69; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Helm v. Sheeks, 116 Miss. 731, 77 So. 820. [154 Miss. page 392, 122 So. at page 499].

The announcement is made in Maxwell v. Lake et al., 127 Miss. 107, 88 So. 326 (1921), that:

Witnesses are not only to identify the paper which has been signed by the testator, but they are to prove the execution of the will and the capacity of the testator to execute it, and, in the case of their death, their signatures to the will, when proven, are evidence both as to the signing of the will, and as to the capacity of the testator. [127 Miss. at 113, 88 So. at 328],

In Kelker et al. v. Jordan, 228 Miss. 847, 89 So.2d 858 (1956), wherein the witnesses to the will signed as such in a different room from that in which the alleged testatrix lay, at the request of an attorney, who signed the alleged testatrix’ name to the will, made an “X” for her signature, and thereafter the instrument was taken to her bed where she touched the pen, the Court observed, “It is of course immaterial whether she was lying down or sitting up, but it was essential that the testatrix should have executed the will and that the witnesses should have subscribed to it in her presence.” [228 Miss. at 852, 89 So.2d at 860].

Wilson v. Polite, 218 So.2d 843 (Miss. 1969), involved a holographic will, but the following is in point here:

(2) It is a requisite to a valid will that it be executed as prescribed by statute. 94 C.J.S. Wills § 127(1), p. 898 (1956).
(3) No matter how earnestly one may desire and intend to make a will, a paper, although fully intended by the writer to be a will, is ineffective and invalid unless its execution meets statutory requirements.
(4) The purpose of statutes prescribing formalities for the execution of wills is not for the purpose of restricting the power of testator to dispose of his property, but it is to guard against mistakes, impositions, undue influences, fraud, deception, etc., which would divert the property of the testator from those intended by him or her to inherit same. The formalities are for the testator’s protection also, as well as the beneficiaries. [218 So.2d at 849].

Later in the same opinion, the Court said:

The legislature passed the statute advising people how to prepare their wills. It conferred upon the citizens of the State the privilege of devising their property to others than legal heirs, but this power or privilege was conditioned for the protection of the testator and the beneficiaries upon the procedure prescribed by the statute. The legislature said that the person desiring to make a will must follow this procedure. It did not give this Court or any court the right to waive the requirement as announced by said statutes. It did not say that this Court or any court could eliminate from the instrument attempted to be probated any words (and this is especially applicable to holographic wills) in order to do that which the writer had failed to do, to wit: Make a will. [218 So.2d at 855].

The cases cited and quoted from herein-before abundantly hold that the purpose of signing by the attesting witnesses in the presence of the testator is that the testator will know that the witnesses are attesting the testator’s will and not another document; that the witnesses will know the same; these reasons being to avoid imposition or fraud on either the testator or the witnesses by substitution of another will in place of that signed by the testator; and that the witnesses will be reasonably satisfied that the testator is of sound and disposing mind and capable of making a will.

The record reveals that the testator signed the will in a manner approved by the statute, in his home at 181 East Bell Street, in Jackson; that Mr. Mont joy, in the Montgomery-Montjoy law office in the Deposit Guaranty Plaza Building, called the testator by telephone, and then, in his office, became an attesting witness to the document, no effort being shown that his signing was in the presence of the testator, or at a place where the testator could have seen the act of signing had he desired.

The decisions and quotations from decisions herein permit of no conclusion that a witness may attest a will out of the presence of the testator by ascertaining by telephone conversation with the testator, that he had signed that same will, if the testator could know by telephone that it was the same will, and that the testator had testamentary capacity, if, indeed, in such a case, it could be said satisfactorily that the witness knew that he was talking to the testator, and not to another whose voice the witness regarded as that of the testator.

The attestation by Mr. Montjoy did not comply with the statutory requirement that he attest the will in the presence of the testator.

For the reasons assigned, the decree establishing the will is reversed and judgment for the contestants will be entered here.

REVERSED AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: SUGG, Justice, WALKER, Justice,

text:
    Kathleen Fisher BURLEY et al. v. George Wesley KUYKENDALL et al.
    No. 49963.
    Supreme Court of Mississippi.
    Sept. 7, 1977.

      Barrett, Barrett & Barrett, John W. Barrett, Lexington, for appellants.
    Morgan & Morgan, C. E. Morgan, III, Kosciusko, for appellees.
   SUGG, Justice,

for the Court:

This appeal is from a decree of the Chancery Court of Attala County ordering eighty-two acres of land sold for division of proceeds among the owners. The principal question presented by this appeal is whether the complainants’ proof showed clearly that a division in kind could not be made and that a sale would better promote the interest of all parties rather than a partition in kind. We reverse and remand.

The law governing partition of property is well settled in this state and the party seeking to have the sale of land must bring his case clearly within the provisions of Section 11-21-11 Mississippi Code Annotated (1972). In Cox v. Kyle, 75 Miss. 667, 28 So. 518 (1898), we stated:

The common law gave to joint owners of land a right to have a partition in kind, and the right of selling the land and of dividing the proceeds given by the statute, is an innovation upon the common law, and as it takes away from the owner the right to keep his freehold in kind, it must be strictly pursued, and it must appear from the record that an equal division cannot be made, or that a sale of the land will better promote the interest of all parties than a partition in kind. (75 Miss. at 669, 670, 23 So. at 519).

