author: JOHN C. LOVE, Jr.,

text:
    U. S. JOACHIM v. VILLA SANTINI, INC., a corporation, and James M. Parker.
    No. 49768.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Pringle & Pringle, Charles K. Pringle, Biloxi, for appellant.
    David L. Lord, Biloxi, for appellees.
    Before PATTERSON, C. J., ROBERTSON and SUGG, JJ., and LOVE, C.
   JOHN C. LOVE, Jr.,

Commissioner for the Court:

U. S. Joachim filed suit in the Chancery Court of the Second Judicial District of Harrison County seeking to have Santini Lane or Santini Court in the City of Biloxi, declared a public street and seeking to enjoin Villa Santini, Inc. and James H. Parker from interfering with the public use of San-tini Lane or Santini Court. When complainant rested, defendants moved to exclude the evidence and dismiss the Bill of Complaint. This motion was in effect sustained and appellant being aggrieved by the dismissal of his action filed this appeal.

Evidence for Joachim showed that Santi-ni Lane is a narrow dead-end street at least 400 feet in length, with a cul-de-sac or turn-around on the south end of the street. The southern portion of the street and the cul-de-sac are located on the property of the appellees. There was evidence that the street with the cul-de-sac on the south end had been in the same location since 1925, and that the appellees and their predecessors in title had not interfered with anyone’s use of the street until 1975, when the appellees began to block the street.

Several witnesses testified that for many years Santini Lane, including the turnaround on appellees’ property, had been used by the general public. An employee of the City of Biloxi testified that the city garbage truck had been using Santini Lane, including the turn-around for the 26 years that he had worked for the city and that the city had maintained the lane, including the cul-de-sac, during this period. There was also testimony that the city had paved this entire lane, including the cul-de-sac, and the Court found that the northern portion of the Lane that was not on the property of the appellees, was a public street, though it had sustained the motion to exclude all of appellant’s evidence. The record does not show when or under what circumstances Santini Lane was first used. It simply shows a continuing use by the public from 1925 until 1975.

The Chancellor can sustain a motion to exclude and dismiss only when the Complainant has failed to make out a prima facie case. “In ruling thereon, the Chancellor should assume as true all of the facts which the complainant’s evidence fairly tended to establish, together with all reasonable inferences to be deduced therefrom.” U. S. Realty Sales, Inc. v. Kuhn, et al., 206 Miss. 123, 39 So.2d 776 (1949). Therefore, the issue before this Court is whether the Chancellor was in error in sustaining defendants’ motion in view of the facts presented by the Complainant.

It is well settled in this State, that a public road can be established by prescription. Rylee v. State, 106 Miss. 123, 63 So. 342 (1913), and Coleman, Atty. Gen. et al. v. Ship, 223 Miss. 516, 78 So.2d 778 (1955). In the case of Armstrong et al. v. Itawamba County, 195 Miss. 802, 16 So.2d 752 (1944), the Court said, “. . , and it was this user and the action of the public authorities in exercising such jurisdiction over the road for so many years, that gave it the status of a public road . . . .” 195 Miss. at 814, 16 So.2d at 756. And the Court also said, “Continued user when taken in connection with the working of the road for nearly twenty years at public expense should be deemed to have been a sufficient acceptance.” 195 Miss. at 816, 817, 16 So.2d at 757.

The defendants here argue that the Complainant had the burden of establishing that the use of Santini Lane commenced as an adverse use and not as a permissive use, but we conclude that the law in this State is to the contrary. In the case of Itawamba County v. Sheffield, 195 Miss. 359, 13 So.2d 649 (1943), this Court said that the landowner, in a case similar to this, had the burden of proving that the initial occupancy by the county was permissive and in the case of McCain et al. v. Turnage, 238 Miss. 44, 117 So.2d 454 (1960), where the evidence showed that the Complainants had been using the easement for at least 50 years, the Court said, “. . . such use will be presumed to have originated adversely.”

Thus, based on these authorities, where the evidence showed that Santini Lane, including the turn-around, had been used by the public as a street in its present location for over 50 years, and that the City had maintained the street in excess of 20 years and had paved the street, we are of the opinion that the Complainant has made a prima facie case that the street had become a public thoroughfare by prescription.

It is, therefore, the opinion of this Court that the Chancellor was in error in sustaining the motion of the appellees to dismiss the Bill of Complaint. The decree of the lower court must, therefore, be reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

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.


source: Caselaw Access Project

license: Public Domain

text:
    Larry J. TARNABINE v. Sharon Ballard HENDERSON et al.
    No. 49733.
    Supreme Court of Mississippi.
    Jan. 4, 1978.
    Bullard, Campbell & Gee, R. W. Gee, Vicksburg, for appellant.
    Dyer, Dyer & Dyer, Howard Dyer, III, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Ernest Kellner, Chancellor.

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

AFFIRMED.


text:
    Henry BROWN v. STATE of Mississippi.
    No. 49656.
    Supreme Court of Mississippi.
    Jan. 4, 1978.
    Fraiser & Burgoon, James W. Burgoon, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., and JACK B. WEL-DY Commissioner, concur.

BOWLING, J., took no part.


author: LEE, Justice,

text:
    GEORGIA-PACIFIC CORPORATION and Robert Levins v. Dick BLAKENEY.
    No. 50141.
    Supreme Court of Mississippi.
    Jan. 4, 1978.

      L. D. Pittman, Raleigh, for appellants.
    E. Howard Eaton, Taylorsville, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appel-lee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Smith County entered judgment in favor of Dick Blakeney against Georgia-Pacific Corporation and Robert Levins in the sum of forty-five thousand dollars ($45,000) and Georgia-Pacific and Levins appeal.

Appellants assign the following errors in the trial below:

(1) The court erred in overruling appellant’s motion to transfer the case to the chancery court.

(2) The court erred in not directing a verdict for appellants.

(3) The verdict of the jury was contrary to the overwhelming weight of the evidence and was so excessive as to evince bias, passion and prejudice on the part of the jury.

(4) The trial court erred in granting Instructions Nos. 1, 3, 12, and 13 over the objection of appellants.

Blakeney was a logging contractor for Georgia-Pacific Corporation. On July 23, 1974, he executed a promissory note and security agreement to Smith County Bank securing the purchase of a CD5 Tree Farmer Log Skidder. The note totaled thirty-one thousand eight hundred five dollars twenty-eight cents ($31,805.28) and was repayable in thirty-six (36) monthly installments of eight hundred eighty-three dollars forty-eight cents ($883.48) beginning September 1, 1974. Georgia-Pacific guaranteed the note and agreed with Blakeney that the monthly installments would be withheld from his weekly checks on a per thousand board feet of logs hauled each week. The money would be deposited in a checking account by Georgia-Pacific in the Smith County Bank, which account was entitled “Dick Blakeney Loan Account,” and the proceeds would be credited to the monthly payments by the bank as they became due.

In October, 1974, the president of Smith County Bank notified Blakeney that his note was delinquent. Robert Levins, Forestry Supervisor of Georgia-Pacific, informed Blakeney that, because of a bookkeeping error, payments had not been withheld. Georgia-Pacific paid the three (3) installments due September 1, October 1 and November 1, 1974 on the 24th day of October, 1974.

During the month of April, 1975, with the permission of Georgia-Pacific, appellee logged a tract of land other than that on which he had a logging contract, because of extreme weather conditions. His equipment was on the job and he was working with another contractor who had similar equipment and a similar contract with Georgia-Pacific. On April 13, 1975, appel-lee’s wife became ill and he remained with his wife at the hospital during the last week in April. The skidder was working on the job with the other contractor. Blakeney last saw his skidder on April 25, 1975, at which time, according to his testimony, it was in good condition, except for a low tire. On April 30, 1975, Robert Levins took possession of the skidder and placed it under a shed at Georgia-Pacific’s plant in Taylors-ville, Mississippi. Appellee discovered on May 2,1975, that Georgia-Pacific had taken his skidder and on May 26, 1975, he demanded return of the skidder, which appellants declined to do. On June 6,1975, Georgia-Pacific paid the Smith County Bank the full amount of the indebtedness guaranteed on the note and security agreement and received an assignment from the Smith County Bank of said instruments.

I.