We also held in Shorter v. Lesser, 98 Miss. 706, 54 So. 155 (1910) that:

In considering this case, we will state at the outset that the law looks with favor upon a partition in kind, and with disfavor upon a sale of lands for partition, unless it appears that an equal division cannot be made in kind, or that a sale of the lands will better promote the interest of all parties than a partition in kind. Unless these conditions are fully met, the court has no right to divest a landowner (co-tenant) of his title, over his protest, and order the sale of same. The party seeking to have the sale of the land must bring this case clearly within this statutory provision. He must show conclusively that an equal division cannot be made, or that a sale would be more beneficial, or less injurious, than an actual division. (98 Miss. at 711, 712, 54 So. at 156).

See also, Mathis v. Quick, 271 So.2d 924 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919 (1963); Carter v. Ford, 241 Miss. 511, 130 So.2d 852 (1961); Smith v. Stansel, 93 Miss. 69, 46 So. 538 (1908).

From the above cases it is clear that the party seeking the sale of land for division of proceeds has the burden of proving clearly that a division cannot be made in kind.

In this case, C. M. Fisher owned the eighty-two acres of land in question and died intestate on March 2, 1964. He left as his sole heirs at law his second wife and eight children, four of whom were born as a result of the union with his second wife, and four of whom were born as a result of his union with his first wife. Complainants purchased the five-ninths (B/9ths) interest of the widow and the four children by the second marriage and filed suit against the defendants, who were the children of the first marriage, to have the property sold for division of proceeds.

The land is located within and adjacent to the corporate limits of Kosciusko, with thirty-two acres of the land located within the corporate limits. A public road runs along the northeastern boundary of the land for approximately one-fourth of a mile. The land is hilly, has some merchantable timber on it located primarily on the northern part of the land, and has on it an old house estimated to be worth approximately $100 and two small ponds. A ditch runs from the western boundary in a southeasterly direction to the southern boundary with approximately thirty acres lying across the ditch in the southwest corner of the property-

Complainants introduced four witnesses and a fair analysis of the testimony of these witnesses is that, it would not be impossible to divide the property in kind, but it would be very difficult to divide the property. One witness for the complainants, who had developed four small subdivisions in Kosciusko, testified that the property would have a greater value if it was sold as a unit rather than being divided, but gave no specific reasons for this conclusion.

Complainants each own an undivided five-eighteenths (Visths) interest in the property and the defendants each own an undivided one-ninth (V9th) interest. The defendants stated in their answer that they desired to have their four-ninths (4/9ths) undivided interest in the land set aside to them as a unit. One of the defendants testified that he was not financially able to bid on the property at a sale.

It is difficult for us to conceive of the fact that it is impossible to partite in kind eighty-two acres of land where the owners of the four-ninths (4/9ths) interest are willing to accept their land as a unit and there are only two other owners of the remaining five-ninths (6/9ths) interest.

At least two options are available on remand. First, the defendants’ four-ninths (Vsths) could be set apart to them in kind as a unit and if the complainants desire a sale for division of proceeds of the five-ninths (6/9ths) set apart to them, this could be accomplished under the provisions of Section 11-21-11 Mississippi Code Annotated (1972) which provides in part:

The court may decree the sale of a part of the land and the partition in kind of the residue.

This was the decision in Carter v. Ford, supra, where this Court directed the trial court to set apart to the defendant her seven-fifty-sixths (’/seths) interest in the land, providing owelty, if necessary, and sell the remaining part of the land and divide the proceeds among the other five parties as their interests may appear.

Second, the court could partite the land in kind giving the defendants their four-ninths (4/9ths) interest in a unit and by giving to each of the complainants their five-eighteenths (Visths) interest. Alternatively, the complainants could accept their interest in a unit.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.

WALKER, J., and SMITH, P. J., dissent.

WALKER, Justice,

dissenting:

I respectfully dissent from the holding of the majority that the chancellor was manifestly wrong in finding that the property was not susceptible to a fair division because of its unique factors and that a sale would better promote the interest of all the parties as allowed by Mississippi Code Annotated section 11-21-11 (1972). The chancellor’s opinion, which covers some eight pages, demonstrates that he was thoroughly acquainted with the law and he applied that law to the facts of this case in minute detail, stating:

This Court is of the opinion that the facts as presented in this case substantially distinguish it from the cases cited by the Defendants and that under the statute this property should be ordered sold and the proceeds of the sale divided by the owners of the property rather than ordering the property partitied (sic) in kind.

There is substantial evidence to support each and every finding made by the chancellor in his excellent opinion and it is beyond comprehension how it could possibly be said that he is manifestly wrong in his findings. The chancellor was on the scene and knows the locality much better than the members of this Court. The chancellor also had the opportunity to observe the witnesses and hear their testimony and the determination of the weight and worth to be given their testimony was his, not this Court’s prerogative.

What the majority has done is to sift through the cold-typewritten pages of testimony, disregarding some testimony and giving greater weight to different portions of other testimony and evidence than did the chancellor. This is not the function of an appellate court. We do not sit as chancellors in a case such as this, but sit as a reviewing court and look only to the record to see whether there was substantial evidence to support the chancellor’s finding. In this writer’s view, there not only was substantial evidence to support those findings, but the chancellor properly interpreted the evidence in reaching his decision that the property was not susceptible to partition and that under section 11-21-11 a sale would better promote the interest of all the parties. I would, therefore, affirm the decree as entered by the chancellor.

SMITH, P. J., joins this dissent.

APPENDIX

OPINION

There has come on to be considered by this Court a motion filed by the Defendants seeking to vacate a Decree entered in this Court on August 30,1976, ordering sale for partition of certain land in Attala County, Mississippi, or in the alternative, seeking leave for an interlocutory appeal from said decree of this Court. By letter the Defendants have cited numerous cases which allegedly show that the Order of this Court aforesaid was improper and should be vacated. The Court having considered the cases cited by the Defendants and having given the Complainant an opportunity likewise submit authorities on this subject has considered this matter and is rendering this opinion in connection therewith.

The facts in this case are that a parcel of land containing approximately 82 acres is owned by the Complainants and Defendants as tenants in common with the Complainants together owning %ths interest and with the four Defendants together owning 4/9ths interest. The Complainants filed a Bill for Partition and alleged that the property could not be properly partited in kind and sought the sale of the property for the partition of the proceeds. This 82 acre parcel is a tract approximately one-quarter mile wide East and West and less than one-half mile long North and South. Testimony clearly indicated that 32 acres of this property were in the City, of Kosciusko, Mississippi, but that the other 50 acres were not in the City. Testimony did not reveal which 32 acres of the 82 were in the City. Testimony did, however, reveal that there was a City fire plug located at the Northeast corner of the property. Thus the Court must conclude that the 32 acres in the City is either located along the North end of the property or on the East side reaching to the Northeast corner of the property. A public road forms the East line for about one-quarter mile cutting the Northeast line of the property, so that all the property lies West or South of the road, but the only road frontage is along the Northeast corner. The property is also crossed by a large ditch with about 30 acres in the Southwest corner on the opposite side of the ditch from the rest of the property. Some of the property has good timber on it and there are other small parcels of good timber, but then part of the property consists of some very steep hills that are covered with large rocks and have practically no timber on them. There is one old field adjoining the road that is now growing up in brush. The testimony revealed that the best timber and the only fair sized area of timber, was along the North end of the property. Testimony also indicated that there were some residences and a trailer park nearby and that the property was a potential location for residential development in the future. Jim Peterson, a licensed forester, testified that it would be extremely difficult to fairly divide the property. W. E. Craft, a licensed realtor, testified that it would be almost impossible to divide the property. He also testified that in his opinion a division of the property would reduce the value of each tract over the value of the total at this time. W. Lynn Jordan, a licensed realtor from Holmes County, testified that he thought that the property could be divided and would propose to divide the road frontage and then run a line straight from the road to the West boundary in order to give the two groups appropriate quantities of land. One of the complainants testified that he did not think the property could be divided and that he thought it would jeopardize his interest to divide it. One of the Defendants testified that he did not want the property sold, but desired to retain the property, or his interest therein. He testified that he had not been on the property much and that his reason for not wanting it sold was that he would not be in a position to bid on it, though he had another party who apparently was in a position to bid on it.

Section 11-21-11 of the Mississippi Code of 1972, provides that:

“If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the Court be satisfied that an equal division can not be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the co-tenants according to their respective interests. . . . ”

The eases cited by the Defendants clearly hold that the Court must find one of the elements called for by this statute before ordering a sale of the property in the first instance. That is the Court must either find that it will better promote the interest of the owners or that it can not be fairly divided. The Defendants in support of their motion have cited the cases of Dailey v. Houston, 246 Miss. 667, 151 So.2d 919; Shorter v. Lesser, 98 Miss. 706, 54 So. 155; Cox v. Kyle, 75 Miss. 667, 23 So. 518; Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908; and Hogue v. Armstrong, 159 Miss. 875, 132 So. 446. This Court is of the opinion that all of these cases are clearly distinguishable from the case at bar for in each one of those the Supreme Court found that there was no evidence to support a sale. In these cases the Court did not hold that the evidence presented was insufficient to justify a sale, but simply held that there was no evidence. In the Dailey case the Court said there was no evidence introduced to support a sale. In the Shorter case the Commissioners had reported that they could not divide the property and the Court there said there was, “[no] substantial reason why it could not be [divided].” In the Cox case the Court said there was a want of any proof of the necessity or propriety of the sale. In the Dantone case the Court said also that there was no proof in the record as to why the property should be sold. In the Hogue case the Court said, “The petition did not allege, nor did the proof show the existence of any of the statutory requirements authorizing courts to sell in the first instance.” This Court is of the opinion that there was substantial evidence presented in this case as to why the property should be sold rather than divided and that therefore based on the above reasoning, this Court is of the opinion that none of the above cases are applicable to the case at bar.

Defendants also cited the case of Carter v. Ford, 241 Miss. 511, 130 So.2d 852, in support of their motion. In that case the Court held that the lower court had erred in ordering the sale of 216 acres of land. The land in question was either timber land or swamp land with some cultivation and was suitable for timber or pasture. It was also located 8 miles from the Town of Edwards. They also cited the case of Mathis v. Quick, Miss., 271 So.2d 924. In that case the land involved was 76 acres of rural land that was cut by two rivers and a highway with one house and 20 acres of cultivatable land with very little timber on it. There was testimony in that case that the property would be, “ — very difficult to divide — ” and there was further testimony that, “Just does not know how it could be divided.” They held that the Chancellor was wrong in ordering the sale. In doing so, however, they ordered that the widow in this matter be granted the house and sufficient land to equal the value of her interest in the property, and in doing so they seemed to evidence concern for her need to maintain her freehold in their expressly dealing with her need for the residence, though it was not found to be her homestead.