Did the court err in denying appellant’s motion to transfer the case to the chancery court?

Appellants contend that Blakeney was in default on the first three monthly payments which appellants failed to withhold and pay to the bank for September, October and November, 1974. Blakeney testified that the three installments were added on the end of the indebtedness and that he was not in arrears on same. The Smith County Bank did not consider the account to be delinquent, according to its president, and did not notify Georgia-Pacific of the delinquency until May 26, 1975, at which time it called upon Georgia-Pacific to pay the note.

Appellants claim that the skidder was in a bad state of repair, was exposed to the weather and that one reason for taking possession of same was to protect the security, while Blakeney claims that the skidder was in a good state of repair and that it was on the job site when taken by appellants. The suit was instituted in the circuit court on the theory of conversion and properly so. If there had been no issue as to default, either from failure to make installment payments or failure to preserve the security, there would be a question of law as to whether or not the circuit court should have transferred to the chancery court. The facts were in dispute, and these were proper issues to be determined by the jury.

A declaration setting forth a cause of action based on the tort theory of conversion is an action at law, and is to be pursued in the circuit rather than chancery courts. See 18 Am.Jur.2d Conversion § 135, at 239 (1965):

“Although in some respects an action for conversion has been regarded as partaking of the nature of a suit in equity, or as an action in which it is competent to investigate and determine the equity of the case, it has been stated to be strictly a legal action. In any event, a mere equitable interest in personal property is frequently held not to constitute a sufficient basis for the maintenance of the action.”

See also 89 C.J.S. Trover and Conversion § 89, at 584 (1955):

“Since the action of trover is a creature of the common law and involves the right to trial by jury, it comes under the jurisdiction of the courts of law. Although property of which conversion is alleged is in the custody of a chancery court, an action for its conversion may be brought in a law court, since it does not affect the possession of the property, or interfere with its custody.”

The trial judge correctly overruled the motion to transfer said cause to the chancery court.

II.

Did the court err in declining to direct a verdict in favor of appellants?

The rule, in determining whether a motion for directed verdict should be granted, requires the trial judge to consider the evidence on behalf of the party against whom a directed verdict is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the motion for directed verdict should be denied. (Here the motion for directed verdict actually was a request for peremptory instruction). Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); White v. Thomason, 310 So.2d 914 (Miss.1975); Williams v. Weeks, 268 So.2d 340 (Miss.1972); Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858 (1961); Sumrall Motor Co. v. Creel, 158 Miss. 262, 130 So. 151 (1930).

The evidence for appellants and appellee conflicted sharply in the present case and, applying the foregoing rule, we are of the opinion that a jury question was presented, and the trial judge correctly overruled the motion for a directed verdict.

III.

Was the verdict of the jury contrary to the overwhelming weight of the evidence and was it so excessive as to evince bias, passion and prejudice?

The appellee obtained instructions which informed the jury that it might return a verdict for actual damages and for punitive damages. Evidence of actual damages submitted in the instructions were: (1) humiliation, embarrassment and mental anguish, (2) loss of earnings, (3) loss of personal property which the defendants took from the plaintiff and failed to return, (4) loss of credit standing in the community. As to those elements, the proof for appellee was speculative and sketchy, and questions and • answers were similar to the following:

“Q. What effect, if any, did the taking of this skidder have upon your logging operation?
A. It put me out of business.
Q. What, if anything, happened to the bulldozer?
A. I lost it.
Q. How did you lose it?
A. I don’t have no way of paying for it.
Q. What effect, if any did the taking of this skidder have upon your financial condition?
A. It put me in bad trouble — debt.
Q. What happened when you didn’t pay the bills?
A. I had bill collectors day and night.
Q. What effect, if anything, did this have upon you?
A. It worried me, naturally. It made it pretty hard to live around the house.
Q. What effect, if any, did it have upon your ability to sleep?
A. A lot.
Q. And by that what does it mean, Mr. Blakeney?
A. Well, if you are worried and people are coming to your house all night during — all time during the night wanting money, well, you can’t sleep, can you? If you don’t have the money to pay them.
Q. What effect, if any, did this have on your health?
A. Well, I faint a good bit.”

In conversion, the value of the personal property at the time of the alleged seizure must be shown to prove damages from the loss or deprivation of the property. Although the amount of the note was admitted in evidence, and the counter-claim charged that the value of the skidder was twenty-six thousand dollars ($26,000), the proof is silent as to what the value of the skidder was at the time appellants took possession of same. The jury was not properly instructed as to how it might arrive at a verdict for actual damages, and had no guidelines to follow in fixing damages. The court granted a punitive damage instruction, but the form of verdict did not separate actual damages from punitive damages, and the verdict was a general verdict assessing damages at forty-five thousand dollars ($45,000). There is no way for this Court to know what amount of the verdict was actual damages, if any, or punitive damages, if any. The jury may not have allowed punitive damages and may have fixed the entire damages as actual damages, which is not sustained by the proof. We are of the opinion, from the state of the record, the verdict of the jury is contrary to the overwhelming weight of the evidence and that the case must be reversed and remanded for a new trial. Wayne County Mfg. v. Shirley, 15 So.2d 624 (Miss.1943); Beard v. Williams, 172 Miss. 880, 161 So. 750 (1935).

IV.

Did the court err in granting Instruction Nos. 1, 3, 12 and 13 requested by appellee?

Instruction No. 1 advised the jury that taking possession of another’s property without authority of law is termed conversion. Appellants contend that the question of default was not included in the instruction and that it becomes tantamount to a peremptory instruction. They likewise contend that Instruction No. 13 is a peremptory instruction since it used the words “took the skidder without the consent or permission of Dick Blakeney or without authority of law.” On a retrial of the case, the issue of default should be included in the instructions and the jury should be advised on that question in specific terms.

Instruction No. 3 covered actual damages and Instruction No. 12 covered punitive damages. While we have no way of knowing what the proof may show in a second trial of the case, the parties should make certain that the instructions follow the evidence and are supported by the evidence.

For the reasons stated, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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


author: SMITH, Presiding Justice,

text:
    Joe H. TALLY v. BOARD OF SUPERVISORS OF SMITH COUNTY.
    Nos. 49797-49809.
    Supreme Court of Mississippi.
    Jan. 4, 1978.
    Larry E. Clark, Taylorsville, for appellant.
    L. D. Pittman, Raleigh, for appellee.
    Before SMITH, P. J., and ROBERTSON and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

By agreement of the parties and with the consent of the Court, the above styled thirteen cases, each case involving an attack upon the leasing of certain sixteenth section land by the Board of Supervisors of Smith County, were consolidated on appeal.

The appellant, Joe H. Tally, Superintendent of Education and a citizen and taxpayer of Smith County, filed with the Board of Supervisors his written protests, with supporting exhibits, in each case, alleging gross inadequacy of consideration in each of the proposed leases, and requested a hearing before the Board.

The Board of Supervisors, however, simply ignored appellant’s protests, and entered into the leases to which the objections were on file. The Board took no recorded cognizance of the protests or of the request for a hearing and nothing relating to these matters was entered upon its minutes.

Following this action, or rather, inaction, of the Board, appellant prepared' a bill of exceptions and attempted to have it signed by the President of the Board. He was unable to secure the signature of that official, however, and again was completely ignored. Appellant then sought to appeal to the circuit court but, there being no record of a hearing since none had been held, no bill of exceptions and no order of the Board relating to his objections, or to his petitions for hearings, that court dismissed the appeals without prejudice.

From the scanty records we have before us, which do, however, include copies of the objections and exhibits and of the orders granting the leases, it appears that the consideration for the leases of the lands ranged from twenty cents per acre to eighty-two cents per acre. Appellant’s protests charged with particularity that the considerations in each case were so grossly inadequate as to amount to an unconstitutional donation of public property in violation of Mississippi Constitution 1890, Art. 4, § 95. The protests charged facts, which, if true, sufficiently supported this conclusion.

It is obvious that the Board of Supervisors acted improperly and arbitrarily in ignoring appellant’s protests and in declining his requests for a hearing.