The Court also notes that the Supreme Court of this State has held that each case of this nature must turn on its own facts; Wight v. Ingram-Day Lumber Company, 195 Miss. 823,17 So.2d 196, and in two cases where the Court ordered sales of blocks of land of similar size and in which the Court said, it was hard to see how a trial Court could find that a sale would better promote the interest of the parties or that a parcel of 80-100 acres could not be divided in kind, but in these two cases the Court recognized that though it was hard to visualize examples where this could not be done that they recognized that there was a possibility that under some circumstances it would not be proper to require a division in kind of tracts of land of this size.

The Court having considered these cases and reviewed the evidence presented at the trial is of the opinion that the oral opinion rendered by this Court at the conclusion of the trial was correct and that the Decree of August 30, 1976, ordering the sale of the property should not be overruled. This Court is of the opinion that the facts as presented in this case substantially distinguish it from the cases cited by the Defendants and that under the statute this property should be ordered sold and the proceeds of the sale divided by the owners of the property rather than ordering the property partitied in kind. In reaching this decision the Court has considered the testimony of Mr. Peterson, the forester, who testified that he did not think the property could be fairly divided; the testimony of Mr. Craft wherein he stated that he did not think that the property could be properly divided. Mr. Craft also testified that he thought a division of the property would reduce the value because as the property now existed it was subject to potential development as residential property. Mr. Jordan, the real estate agent who testified, indicated that he was not very familiar with development patterns in this area. He did not seem to havé given too much thought as to potential development of the property. He proposed that the division would be made by dividing the road frontage and drawing a line in a Westerly direction. In view of the testimony of Mr. Peterson that most of the valuable timber is on the North end; in view of the fact that the Northeast corner would certainly be a part of the 32 acres in the City; and in view of the great differences in the value of the rolling timberland on the North end and the very poor quality rock hills on the South end, it would appear to this Court that if such a division were made and owelty were authorized, that the amount of owelty paid to the party receiving the Southern portion of the property, would be so great that it would be in effect forcing that party to sell a major interest in his asset while depriving him of the benefit of competitive bidding if the property is sold. The Court further considered other facts relative to the details of this particular piece of property, having taken the testimony of the witnesses as they described and having considered the two aerial photographs that were introduced to identify testimony of witnesses as to location and the general lay out of the land. Having considered this evidence the Court agrees with the testimony of Mr. Craft and Mr. Peterson that the property could not be properly divided. The Court is of the opinion that there would be too many factors that would have to be considered in valuing the property; first the great variations in timber value on the property; second the fact that 32 acres of property is in the City, and the balance is not, with the 32 acres either having to come off the North end or having to come out of the Northeast corner; third, the great variation in the value of the rolling land and the very steep rock hills; fourth, the fact that 30 acres of the land is separated from the rest by very deep ditch which would create a most substantial obstacle to any potential development of the property; five, the location of the road which adjoins only a small portion of the property on the Northeast corner, and in order to divide the property so as to give each an appropriate amount of road frontage, would be virtually impossible when you consider the other valuation factors. The Court is further of the opinion that it would better promote the interest of the owners to have the property sold. This is not 82 acres of rural land as was dealt with in the Mathis Case and the Carter Case, but this is 82- acres which is partially in the City of Kosciusko and which has in its value a potential for residential development. Two real estate agents who have looked at the property agreed that this was the best use for the property in determining its value. Normally a 40 to 50 acre block of property would be satisfactory for residential development, but in this instance we do not have simply a normal 40 to 50 acre block of land. We have a parcel with many other limitations; the location of the road; the limited amount that is in the City with City services available; the substantial variations in terrain types; the fact that in order to divide the property so as to avoid an enormous amount of owelty, the property would have to be cut up so that each would receive a portion of the 30 acres that is Southwest of the ditch, as well as part of the road frontage and part of the timber on the North. With the property cut up in that nature, it would be so chopped up that it would not be feasible for subdividing in view of the problems of crossing the ditch, the problems of the rock hills, and the narrow strips of land that would have to be allocated to the owners in order to fairly distribute the value. This Court having considered this evidence agrees with the testimony of Mr. Craft, that such a division would substantially reduce the value of the property to the owners as compared to the value if it were sold as an entire tract. In addition, this Court does not find that one of the owners has a great need to retain his land as in the Mathis Case where the Court wanted to be sure that the widow maintained her residence, for here none of the owners have any substantial need to retain the land; none of the owners have made any use of the land in recent years; none of the owners have any immediate demands for it. It is simply property in which four of them inherited an interest and which the other two owners purchased their interest from other heirs. The Court therefore reaffirms its earlier ruling that the property is not susceptible to a fair division because of the unique factors involved with this 82 acres and its earlier ruling that a sale would better promote the interest of all the parties and overrules the motion to vacate the Decree of this Court dated August 30,1976.

The Court has further considered the motion for permission to file an interlocutory appeal. In view of the prospects of an appeal of this matter, it would appear to the Court that potential bidders at the sale called for by the Order of August 30, would be very hesitant to bid knowing that their acquisition would be subject to delay brought about by the appeal process. The Court therefore finds that it would be to the best interest of all parties to authorize this interlocutory appeal to finally resolve the matter of whether the property should be sold, before conducting the sale and the motion of the Defendants for permission to file an interlocutory appeal is hereby sustained.

This opinion rendered this the 22nd day of September, 1976.

      . See appendix.


text:
    Sarah F. BASTARI a/k/a Sarah F. Bastari Jones v. STATE of Mississippi.
    No. 50196.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Joe M. Buchanan, Indianola, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

INZER and SMITH, P. JJ., ROBERTSON, BROOM, LEE and BOWLING, JJ.


text:
    Terry R. LAWSON v. William J. LAWSON.
    No. 50030.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Patricia C. Champagne, Gulfport, for appellant.
    Ladner & Emil, Osear B. Ladner, Gulf-port, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

INZER, and SMITH, P. JJ., ROBERTSON, BROOM, LEE and BOWLING, JJ.


text:
    BROTHERHOOD’S RELIEF AND COMPENSATION FUND v. W. O. JONES.
    No. 49634.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Ward, Martin, Terry, Way & Parker, J. Stanford Terry, Vicksburg, for appellant.
    Ramsey, Bodron, Thames & Robinson, Bobby D. Robinson, Vicksburg, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

Before SMITH, P. J., BROOM and LEE, JJ., and FLOYD J. LOGAN, Commissioner.

AFFIRMED.


text:
    Donald R. FAUST v. FLORIDA GAS EXPLORATION COMPANY.
    No. 49447.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Dale & Upton, Sebe Dale, Jr., Garland D. Upton, Columbia, for appellant.
    Heidelberg, Woodliff & Franks, Kenneth I. Franks, Luther M. Thompson, Jackson, for appellee.
   Appeal from Chancery Court, Jefferson Davis County; J. W. Walker, Chancellor.

Before INZER, P. J., ROBERTSON and BOWLING, JJ., and EDWARD C. PRI-SOCK, Commissioner.

AFFIRMED.


text:
    Carol Janette SHIPP v. ENLARGEMENT OF CORPORATE LIMITS OF TAYLOR, Mississippi.
    No. 49609.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Robert E. “Jack” McCormick, Terry B. Morris, Oxford, for appellant.
    F. Edwin Perry, Oxford, for appellee.
   Appeal from Chancery Court, Lafayette County; William H. Anderson, Chancellor.

Before INZER, P. J., ROBERTSON and BOWLING, JJ., and EDWARD C. PRI-SOCK, Commissioner.

AFFIRMED.


text:
    Claude ALEXANDER v. STATE of Mississippi.
    No. 49890.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    J. Steve Chustz, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

AFFIRMED.


text:
    Sue HOWARD v. PAUL’S NORTHSIDE RESTAURANT, INC. and Fireman’s Fund Insurance Companies.
    No. 49628.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

Carnathan & Davidson, Douglas M. Wright, Tupelo, for appellant.

Daniel, Coker, Horton, Bell & Dukes, Jackson Henderson Abies, III, Steve Hazard, Jackson, for appellee.

Before SMITH P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Tommie Lee GREEN v. STATE of Mississippi.
    No. 49910.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    William 0. Semmes, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Roosevelt EASTERWOOD v. STATE of Mississippi.
    No. 50281.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    John DAVIS v. STATE of Mississippi.
    No. 50290.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Brunini, Everett, Beanland & Wheeless, Robert R. Bailess, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Patricia LITTLE a/k/a Patricia M. Johnson v. STATE of Mississippi.
    No. 50090.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Roger D. Harris, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Charles BLACKLEDGE v. STATE of Mississippi.
    No. 50070.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Bullard & Gee, Robert W. Gee, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Robert KEELEY and Charles French v. ESTATE of William McDANIELS, by Shirley Martin Fields, Admrx.
    No. 50094.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Donald W. Bond, Winona, for appellant.
   Appeal from Chancery Court, Grenada County; Kermit R. Cofer, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    Andrew RHODIS and Richard V. Gaines v. STATE of Mississippi.
    No. 49853.
    Supreme Court of Mississippi.
    Sept. 14, 1977.

      George M. Simmerman, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Andrew Rhodis and Richard V. Gaines were convicted in the Circuit Court of Jackson County of armed robbery. Rhodis was sentenced to ten years imprisonment, Gaines to eight years.

On appeal, appellants argue that the verdict was “contrary to the law” and “contrary to the evidence.” The record of the evidence given at the trial has been examined and carefully considered and appellants’ contentions are without merit. While irrevocably conflicting in several particulars, the evidence of guilt given at the trial was strong and was fully capable of supporting the verdict finding appellants guilty of armed robbery returned by the jury as triers of facts. The trial court properly denied appellants’ motion to direct the jury peremptorily to find them not guilty.

Appellants next assign as error, requiring reversal, the refusal of the trial court to give two instructions requested by them dealing with the law of self-defense. Each of the two instructions contains an incorrect statement of the law of self-defense and, moreover, there was no evidence capable of supporting a theory that appellants had acted in self-defense.

The other assignment of alleged error is that appellants were prejudiced by the giving of the “Allen Charge.” Allen v. United States, 164 U.S. 492,17 S.Ct. 154, 41 L.Ed. 528 (1896). We are unable to pass upon this contention, however, because the only information with respect to the alleged giving of it appears in the briefs of counsel. The official record is silent as to the giving of any such charge. The alleged charge itself is not in the record, nor do the circumstances under which it is claimed to have been given appear in the record. It is now argued that appellants were entitled to have the record supplemented or amended to include these items. They did not follow any authorized procedure to accomplish this, and did not avail themselves of their opportunity to pass upon the correctness and completeness of the record or of the methods available to them to correct errors and supply omissions in the record. See Mississippi Code Annotated section 9-13-35 (1972).

Mississippi Code Annotated sections 99-17-41 and 99-17-43 (1972) provides for bills of exceptions which may be employed to have included in the record matters which may be regarded as competent and relevant which would not otherwise become a part of the record. In this case, no bill of exceptions was filed or requested.