However, in the present posture of the cases, the leases now actually having been executed and the lessees not being parties to these proceedings, the dismissal by the circuit court of the attempted appeals without prejudice must be affirmed. Nevertheless, facts charged in the several protests filed by appellant were sufficient to constitute a direct attack upon the granting of the leases and upon the leases themselves as being void because of the gross inadequacy of consideration which was charged to amount to an unconstitutional donation of public property and to be in violation of the trust under which such property is held. Consequently appellant’s remedy, the leases now having been executed, is by direct attack in appropriate proceedings in the Chancery Court of Smith County, the Board of Supervisors and the lessees being made defendants. Keys v. Carter, 318 So.2d 862 (Miss.1975).

In two of the cases, Numbers 49,805 and 49,808, it appears that the leases were executed after the enactment of Mississippi Code Annotated section 29-3-1 (Supp.1977) (or General Laws 1974, Chapter 341). In those two cases, if it should prove to be true and the procedure required by the above statute was not followed, the leases should be set aside as void on that ground and the subject land be made available for lease as required by the statute. The above statute should prevent a recurrence of the situation which has arisen in these cases.

AFFIRMED WITHOUT PREJUDICE.

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

LEE, J., took no part.


author: INZER, Presiding Justice,

text:
    FIRST NATIONAL BANK OF JACKSON, Mississippi, et al. v. IDS MORTGAGE CORPORATION et al.
    No. 49717.
    Supreme Court of Mississippi.
    Jan. 4, 1978.

      Thompson, Alexander & Crews, Thomas R. Crews, Jackson, for appellants.
    Butler, Snow, O’Mara, Stevens & Canna-da, George H. Butler, Robert C. Cannada, David K. McGowan, Pat H. Scanlon, Jackson, for appellees.
    Before INZER, WALKER and BROOM, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by First National Bank of Jackson from a decree of the Chancery Court of the First Judicial District of Hinds County dismissing its bill of complaint against IDS Mortgage Corporation and others. The appeal involves the priority of deeds of trust on the Jackson Hilton Hotel property in the City of Jackson. The controversy is between the First National Bank of Jackson and IDS Mortgage Corporation, both of whom held deeds of trust on the hotel property. The deeds of trust were executed by Southern Business & Industrial Development Corporation, the owner of the property, prior to its foreclosure under the deed of trust held by IDS Corporation.

The chancellor found from the evidence that on June 2, 1970, Southern Business executed its deed of trust to IDS securing a $2,850,000 construction loan for the construction of the hotel. From June 2, 1970, until September 22,1970, Mississippi Valley Title Insurance Company made disbursements under this loan and guaranteed IDS a first mortgage position. Because Southern Business encountered financial difficulty, construction was halted. On February 10, 1971, Southern Business executed a second deed of trust on the Hilton properties securing an indebtedness of $235,188.80 to the First National Bank. On January 13, 1972, IDS increased its construction loan to $4,050,000 and Southern Business executed its deed of trust securing this indebtedness and on the same date FNB executed a subordination agreement assuring IDS of a first mortgage position.

In late 1972 it became apparent that additional funds would be needed to complete the construction of the hotel, and Southern Business began trying to make arrangements to increase the construction loan as well as to arrange for permanent financing. IDS agreed to increase its loan by $750,000 provided that another subordination agreement was obtained from the bank. When the bank was approached relative to the further subordination agreement, it refused to agree unless it was paid $100,000 on Southern Business’ indebtedness to FNB. Southern Business arranged for this sum to be paid to the bank out of funds provided by IDS and upon the payment of this amount, the bank executed in blank an additional subordination agreement in favor of IDS leaving blank spaces therein for the insertion of the dates, recording data, and amounts. When this subordination agreement was delivered to Mississippi Valley it contained the blank spaces. A secretary filled in the blank spaces, and in so doing she erroneously filled it in with the same data that was in the first subordination agreement.

Thereafter Mississippi Valley disbursed funds to the extent of $4,797,070.81. On each disbursement IDS was guaranteed a first mortgage position by Mississippi Valley. Southern Business made default, and IDS foreclosed its deed of trust and bought the property in at the sale for $5,239,804, being the total amount of its indebtedness and expenses of sale.

The controversy in this case centers around the second subordination agreement executed by the bank. The bank contends that it subordinated its deed of trust only to the extent of $4,050,000 plus interest and attorneys’ fees and expenses and that its deed of trust was and is prior to any lien and claim of IDS in excess of this sum. The bank contends that by the execution of the second subordination agreement it only extended the time of the original agreement and insofar as the bank was concerned, it was absolutely meaningless. The bank contended in the trial court and contends here that parol evidence was not admissible to vary the express terms of the second . subordination agreement. The chancellor overruled the objections to this evidence and admitted parol evidence to show the real meaning of the instrument in question.

A decision in this case hinges on the question of whether parol evidence was admissible to show the meaning of the second instrument. If this evidence was admissible the chancellor was certainly justified in finding from the evidence that the purpose and intent and reason for the execution of the second subordination agreement was to assure IDS of its first mortgage position.

The chancellor found as a fact that the second subordination agreement was executed in blank in favor of IDS. , The chancellor in his opinion said:

There was no denial as to the execution of this blank agreement and a copy of the blank agreement was retained in the FNB file which contained the blank spaces for insertion of the date, the month, the year, and the recording data of the IDS deed of trust to which it was subordinating its deed of trust. When the second subordination agreement was received by Mississippi Valley from Mr. Nix, it did contain blank spaces for said recording date and information describing the additional amount included in the IDS deed of trust. It was developed in the trial that Mississippi Valley had not received the Modification Agreement of January 26, 1973 which had been executed by the parties but had not been placed of record. And thus, no information was available to fill in the blank spaces. Mr. Taylor testified that his secretary filled in these blanks with the only recording data she had which was the date of the data of the IDS deed of trust dated January 13, 1972.

Since the agreement was executed with blank spaces for the recording data and the date of the IDS deed of trust, the parol testimony did not in any way contradict the written instrument as of the time it was signed.

The case of Service Fire Insurance Co. v. Craft, 219 Miss. 18, 67 So.2d 874 (1953), involved a release which the jury could find from the evidence was signed by Craft with blank space as to the amount of the consideration. It was filled in by the insurance agent for an amount that did not cover the full cost of the repair to the automobile in question. The jury found that the instrument did not correctly reflect the agreement of the parties and found for Craft. On appeal the insurance company contended that the proof of loss and release signed by both parties settled and adjusted all questions between the parties as to the extent of the damages and no oral proof was competent to vary the terms of the written instrument and cited several cases in support of this argument. We held that since the instrument was signed with the amount of the consideration left blank, pa-rol proof did not contradict the written instrument as of the time it was signed, and this presented a state of facts different from those involved in decided cases. In so holding, we said:

Parol testimony is competent to show the conditions upon which the writing is to become effective as a contract. 20 Am. Jur., Sec. 1094, p. 955; Butler v. Smith and Tharp, 35 Miss. 457, Oral proof was competent to show that a bond sued on was executed in blank and was filled in contrary to direction.' Richards v. Day, Exctr., 137 N.Y. 183, 33 N.E. 146, 23 L.R.A. 601. The Court in that case said: “If this had been a complete bond when the plaintiff signed it, although by mistake or fraud it did not express the true agreement between the parties, his sole remedy would have been to procure its reformation, and, when an effort was made to enforce the bond against him, he could not contradict the terms thereof by parol evidence, except by proper allegations in his pleading asking for its reformation. But here the plaintiff did not sign any bond. He signed a blank piece of paper, and it would have been sufficient for him on trial to prove that he simply signed a blank piece of paper, and then it would have been necessary for the defendant to show that he authorized the blank to be filled up, and how and under what circumstances the authority was given, and what the authority was. A party who signs a blank piece of paper cannot be bound to the obligation written therein, unless it can be shown that he gave the person who wrote it authority.”
In Campbell v. Davis, 94 Miss. 164, 47 So. 546, 547, this Court admitted parol evidence to show the true indebtedness although such evidence contradicted the note and trust deed the debtor had executed, the Court saying, “The terms of an obligation assumed to be valid, cannot be varied by parol; but it may be shown by parol what caused the party to thus oblige himself.”

(219 Miss, at 25, 26, 67 So.2d at 876, 877).