The trial took place on April 28, 1976. Appellants were sentenced on May 28,1976. The first objection to the so-called “Allen Charge” alleged to have been given by the trial judge, if it can be called that, was made by the appellants on May 31, 1976, in a motion for a new trial. The objection came too late for this particular question to be raised in that manner and for the first time and, in addition, none of the assertions contained in the motion were supported by any evidence and no evidence was offered as to the circumstances alleged to have existed at the time of the giving of the “Allen Charge,” nor as to the alleged contents of the charge. Another motion two and one-half months later also suffered from the same defects. This Court can consider only matters which appear in the official record of the case. Diddlemeyer v. State, 234 So.2d 292 (Miss.1970); Wilkinson v. Steele, 207 Miss. 701, 43 So.2d 110 (1949); State v. Cummings, 203 Miss. 583, 35 So.2d 636 (1948).

No prejudicial error being disclosed by the record the convictions and sentences are affirmed.

AFFIRMED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    Mary K. WHITEHEAD v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 49715.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Anna C. Maddan, Jackson, for appellant.
    Stephen L. Platt, Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from a judgment of the Circuit Court of Madison County. It affirmed a decision of the Board of Review of the Mississippi Employment Security Commission which denied Mrs. Mary K. Whitehead unemployment benefits.

The appellant, Mrs. Whitehead, was denied unemployment compensation benefits when Cornwall Corporation of Canton, Mississippi, went into bankruptcy ending her employment as well as that of other employees.

The appellant was employed by Cornwall as a production worker from 1973 until July 3, 1975, at which time she notified her supervisor that she was leaving work to have a baby. The maternity leave was approved and the appellant was advised by her supervisor as follows:

Q. She was a supervisor? Did she okay this leave for you?
A. She took it down on a piece of paper for the maternity leave, she knew I was going on maternity leave.
Q. Did she tell you that there would be a place for you when you came back?
A. Yes, she told me when I picked up my last check, she told me that she would be looking for you. (sic)
Q. She told you that she would be looking for you, and then, before you got back, the company closed down?
A. Yes sir.
Q. Have you tried, well, when did the doctor approve your ability to go back to work?
A. September the 25th.
Q. And since September the 25th, have you tried to find employment?
A. Yes sir.
Q. And have you been able to do so?
A. No sir.

Was appellant’s employment terminated by the maternity leave or the bankruptcy of her employer? No claim is pressed for benefits during the interval of the maternity leave. We are of the opinion that the issue is disposed of by Smith v. Mississippi Employment Security Commission, 344 So.2d 137 (Miss.1977), an almost identical case, wherein we approved the following:

“Hence the fundamental and underlying cause of Mrs. Middleton’s unemployment following her application for reinstatement was not her prior condition of pregnancy but the then existing unavailability of work on the part of the employer, and it was only at this time that she ‘left (her) employment’ and accordingly, such leave was for ‘good cause connected with (her) employment.’ (Id. at 526, 211 So.2d at 636)”

(344 So.2d at 140)

We held:

. . . In this opinion, we hold only that Mrs. Smith’s employment continued during her pregnancy, by virtue of an explicit agreement with her employer that she would be on leave of absence for three months and that she would have a job when she returned at the end of that period. Had she quit work without any such agreement, as in Luke and Corley [Luke v. Miss. Employment Security Comm., 239 Miss. 292, 123 So.2d 231; Miss. Employment Security Comm. v. Corley, 246 Miss. 43, 148 So.2d 715], she would be deemed to have left work voluntarily. In this case, Mrs. Smith and her employer agreed to continue her employment during her pregnancy. Her employment was terminated involuntarily at the end of her leave of absence because of the reduction in her employer’s work force. Thus, the Commission clearly erred in holding that she left work within the meaning of the statute at the beginning of her pregnancy leave.

(344 So.2d at 140-141)

We conclude the appellant is entitled to unemployment benefits because her employment was not severed by the maternity leave. In view of this conclusion we do not reach the other assignments of error.

REVERSED AND RENDERED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    George Nedon FAIRLEY, Jr. v. STATE of Mississippi.
    No. 49962.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    See also Miss., 343 So.2d 483.
    Roger Dean Harris, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

George Nedon Fairley, Jr., Bennie Frank Davis, L. J. Fairley and Samuel Perry were indicted in the Circuit Court, First Judicial District of Harrison County for the murder of Mabel Johnson. George Fairley, the appellant, and Davis, half-brothers, were jointly tried on April 29, 1976. The trial resulted in Davis pleading guilty to manslaughter and being sentenced to five years in the penitentiary. Fairley was found guilty by jury verdict and sentenced to life imprisonment.

Mildred Perry testified that on December 20, 1975, she, Davis, George Fairley, L. J. Fairley and her brother Nathaniel Perry, met at the Fairleys’ home and decided that George would kill Mabel Johnson. They left in an automobile driven by Davis and stopped for George Fairley to purchase a gun and L. J. Fairley some ammunition.

They then drove in search of Mabel Johnson and upon discovering her crossing a street, George Fairley ordered Davis to pull over and left the car with a gun. Both L. J. Fairley and Nathaniel Perry, who also were armed, and Mildred Perry got out of the car. When George Fairley approached Mabel, she said, “I thought I told ya’ll not to come on the front. If you are going to do anything to me, do it to me now.” When they were about ten feet from each other and as Mabel was reaching into her shoulder purse, which hung at hip level, George shot her exclaiming, “I done killed that bitch.” They left the scene and discarded the weapon. The following day George Fairley and Mildred Perry surrendered to the authorities after hearing Davis was in jail.

Willie Bridges, an on-scene witness, testified he heard the shot and saw Mabel fall. He stated that he observed George Fairley and another standing at the scene with what appeared to be shotguns and then leaving in a car. Bridges picked up a purse where the shooting occurred and discovered that it contained what appeared to be a butcher knife which he gave to Mabel’s brother.

The coroner testified that the victim died of gunshot wounds to the chest which had been penetrated by fifteen pellets. There were powder burns around the edge of the wound indicating the gun was fired at close range.

James Wilson, a prospective witness for the state, was not found although he was twice subpoenaed. The state called Albert Fountain, a deputy sheriff, to the stand who testified on rebuttal that he had conversed with Wilson at the scene and Wilson told him the following:

Q. . Who gave you that description?
A. I think it was Mr. Wilson.
Q. Did Mr. Wilson give you the information as to the driver of the car?
A. He said possibly Bennie Frank Davis.
Q. Did he tell you who was riding with him?
A. He said it looked like one of the Fairley boys, it looked like George Fair-ley.

The attorneys for the defendants objected to this testimony on the grounds it was hearsay and, when it was overruled, moved for a mistrial. The court overruled the motion and offered to instruct the jury to disregard any hearsay testimony given by the witness. Defense counsel refused stating, “No, I don’t think it’s necessary to reinforce this in the minds of the jury.”

After, both sides had rested, but before final argument and out of the jury’s presence, Davis pleaded guilty to manslaughter and was later sentenced to five years imprisonment. When the jury returned, the court instructed it that a motion for severance had been sustained and Davis was no longer a part of the case. No mention was made that he had pleaded guilty to manslaughter.

Fairley’s cause was submitted to the jury which returned a verdict of guilty and he was sentenced to life imprisonment as previously mentioned.

He assigns as error the following:

1. The trial court erred in not granting a severance because a fundamental conflict would have arisen in having one defendant testify in behalf of the other.

2. The trial court erred in failing to grant a mistrial when the district attorney elicited prejudicial hearsay statements from one of its witnesses.

The appellant acknowledges that if a motion for severance is made after arraignment, the decision thereon is within the sound discretion of the trial judge, citing Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950). This is in accord with established law. Johnston v. State, 232 Miss. 102, 98 So.2d 445 (1957), and Malone v. State, 71 Miss. 812, 26 So. 968 (1900). He argues, however, there were circumstances attending this case from which the denial of a severance was totally prejudicial to the appellant. He contends the Sixth Amendment to the Constitution of the United States guarantees a defendant the right to compulsory process in order that a defendant may obtain his witnesses and that the right to establish a defense by the presentation of witnesses is a fundamental element of due process of law, citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920,18 L.Ed.2d 1019 (1967). From this premise the argument is made that the appellant had the right to call Bennie Frank Davis as a witness in his behalf, but had he done so, a fundamental conflict would have arisen between the two because Davis had a constitutional right to remain silent and therefore could not be compelled to testify in behalf of the appellant. It is then stated that the appellant could not enjoy the fruits of his Sixth Amendment right to a witness so long as Davis was a codefendant because he could refuse to testify under his constitutional privilege. From this dilemma of constitutional privileges it is contended the only logical solution was a severance at the beginning of the trial.

We are of the opinion that the trial court did not abuse its discretion in denying the severance. In reaching this conclusion, we observe the motion for severance was not timely and the present argument is one of conjecture because Davis was not offered as a witness and necessarily did not plead the Fifth Amendment and moreover, there was no proffer of his evidence. The trial court was confronted with the same abstract theory. Under these circumstances we are of the opinion there was no abuse of discretion in denying the severance.

The next argument is focused upon problematical prejudice arising from the severance granted at the conclusion of the trial but before final argument when Davis pleaded guilty. Such a sudden turn on the part of the trial judge, it is contended, was prejudicial because it created a situation where it was impossible for Davis to plead guilty without prejudicing the jury against the appellant and placed his counsel in a difficult position. In elaboration it is argued the attorneys were faced with the insurmountable task of exculpating one of the defendants while avoiding the possible inculpation of the other, the ultimate result being that counsel was inhibited in their defense of appellant. We observe that the jury was advised only of the severance and therefore, had no knowledge of Davis’ plea. We conclude, as we think we must, that no prejudice resulted to the appellant from this turn of events which would require reversal. Indeed, we doubt there was any prejudice at all.

The next assignment is directed to prejudicial and hearsay testimony elicited by the state’s attorney. The record clearly discloses that defense counsel provoked the questions by the district attorney because he first interrogated Fountain, the state’s witness, at great length on the same subject. In this posture the hearsay testimony responsive to the district attorney’s questions was not error. Stone v. State, 210 Miss. 218, 49 So.2d 263 (1950), and Barnes v. State, 164 Miss. 126, 143 So. 475 (1932).

The trial court in ruling on the motion for a mistrial commented that defense counsel precipitated the questions and offered to instruct the jury to disregard the hearsay answers, but this offer was rejected by the defense counsel. We are of the opinion from the overall circumstances that no prejudicial error emanated from the hearsay testimony.

A detailed review of this record reveals premeditated murder supported by abundant and unequivocal testimony and a fair trial absent prejudicial error. The conviction and sentence are affirmed.