The chancellor after reviewing the evidence in this case stated:

There are two subordination agreements involved and both are as executed practically the same. To determine the meaning and purpose, it would require of necessity parol evidence as to why the same instrument was executed twice, and the facts surrounding this execution would require parol evidence. The letter of Mr. Nix, an officer of FNB, and the payment of the $100,000 should all be considered along with surrounding circumstances in order to make a determination of the meaning.
Therefore, the Court finds as a matter of law and facts, and it is the opinion of the Court that First National Bank of Jackson completely subordinated all its indebtedness to the lien of IDS, and this cause be dismissed as to First National Bank of Jackson.

When the officer of the bank executed the subordination agreement containing blank spaces therein, it granted implied authority for the instrument to be completed in accordance with the understanding of the parties. The chancellor found that the understanding was intended to subordinate the bank’s deed of trust to the additional advance of $750,000 and the fact that it was erroneously filled in to show the same data as contained in the first subordination agreement did not prohibit IDS from showing by parol testimony the true intention of the parties. Furthermore, since the instrument was not completed at the time it was signed, it was not necessary for IDS to seek a reformation of the instrument, but could show by parol evidence the intention of the parties and the reason for the execution of the instrument.

For the reasons stated, this case must be and is affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Taylor HARDIN, as Commissioner Alabama Mental Health Board, et al. v. FULLILOVE EXCAVATING COMPANY, INC., a corporation.
    SC 2456.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Wendell R. Morgan, Asst. Atty. Gen., Dept, of Mental Health, for appellants.
    Ernest W. Weir, Birmingham, for appel-lee.
   EMBRY, Justice.

This is an appeal from a judgment which issued a writ of mandamus commanding Taylor Hardin, as Commissioner, Alabama Mental Health Board, and Hugh Adams, as Director, Technical Staff, State Building Commission, State of Alabama, to certify to the State Comptroller a warrant in the amount of $15,413.76 for payment to Fulli-love Excavating Company, Inc., a corporation. The trial court issued the writ after finding the money was due Fullilove for site excavation of certain material at the Birmingham Developmental Center of the Alabama Mental Health Board.

There are three issues to be addressed on this appeal:

1. Did the trial court err in not changing the venue of the action from Jefferson to Montgomery County?

2. Were the allegations of the verified answers and responses to the petition for mandamus put in issue?

3. Was certification to the Comptroller for payment of the warrant properly compelled by the writ of mandamus?

This action by Fullilove Excavating Company, Inc., a corporation, against Taylor Hardin, as Commissioner, Alabama Mental Health Board; Hugh Adams, as Director, Technical Staff, Building Commission, State of Alabama; and Wendell R. Morgan, as Assistant Attorney General, Legal Division, Department of Mental Health, State of Alabama, sought to compel, by writ of mandamus, the payment to Fullilove Excavating of the sum of $15,413.76 by the Alabama Mental Health Board. The basis for the relief requested by Fullilove Excavating was that its request for final payment on a contract performed for the Mental Health Board was approved but because of unjustified actions of Hardin and Adams the warrant issued to Fullilove in final payment was $15,413.76 less than the amount previously approved for final payment.

Motions to dismiss were filed by defendants which also challenged the venue of the action and sought transfer of it from Jefferson to Montgomery County. Morgan was dismissed as a party defendant and transfer of the action was denied.

The gist of Hardin’s verified response and answer to the petition for mandamus was that the approved final payment request was reduced by $15,413.76, upon reconsideration, because in Hardin’s judgment and opinion payment of that sum was not in accordance with the terms and specifications of the contract. The gist of Adams’ response and answer was that it was his opinion the Mental Health Department was due to be credited with the sum of $15,-413.76 against the final payment which he had previously approved in behalf of the State of Alabama Building Commission because that sum was in excess of the amount due to be paid according to the contract specifications. Thus the issue raised by the responses and answers, tried before the court without a jury, was: 1. After approval of final payment, including the sum of $15,413.76, could Hardin and Adams interpret, or reinterpret, the contract and specifications and rescind prior approval of payment.

Before addressing the third issue for review on this appeal we will dispose of the first and second.

Venue

Objections to venue were presented in the motions to dismiss. The pertinent parts of Hardin’s and Adams’ motions, and supporting affidavits read as follows:

Hardin’s, from his motion to dismiss:

“1. Venue in this action is improperly laid in the Circuit Court of Jefferson County. Defendant requests that this cause be transferred to the Circuit Court of Montgomery County pursuant to Rule 82(d), Alabama Rules of Civil Procedure. The Defendant is a resident citizen of Montgomery County as testified to by the affidavit submitted with this Motion.”

From the supporting affidavit submitted by Wendell Morgan:

“ * * * I am personally acquainted with the Defendant Taylor Hardin and have been so acquainted for more than five years. Both Taylor Hardin and myself are resident citizens of Montgomery County, Alabama, and have so resided in Montgomery County, Alabama, for more than five years preceding the filing of this Petition for Mandamus. My address is 4747 Falcon Lane, Montgomery, Alabama, 36116. Taylor Hardin’s address is 660 Cloverdale Road, Montgomery, Alabama 36106.”

Adams’, from his motion to dismiss:

“1. Venue in this action is improperly laid in the Circuit Court of Jefferson County. Defendant requests that this cause be transferred to the Circuit Court of Montgomery County pursuant to Rule 82(d), Alabama Rules of Civil Procedure. The Defendant is a resident citizen of Pike County as testified to by the affidavit submitted with this Motion.”

From his affidavit:

“My name is Hugh D. Adams and I am the Director of Technical Staff, State Building Commission, State of Alabama. I am a resident citizen of Pike County, Alabama, and my address is General Delivery, Pine Level, Alabama, 36065.”

No mention is made in either motion, or in either affidavit, of the official residence of Hardin or Adams. This litigation involves acts of each of them in their official capacities, yet their requests for change of venue relate only their place of personal residence. Suits involving public officials are properly maintained in the county of their official residence. Tri-State Corp., Inc. v. State ex rel. Gallion, 272 Ala. 41, 128 So.2d 505 (1961). Although, because of statutory provision providing otherwise there are exceptions to this rule, the rule is generally followed. Boswell v. Citronelle—Mobile Gathering Inc., 292 Ala. 344, 294 So .2d 428 (1974).

We should point out the distinction between this case and that of Alabama Youth Services Board v. Ellis, Ala., 350 So.2d 405 (1977). The motion to dismiss in the record of that case recited:

“To dismiss the action on the ground that it is brought in the wrong county because the defendant board is a public board of statewide jurisdiction, not limited in its field of operation to any county or district, and its principal office is located at the state capital in Montgomery County, Alabama.”

The action was against the Board and the motion properly presented the fact of the location of the^ principal office of that Board. In Ellis this court stated:

“There is a considerable body of law in this state, as there is elsewhere, requiring an action against a state agency or a state official in his official capacity to be brought in the county of official residence. A statement of the general rule appears in 92 C.J.S. Venue § 115, p. 817:
“ ‘A governmental body is generally regarded as having its residence for purposes of venue in the county where its principal place of business is located, or in the place where its domicile is fixed by law . . . (emphasis added)

In this case no showing was made of the official residence of Hardin and Adams, against whom the action is maintained, therefore the personal privilege of venue was waived. Venue is a personal privilege, of that there can be no dispute; indisputably it may be waived. Boudrow v. H & R Construction Co., 284 Ala. 60, 222 So.2d 154 (1969); 77 Am.Jur.2d, Venue § 51, p. 900.

Whether the Truth and Sufficiency of the Answers to the Petition were put in Issue

The essence of the petition in this case was that defendants Hardin and Adams had wrongfully deducted from Fulli-love’s request for final payment of monies, due it for performance of a contract, the sum of $15,413.76 that had previously been approved for payment, and paid, on a partial payment request.

The essence of the answers of Hardin and Adams was that prior payment had been made because the terms of the contract had been misinterpreted by them. Trial was had on the issues made by the allegations of the petition and those of the answers. Evidence was adduced, after which the trial court resolved the issues in favor of Fulli-love.