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . The murder was apparently one of revenge ants’ sister by Mabel Johnson. arising from the previous slaying of the defend-


text:
    Henry BELL v. STATE of Mississippi.
    No. 49948.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Edwin C. Hardin, Leakesville, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Greene County; Darwin M. Maples, Judge.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Shirley Coleman DEMPSEY v. Trent COLEMAN, Mrs. T. L. Coleman and Mrs. R. L. Britt.
    No. 49638.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Webb Franklin, Greenwood, for appellant.
    Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Cleveland, for appellee.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Patricia Malone BYNUM v. Christine O’Mary MALONE et al.
    No. 50303.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Bearden & Bearden, W. E. Bearden, III, Columbus, for appellant.
    Threadgill & Smith, Gary L. Geeslin, Columbus, for appellees.
   Appeal from Chancery Court, Lowndes County; Lenore L. Prather, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

REVERSED AND REMANDED.

INZER, SMITH, P. JJ., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    Harvey D. HAMILTON and M. L. Farris v. Raymond POTEET and Donald R. McGill.
    No. 49479.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Billy J. Gilmore, Lexington, for appellant.
    Barrett, Barrett & Barrett, Pat M. Barrett, Jr., Lexington, for appellee.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes, Judge.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    John Thomas HORNE v. Diemut HORNE.
    No. 49554.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Dannye L. Hunter, Forest, for appellant.
    O. B. Triplett, Jr., Forest, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Clarence DeWEESE v. Elzey J. ARLEDGE and Kethel L. Barrett.
    No. 49607.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Alford, Mars & Thomas, Herman Alford, Clayton Lewis, Philadelphia, for appellant.
    Snow, Covington, Temple & Watts, T. Kenneth Watts, Meridian, Thornton & Dor-rill, George L. Dorrill, Kosciusko, for appel-lees.
   Appeal from Circuit Court, Neshoba County; Roy Noble Lee, Judge.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER and BROOM, JJ., concur.

LEE, J., took no part.


text:
    BENEFICIAL MANAGEMENT CORPORATION OF AMERICA et al. v. Hubert H. RAY.
    No. 49620.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Bryan, Nelson, Allen & Schroeder, John F. Bryan, III, Pascagoula, Butler, Snow, O’Mara, Stevens & Cannada, W. Scott Welch, III, Jackson, for appellants.
    Pritchard, Myers & Gordon, Robert A. Pritchard, M. Glenn Barlow, Pascagoula, for appellee.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH P. J., and SUGG, WALKER, BROOM and LEE, JJ.


author: MICHAEL SULLIVAN,

text:
    Willie Edward WARN v. STATE of Mississippi.
    No. 49852.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Sims & Sims, C. Darrell Reeves, Jr., Richard E. Burdine, Columbus, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., BROOM and LEE, JJ., and SULLIVAN, Commissioner.
   MICHAEL SULLIVAN,

Commissioner for the Court:

Rape was the offense for which appellant, Willie Edward Warn, was tried and convicted in the Circuit Court of Lowndes County, Mississippi. He appeals from a judgment requiring him to serve thirty years imprisonment. We affirm.

No purpose would be served by setting out the facts in this case. Suffice it to say that the appellant’s sole contention is that the trial court’s denial of peremptory instruction to return a verdict of not guilty was error. The basis of appellant’s argument is that the prosecutrix did not resist with reasonable force.

' Peremptory instructions should be refused if there is enough evidence to support a verdict. There was.

The law regarding peremptory instructions in Mississippi is stated in Cochran v. State, 278 So.2d 451, 453 (Miss.1973):

The rule in regard to a peremptory instruction is the same in criminal and civil cases, the rule being that when all the evidence on behalf of the state is taken as true, together with all sound or reasonable inferences that may be drawn therefrom if there is enough to support a verdict of conviction, the peremptory instruction must be denied.

See Newton v. State, 321 So.2d 298 (Miss. 1975); Daniels v. State, 312 So.2d 706 (Miss. 1975); Norman v. State, 302 So.2d 254 (Miss.1974), cert. den. 421 U.S. 966, 95 S.Ct. 1956, 44 L.Ed.2d 453 (1975); Fields v. State, 293 So.2d 430 (Miss.1974).

The basic rule was recently restated in Rich v. State, 322 So.2d 468, 469 (Miss.1975), where this Court quoted the following passage from Roberson v. State, 257 So.2d 505 (Miss.1972):

We have repeatedly pointed out that the trial judge in passing upon a motion for a directed verdict or peremptory instruction must assume that all evidence for the State is true, and must assume that all reasonable inferences that may be drawn from the evidence by the jury of reasonable men, is true, and if from all the testimony, there is enough in the record to support a verdict, the motion for a peremptory instruction should be overruled. Redwine v. State, 149 Miss. 741, 115 So. 889 (1928). (257 So.2d at 507).

In McGee v. Coccaro, 261 So.2d 465 (Miss. 1972), this Court said:

It is uniformly held that in determining whether a peremptory instruction should be given, or a motion notwithstanding the verdict should be sustained, the court must look solely to the testimony on behalf of the party against whom the motion is made, and consider that testimony as true, together with all reasonable inferences which could be drawn therefrom. And even when the evidence is such that a judgment for the adverse party would have to be set aside as being contrary to the overwhelming weight of the evidence, it does not follow that a directed verdict should be granted. Deh-mer v. Hederman, 252 Miss. 839, 173 So.2d 924 (1965), 252 Miss. 839, 175 So.2d 136 (1965). This rule was reaffirmed in Logan v. Thomas, Miss., 259 So.2d 480, decided March 13, 1972.

When this rule is applied to this case, it is clear that it was not error to deny the peremptory instruction.

We therefore affirm the judgment in this case.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . Sitting pursuant to Chapter 430, opinion of the Court. Laws of 1976. The above opinion is adopted as the