Hardin and Adams argue that the facts alleged in their answers, which were verified, stood uncontroverted and therefore the writ should have been denied because no pleading was interposed which put in issue the legal sufficiency or truth of their answers. In support they rely on case law and Tit. 7, § 1073, Code, which provides:

“In any such proceeding [mandamus], the return or answer shall not be conclusive, but the truth or sufficiency thereof may be put in issue and controverted.” (emphasis added)

This statute has been construed as permissive, not mandatory:

“ * * * The averments of the answer or return were not put in issue or controverted as relator could have done under our statute, § 1073, Title 7, Code 1940, if it had been so inclined. * * * ”

Further:

“ * * * The sufficiency of the answer to the alternative writ will be considered without further pleading although it is not improper for relator to interpose demurrer or motion to quash the answer. * * * And as shown above, the relator may take issue with and controvert the averments of the answer. * * * ” (emphasis added) Tingle v. J. D. Pittman Co., 267 Ala. 29, 99 So.2d 435 (1957).

In this case there is no question that the allegations of the answers were controverted by the evidence as will be demonstrated from a reading of the findings of the trial court. These findings will be set out later in this opinion. That evidence may be taken to controvert the truth of the answers as well as to test whether, if true, they present a legal bar to issuance of the writ is without question. Tingle, supra.

Propriety of Granting the Writ

After trial, the record of which is contained in five volumes and reflects the transactions between the Mental Health Board and Fullilove over a span of more than two years, the trial court made the following findings, amply supported by the evidence:

“Fullilove Excavating Company, Inc., sometimes hereinafter referred to as Ful-lilove, entered into a contract for site excavation on the Birmingham Developmental Center for the Alabama Mental Health Board, sometimes hereinafter referred to as the Board.
“The contract, dated January 14, 1974, was for the sum of $1,439,124.00 which, when added to a change order dated August 3, 1976, amounted to a total approved contract price of $1,498,044.66. The contract documents, plans, specifications, as well as the overall on-site supervision, was prepared and controlled by the Board and/or its duly authorized representatives.
“Fullilove submitted requests for periodic payments for work performed under the contract which were processed through regular channels of authorities for approval. In November, 1974, Fulli-love, as required by the contract documents, made request upon the Board’s on-site engineer, to examine and determine the disposition of certain materials to be excavated. An employee of the Board determined that the material in question was ‘garbage’ and, therefore, ‘unsuitable materials excavation’ under the detailed classification of excavation as shown by the contract documents. Authorization and instructions were given to Fullilove to ‘excavate and haul away’ the unsuitable materials, with notice of such action being sent to the Board.
“Fullilove removed 8,128 cubic yards of ‘garbage’ which is undisputed. A request for periodic payment was submitted in July, 1975, by Fullilove which was duly approved in due course and payment made for same. Included as a part of this request was a sum for $24,384.00 for ‘unsuitable material excavation.’ The Board, thereafter, approved, in due course, each and every request for payment submitted by Fullilove, including the request for final payment. Each such request, as required by the Board, was accompanied by a summary of work completed for each and every item of work for which a unit price was applicable under the contract.
“Fullilove’s request for final payment was approved in due course for the sum of $143,720.67. Thereafter, a warrant was issued for the sum of $128,306.91, which represented a decrease of $15,-413.76 from Fullilove’s approved final payment.”

Hardin and Adams sought to justify reduction in the amount of final payment to Fullilove on the basis that previous payment to it for excavating “unsuitable material” was erroneous because all material excavated under the terms of the contract was to be paid for at the lower unit price paid for excavating “unclassified material.” This position was based upon a review and interpretation of the contract after Fulli-love’s final payment request had been approved, including the $15,413.17 in dispute in this action. The reduction was effected by amending a change order under the contract and Fullilove’s final estimate (payment request). We note that the provisions of the contract had previously been interpreted otherwise as reflected by the evidence and found by the trial court. Payment had been made to Fullilove on the basis of a prior interpretation that excavation of the material was properly paid for as “unsuitable material.” We would agree with the interpretation of the contract that Hardin and Adams originally placed upon it.

Adams and Hardin contend that the trial court was in error in issuing the writ of mandamus because in interpreting the contract as they did they were exercising discretion, which they had a right to do, therefore Fullilove showed no clear right to issuance of the writ. Fullilove contends that it performed all required of it under an executed contract, at a price fixed under the contract, and its performance was approved accordingly; therefore, it had a clear right to the writ of mandamus to compel Hardin and Adams to certify to the Comptroller for payment to it the amount withheld from final payment.

The trial court heard this case without a jury and made its findings of fact and conclusions of law. No citation of authority is needed, other than Rule 52, ARCP, to remind one of the favorable presumption given to those findings and the judgment. Based upon its findings, the trial court interpreted the contract as calling for payment of the disputed sum and concluded the writ should issue because of a clear right to it to prevent a failure of justice and the absence of any other remedy, or to prevent abuse of discretion, or to correct an arbitrary action outside the exercise of a reasonable discretion. The judgment in this case could be affirmed on the basis of any of these theories. However, we think the most sound basis to be that the writ was properly issued because there was a clear right to it so as to prevent a failure of justice.

Numerous authorities are cited by the litigants, pro and con, as to the propriety of issuing the writ of mandamus in this case. Of these authorities we find the most apt, by analogy, to be State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928). As previously stated, the evidence showed an executed contract; the trial court found there was a stated price in it to be paid for the work performed; the work was performed; and performance and payment were approved. The court, in Roquemore stated:

“ * * * The petition shows an executed contract of purchase and sale, for a definite price, and therefore a clear legal duty on the part of the highway department, through its executive head, presumptively, to audit and approve petitioner’s claim, in order that it may be paid out of the appropriate fund on warrant drawn by the state auditor in accordance with the usual practice.
“It is of course true that discretionary action or choice of action on the part of public officials cannot ordinarily be coerced by mandamus, [citations omitted] But, in cases like this, the board’s discretion is exhausted when it gives an order for materials and accepts delivery of them in due season; or, if there is receipt without express acceptance, when the materials are accepted by their actual use. Of course it always remains for the responsible officer to ascertain the existence of the facts upon which his obligation to perform the duty depends, but that is not the kind of judgment or discretion which would avert the writ of mandamus, [citations omitted] If the rule were otherwise, there would be little, if any field for the operation of the writ.”

In this case the discretion of Hardin and Adams was exhausted, at'the very latest, when approval was given Fullilove’s final payment request if not when the July 1975 periodic payment request was approved and paid. There was no right to amend the final payment request and withhold payment of the $15,413.76 sum.

There was no error in the entry of final judgment in this cause issuing the writ of mandamus. Mandamus was the appropriate remedy:

“Mandamus is an extraordinary legal remedy, grantable only when petitioner shows a clear, specific legal right for the enforcement of which there is no other adequate remedy. * * * ” All American Life and Casualty Co. v. Moore, 286 Ala. 492, 242 So.2d 661 (1970):

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Lagatha CABANISS v. Warren COOK, a minor, etc., et al.
    SC 2458.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Ralph D. Gaines and Michael H. Cleckler of Gaines, Hereford, Cleckler, Robbins & Blair, Talladega, for appellant.
    B. Clark Carpenter, Jr. of Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, for appellees.
   BLOODWORTH, Justice.

Defendant, Lagatha Cabaniss, appeals from a judgment of $15,000 for plaintiff, Warren Cook, an unemancipated minor suing, by and through his father as next friend, for damages arising out of an automobile accident. We affirm.

At a pre-trial conference, plaintiff was allowed to amend his complaint to include a claim for medical expenses and loss of earnings. The amendment occurred more than one year after the date of the accident. Neither plaintiff’s mother nor his father has filed suit to recover medical expenses or loss of earnings incurred as a result of their son’s injuries. As to their claims, the statute of limitations has, of course, run.

At trial, evidence of medical expenses, an ambulance bill and lost wages were offered by the plaintiff and admitted in evidence, and the jury returned a verdict of $15,000 for plaintiff. Defendant’s motions for judgment notwithstanding the verdict or, alternatively, new trial were overruled.

On this appeal, defendant contends: that an unemancipated minor, suing by and through his father as next friend, may not recover medical expenses and lost wages incurred as a result of his injuries because these expenses may only be recovered by the parent in a separate suit citing Tit. 7, § 118, Code of Alabama (now § 6-5-390, Code of 1975) and cases decided thereunder; that the claim for medical expenses and lost wages is barred by the statute of limitations; and, that the trial court erred in its refusal to give certain requested charges to the jury.

We are faced, on this appeal, with a case of first impression in Alabama. It is the general rule in Alabama that a father, in an action to recover for injuries to a minor child, may recover for loss of the child’s services and for medical expenses incurred in treating such injuries. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965); Franklin v. Georgia Casualty Co., 225 Ala. 58, 141 So. 702 (1932).

Alabama recognizes, however, that the minor child himself may recover these damages in certain circumstances. Thus, it has. been held that where the minor is emancipated, he may recover for lost wages. Chandler v. Waugh, 290 Ala. 70, 274 So.2d 46 (1973); Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 So. 222 (1907). Likewise, a minor, suing by his or her next friend, may recover medical expenses. Chandler v. Waugh, supra; Central of Georgia R. Co. v. McNab, supra; Forbes v. Loftin, 50 Ala. 396 (1874). A judgment against the defendant for such medical expenses would protect him against any other possible suit for the same damages. Chandler v. Waugh, supra; Central of Georgia R. Co. v. McNab, supra; Forbes v. Loftin, supra.

In this case, however, the minor is un-emancipated and, therefore, does not fall within the lost wages exception of our present case law. It is questionable whether he falls within the medical expenses exception as well. We do not think this disposes of the question, however. Even where the child is unemancipated, many states have held that the parent has “waived” or is “estopped” to assert his right to recover medical expenses and loss of services when he, the parent, as next friend, brings an action on behalf of the child for the entire injury or permits the case to proceed on the theory of the child’s right to recover for lost wages and medical expenses. See, e. g., Lane v. Webb, 220 So.2d 281 (Miss.1969); Smith v. Geoghegan and Mathis, 333 S.W.2d 254 (Ky.App.1960); Garrison v. Ryno, 328 S.W.2d 557 (Mo.1959). See also 67 C.J.S. Parent and Child § 43, pp. 747-48.

In Lane v. Webb, supra, the Mississippi Supreme Court was faced with the identical issue here presented, viz:

“ . . . Medical and hospital expenses of a minor are obligations and debts of the father. Where the father has incurred or paid them, he has the right to bring a separate suit for them. Nevertheless, where the father, as here, brings a suit as next friend of his minor child, he waives in the child’s favor his right to recover the expenses of medical and hospital treatment, and is thereafter estopped to claim them in a separate suit.”

The basis for the court’s decision is then given.

“ ‘But, it is said that, when the plaintiff in a case of this kind is a minor, medical, surgical, hospital and nursing expenses incurred in curing or relieving his injuries are recoverable, if at all, by his parent or guardian, and not by him in a suit of this kind, unless it be shown that he alone is responsible therefor by reason of his emancipation or the incompetency or death of his parents. The record shows, however, in the case that we have here, that the appellee sued herein by his father as next friend; and whatever merit the above mentioned argument might have had, if the father had not appeared as next friend, and we express no opinion on that point, the father, by bringing the suit as next friend, waived in the appel-lee’s favor the right to recover the expenses of medical and hospital treatment. Anderson v. Jenkins, 220 Miss. at 145, 154, 70 So.2d 535 at 539.’
“This rule permits these issues to be decided in one suit rather than two. It permits a judicial determination of all damages from the accident in one proceeding. Moreover, it enables the jury to consider all of the circumstances and damages resulting from the accident in the suit by the minor through his father as next friend. Medical and hospital expenses as damages were submitted to the jury on the first trial of the instant case, and under the above-stated rule may be submitted in the new trial on the damages issue. . . . ”

To like effect are the cited cases from other jurisdictions and 67 C.J.S., supra, which states:

“§ 43. — Waiver and Estoppel
“A parent may waive or be estopped to assert his right to recover for injury to his child and permit the child to recover the full amount to which both would be entitled, as where he brings an action on behalf of the child for the entire injury or permits the case to proceed on the theory of the child’s right to recover for loss of services and earning capacity during minority.”

We think these cases express a sound rule. It is, therefore, that we hold that where, as here, the father, acting as next friend of the minor, brings suit for his minor child, he “waives,” in the child’s favor, his right to recover the expenses of medical treatment and the loss of services, and he is thereafter “estopped” to claim them in a separate suit. See Lane v. Webb, supra; Garrison v. Ryno, supra.

Defendant contends, however, that since the claims for medical expenses and lost wages were made at the pre-trial conference, more than one year after the date of the accident, they are barred by the statute of limitations. We cannot agree. Rule 15(c), A.R.C.P., expressly provides that such an amendment which “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading . . . relates back to the date of the original pleading . . . ” Therefore, because the original complaint was timely filed, and the amended pleading relates back to it, it is not barred by the statute of limitations.

Defendant lastly argues that it was error to refuse certain requested jury charges and cites Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73 (1920), in support of her contention. The defendant’s requested jury charges are as follows:

“The Court charges the jury that you cannot return a verdict for the plaintiff for any sum which includes charges for hospital services.”
“The Court charges the jury that in the event you find the "issues in favor of the plaintiff you cannot return a verdict which includes any amount for doctors’ bills, hospital bills or other medical expenses.”
“The Court charges the jury that you cannot return a verdict for the plaintiff for doctors’ bills for services.”

Although Hoffman does hold that it was reversible error to refuse similar charges, we think that case is distinguishable from the case at bar for the very obvious reason that no contentions as to “waiver” or “es-toppel” were made in that case, as have been made here, and therefore, this Court is faced with an issue of first impression in this state which we have decided adverse to the defendant. Defendant, under our holding, was not entitled to have these charges given. They were correctly refused by the trial court.

Nothing we have said or held herein should be construed to mean that a parent cannot still maintain a separate action. In no event, however, can there be double recovery.

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

AFFIRMED.

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

      . This Code became effective October 31, 1977.


text:
    Julie Griswold CAGLE et al., etc. v. Ben REEVES, Judge of Probate.
    SC 2805.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Richard H. Gill, Montgomery, C. Neal Pope, Phenix City, John Crawley, Troy, for appellants.
    Oliver W. Brantley, Troy, for Brantley & Calhoun.
    Walter R. Byars, Montgomery, for Steiner, Crum & Baker.
   EMBRY, Justice.

This appeal is from judgments of the Circuit Court of Pike County of 24 August 1977 denying petitions of Victor Michael Griswold, as Executor of the Last Will and Testament of Jewell S. Griswold, deceased, and Julie Griswold Cagle for writs of mandamus directed to Honorable Ben Reeves, Judge of Probate of Pike County, to require him to transfer two contests of a 1973 will of Anise J. Sorrell to the circuit court.

The notice of Appeal was filed by Etta S. Braswell, Lois S. Phillips, Joseph W. Burt, Julie Griswold Cagle and Victor Michael Griswold, as Executor of the Last Will and Testament of Jewell S. Griswold deceased. No judgments of 24 August 1977 appear in the record which affect Braswell, Phillips and Burt; therefore we will only consider the appeals of Griswold’s Executor and Ca-gle.

For an understanding of these cases on appeal it is necessary to summarize the events which provide the background for the filing of, and action on, the petitions for the writs.

Anise J. Sorrell died on 5 December 1975. Prior to her death she had executed, on the following dates, what purported to be her last wills and testaments:

(1) 23 June 1972 (1972 will). (2) 13 March 1973 (1973 will). (3) 9 August 1974 (1974 will). (4) 16 October 1975 Codicil (1975 Codicil to 1974 will). On 11 December 1975 the 1974 will and 1975 codicil were admitted to probate by order of the probate court. On 10 June 1976 Braswell, Phillips and Burt filed a contest of the 1974 will and 1975 codicil in the circuit court under Tit. 61, § 64, Code (1940), providing for contest in the circuit court after probate. On 11 June 1976 Jewell S. Griswold (later deceased) did likewise. These two contests were later ordered consolidated for trial by the circuit court. On 19 October 1976 Bras-well, Phillips and Burt filed the 1972 will for probate. At the hearing it was shown that the 1974 will and 1975 codicil had previously been admitted to probate. Apparently this was the basis of the judgment of the probate court that the 1972 will was not the genuine last will and testament of Anise J. Sorrell. There was no contest of this will by Braswell, Phillips and Burt, who had filed it for probate, or by proponents of the 1974 will and 1975 codicil; the former appealed the judgment of the probate court to the circuit court. We now come to the 1973 will which is directly involved in this appeal.

The 1973 Will

On 10 December 1976 Braswell, Phillips and Burt filed a petition for probate of the 1973 will. It was alleged that the will was surrendered and offered for probate for the purpose of contesting it. No grounds for contest were alleged either in the petition or by separate papers filed contemporaneously; neither was a demand filed for transfer to the circuit court as provided for in Tit. 61, § 63, Code (1940). In the order of the probate court of 6 January 1977 which denied admission of the 1973 will to probate it was recited:

“ * * * that said instrument dated March 13, 1973, at the time of its execution was the valid last will and testament of Anise J. Sorrell, but cannot at this time be probated as the last will and testament of Anise J. Sorrell, because there are the will dated August 9, 1974, and codicil thereto dated October 16, 1975, which have already been admitted to probate and record by this Court as the last will and testament of Anise J. Sor-rell; and that said will dated August 9, 1974, and codicil dated October 16, 1975, have been contested by the petitioners in the Circuit Court of Pike County, Alabama.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT, that said instrument in writing dated March 13, 1973, purporting to be the last will and testament of Anise J. Sorrell, deceased, is hereby declared to be duly proved, having been validly executed by said Anise J. Sorrell at the time
the same was made, and at a time when she was over the age of twenty-one years, of sound mind and disposing memory, and fully capable of making her said will dated March 13, 1973.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT, that the instrument dated March 13, 1973, together with the testimony of the witnesses reduced to writing, and duly signed, and all papers on file relating to this proceeding be recorded
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT, that said instrument dated March 13, 1973, not be admitted to probate at this time, pending the final determination of said will contest in the Circuit Court of Pike County, Alabama.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT, that upon final determination of said will contest in the Circuit Court of Pike County, Alabama, that should the will dated August 9, 1974, and the codicil dated October 16, 1975 or either of them be declared to be or sustained to be the valid last will and testament of Anise J. Sorrell, deceased, then the instrument dated March 13, 1973, shall not be admitted to probate and probate thereof shall be denied; however, should both said will and codicil be declared to be invalid and not the true last will and testament of Anise J. Sorrell, said will dated March 13, 1973, shall thereupon be declared to be the last will and testament of said testatrix, and, as such, admitted to probate to be recorded, together with the proof thereof and all other papers on file relating to this proceeding.”

On 1 February 1977, Braswell, Phillips and Burt appealed this judgment to the circuit court. On 7 February 1977 these parties filed a contest of the 1973 will in the probate court containing a request for transfer to the circuit court. No action has been taken on this by the probate court. On 7 April 1977 the same parties filed in the circuit court a petition for the writ of mandamus to compel the probate judge to transfer this contest to the circuit court. No ruling has been made by the circuit court on that petition. However, on 10 May 1977, a motion to consolidate the proceedings relating to the 1973 will with the contests of the 1974 will and 1975 codicil was denied. In the order denying consolidation the circuit court declined to rule on the petition for writ of mandamus; opining that mandamus was not the proper remedy; the circuit court lacked jurisdiction; the circuit court cannot transfer a contest of will or wills from probate to circuit court when no valid contest is pending in probate court; and that appeal will not lie to the circuit court from the probate court.

On 26 July 1977, after the 6 January 1977 order denying Braswell’s, Phillips’ and Burt’s petition for admission of the 1973 will to probate, Julie Griswold Cagle (Gris-wold’s daughter and legatee under her will), filed a petition to probate the 1973 will in the probate court, a contest of that will and demand for removal of the contest to the circuit court. No action was taken by the probate court. On 19 August 1977, Gris-wold’s Executor filed a petition to probate the 1973 will in the probate court, a contest of that will and demand for removal to the circuit court. No action was taken by the probate court. On 24 August 1977 both Griswold’s daughter (Cagle) and Griswold’s Executor (Griswold) filed petitions for writs of mandamus in the circuit court to compel the transfer of their respective contests of the 1973 will to the circuit court. It is from the judgments of 24 August denying those petitions that these appeals are taken.

At the outset a comment is in order regarding the appellate procedure utilized in these cases. Although, as in many cases, we have been provided with an appendix to the briefs, as authorized by Rule 30, ARAP, it does not comply with either subsection (e)(1) or (e)(2), therefore is of no benefit to the court. Proper use of the appendix system, particularly utilization of a comprehensive index to the appendix would greatly facilitate disposition of appeals by this court. This is all the more true in cases such as these where the record is long and complex regarding the sequence of events in the two courts below and the posture of each of the various proceedings in those courts.

The goal of appellants, as is Braswell’s, Phillips’, and Burt’s, is to bring about a consolidation for trial of the contests of the 1973 will with that of the 1974 will and 1975 codicil. Their principal obstacle to reaching that goal has been an inability to file the 1973 will for probate in the only court which has jurisdiction probate it, at the same time contest it there “before probate,” and remove the contest proceedings to the circuit court for trial.

The Issue

Although appellants say there are six issues for review by us, the question of whether the circuit court should have issued the writs of mandamus to bring the contests of Griswold’s daughter and Griswold’s Executor to the circuit court presents only one issue:

When the 1973 will was offered for probate by Braswell, Phillips, and Burt, for the purpose of contesting it, but no contest was filed or demand for removal made by them at that time and the will was denied probate, may Griswold’s daughter and Griswold’s Executor later file it for probate, contest it, demand that the contest be removed to circuit court and be entitled to have it removed?

We will first deal with this controlling issue and then briefly discuss the other issues raised by appellants.

Controlling Principles of Law

A will may be contested prior to probate and the contest transferred to the circuit court. Tit. 61, § 52 & § 63, Code (1940):

“§ 52. Contest; grounds, and by whom instituted; how issue made up and tried. —A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the persons making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury.”
“§ 63. When contest transferred to circuit court, and proceedings thereafter. —Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the cause shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest, or, said contest may be tried by said circuit court, at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within thirty days after the rendition of such judgment. After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court.”

A will may be contested after probate. Tit. 61, § 64, Code (1940):

“§ 64. Contest in circuit court in equity within six months. — Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time, within the six months after the admission of such will to probate in this state, contest the validity of the same by bill in equity in the circuit court in the county in which such will was probated.”

To apply the provisions of §§ 52 and 63 to the facts in this case we must first examine the order of the probate court which would not permit the 1973 will to be offered for probate for the purpose of contesting it against the prior decisions of this court applicable, or seemingly so, to the facts of this case. That order shows the probate court would not receive the 1973 will for probate for the purpose of contesting it because the 1974 will and 1975 codicil had been previously admitted and was being contested in the circuit court (under the provisions of § 64). Was this a sufficient basis for the probate court to take no action on the petition for probate, contest and demand for transfer filed later by Gris-wold’s daughter and Griswold’s Executor? We think not. We reach this conclusion on the basis there are pending in the probate court, the court having jurisdiction to admit to probate or to deny admission to probate all the various wills of Anise J. Sorrell, valid contests by the Griswold’s Executor, Griswold’s daughter, and Braswell, Phillips and Burt.

Appellees say that no valid contests are pending in the probate court because the statute providing for contest before probate requires filing the contest before examination of the witnesses whose testimony would establish the will. In this regard they rely upon the case of Allen v. Pugh, 206 Ala. 10, 89 So. 470 (1921). This court, in using the italicized above language in Allen, was merely illustrating that when it had previously reversed the probate court for denying probate of a will it was now saying that its former decision meant the will was probated on the date and occasion it was proved and on which it should have originally been admitted to probate. Allen stands for two propositions pertinent to this ease: one having a right to contest a will may do so only once, either before-probate or after-probate; and, any person who has acquired an interest in an estate by purchase or descent which would be injuriously affected by the establishment of a will may contest it in the probate court, if such interest was acquired prior to the probate of that will. The significant distinction between Allen and this case is that neither the 1972 or 1973 wills in this case have ever been admitted to probate.

In this case, at this time, the 1973 will has been offered for probate by Braswell, Phillips, Burt, Griswold’s daughter, and Gris-wold’s Executor; with the respective offers for probate have been filed contests and demands for transfer to the circuit court. It matters not that the offers of the will for probate were made by those claiming that it is not the true last will of Anise J. Sorrell; the contests are pending and should be transferred to the circuit court as demanded. Hooper v. Huey, 293 Ala. 63, 300 So.2d 100 (1974).

Appellees would say this should not be done basically for the reason that once the 1974 will and 1975 codicil have been admitted to probate and are under attack no action may be taken regarding the 1972 and 1973 wills. This stance rests upon an erroneous premise: that the validity or invalidity of the 1972 and 1973 wills cannot be determined until after that question concerning the 1974 will and 1975 codicil has been resolved. This is not the case. See Hooper v. Huey, supra. Appellees say this case cannot be fitted into the Hooper pattern. We disagree. True, in Hooper the entire proceeding was prior to the probate of any will but the turning point of the decision was not that; it was the fact that two of the three wills had been produced but not offered for probate prior to contest of them. Here the contests are pending, only awaiting transfer. That the contest of the 1974 will and 1975 codicil was filed in the circuit court after probate would be no impediment to trial of the before-probate contests in the circuit court. Also should appellees desire they would have a right to test the validity of the 1972 will against that of the 1974 will and 1975 codicil by the simple device of filing a contest of the 1972 will in the probate court and demanding its transfer to the circuit court for trial. The circuit court could then consider motions for consolidation for trial of all contests; before-probate and after-probate. Hooper v. Huey, supra, Rule 42(a), ARCP. If, in its discretion, consolidation was feasible it could properly align the parties in each of the contests. Rules 19 and 20, ARCP. After trial the circuit court could then enter appropriate judgment in the after-probate contest and certify back to the probate court the resolutions of those issues transferred from it in the before-probate contests, as provided in Tit. 61, § 63.

The Incidental Issues

These are stated by appellants as follows:

“1. Whether, following the rejection of a will by the Probate Court, a party interested therein who has not previously contested the same may file an original contest in equity of the probated [rejected] will?
“2. Whether a will contest pending in equity at the time of the death of the contestant survives to and is revivable in favor of the heirs or personal representative of the deceased contestant * * * ?
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“3. Whether a will contest, being a cause of action cognizable in equity, survives to the heirs or personal representative to institute a contest in probate court or in circuit court after the death of the decedent?
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“4. Whether a contest of a will may be filed by the daughter of a deceased person who had a right of contest, and where the daughter-contestant is herself a beneficiary of the will offered for probate for the purpose of contesting it?
“5. Whether the Circuit Court should be compelled by writ of mandamus to exercise jurisdiction over the original contest in equity filed by Jewell Griswold in her lifetime after the probate rejection of the 1973 will of Ansie Sorrell?”

We think this opinion has resolved incidental issue number one but, if not abundantly clear, we here hold that it is answered in the negative. An original contest in the circuit court may only be filed after admission of a will to probate. Tit. 61, § 64, Code (1940).

The answer to number two must be yes. Tit. 7, § 153(1), Code (1940).

Under the facts of this case we think numbers three, four and five have been answered in this opinion.

For the reasons given the judgments below must be reversed and the writs of mandamus should issue from the circuit court to the probate court to effect the transfer of the pending contests of the 1973 will to the circuit court.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    In re Jewell S. GRISWOLD v. J. B. MONEY et al. Ex parte Victor Michael GRISWOLD, Executor, etc.
    SC 2809.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   EMBRY, Justice.

The relief prayed for in this petition for writ of mandamus is rendered unnecessary by the decision in Cagle v. Reeves, Ala., 353 So.2d 787, decided on December 22, 1977.

WRIT DENIED.

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


text:
    Robert E. WHITEHEAD v. BARANCO COLOR LABS, INC., a corporation, et al.
    SC 2253.
    Supreme Court of Alabama.
    Dec. 29, 1977.

      Robert E. Whitehead, pro se.
    Lawrence B. Voit and Irving Silver, Mobile, for appellees.
   EMBRY, Justice.

In this case, Robert E. and Carol Whitehead filed a detinue action against Baranco Color Labs, Inc., to recover certain photographic equipment. Their attorney withdrew from the case and Robert E. Whitehead announced his intention to proceed pro se. His motion for summary judgment was denied; also his motion for writ of habeas corpus ad testificandum.

Robert E. Whitehead, pro se and in forma pauperis, appeals the denial of his motions. Appellees have filed a motion to dismiss the appeal. That motion will be granted.

Issues

The issues for review as presented by appellees may be stated:

1. Whether denial of a motion for summary judgment is an appealable order.

2. Whether an incarcerated prisoner-plaintiff in a civil action is entitled to be brought to court pursuant to a writ of habeas corpus ad testificandum so that he may personally testify in his own behalf.

I

The order which denied summary judgment is interlocutory in nature, not made appealable by statute, and will, therefore, not support an appeal. See Dick v. First National Bank of Birmingham, 334 So.2d 922 (Ala.App., 1976). Moreover, this appeal is not one by permission pursuant to Rule 5, ARAP.

II

Whitehead is not entitled to have himself brought from the penitentiary to testify in his own behalf. His proper remedy was to take his own testimony, either upon written questions under Rule 31, ARCP, or upon oral examination under Rule 30, ARCP. In either event that testimony could have been used at trial. See Rule 32(a)(3)(C), ARCP. An appeal will not lie to review the writ because the common law writ of habeas corpus ad testificandum was, in these circumstances, superseded by Tit. 45, § 60, Code (1940), which, in turn, has been superseded by the Alabama Rules of Civil Procedure. See ARCP, Appendix II, Statutes and Rules Superseded. Also see Ex parte Brown, 206 Ala. 528, 91 So. 306 (1921).

APPEAL DISMISSED.

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


author: SHORES, Justice. MADDOX, Justice

text:
    In re Larry D. CORLEY v. Lee EPPERSON, etc., et al. Ex parte Larry D. Corley.
    SC 2807.
    Supreme Court of Alabama.
    Jan. 6, 1978.

      Jack R. Evans, Tuscaloosa, for petitioner.
    William J. Donald, Tuscaloosa, for Zean-ah, Donald & Hust.
   SHORES, Justice.

This is a mandamus action which seeks to compel the circuit clerk and circuit judge to enter a judgment pursuant to an offer of judgment made by one of the defendants and accepted by the plaintiff under Rule 68, ARCP.

Petitioner Corley had filed suit against the estate of Billy Jack Mullenix and had joined Mullenix’s alleged employer, Lee Ep-person, as a defendant.

The administrator of Mullenix’s estate had made two prior offers of judgment to plaintiff Corley which were accepted; and defendant Epperson moved to strike each of these two prior offers of judgment and his motions were granted.

The third offer of judgment which is the basis of this mandamus proceeding was filed by the administratrix (the administrator had resigned) of Mullenix’s estate, after she had made a demand on Epperson’s insurer to defend the estate and pay the policy limits to Corley. Epperson’s motion to strike the offer of judgment made by the estate was again granted.

Petitioner Corley contends that he is entitled to have the trial judge and circuit clerk enter a judgment in his favor pursuant to Rule 68, ARCP. We cannot agree.

Rule 68, ARCP, provides:

“At any time more than 15 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than 10 days, prior to the commencement of hearings to determine the amount or extent of liability.”

There are very few reported decisions concerning offers of judgment where, in an action involving multiple defendants, fewer than all offer judgment in favor of the plaintiff. We think the better rule in this situation is to leave to the trial court discretion to delay entry of judgment in favor of the plaintiff and against fewer than all defendants until final disposition of the cause.

Rule 68, ARCP, should be read in context with other rules. Rule 54(b) provides:

“Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” (Emphasis Supplied)

Rule 54(b) has most often been construed in default situations and most courts hold that “ . . . when one of several defendants who is alleged to be jointly liable defaults, judgment should not be entered against him until the matter has been adjudicated with regard to all defendants, or all defendants have defaulted. . . . ” Wright & Miller, Federal Practice and Procedure: Civil § 2690.

Although offers of judgment made under Rule 68 and default judgments dealt with in Rule 55 are not analogous in all respects, the language of both rules is identical in providing that “the clerk shall enter judgment” when the events addressed in these two rules occur. However, the performance of this clerical function, although mandated by the rules under specified circumstances, does not usurp the trial court’s discretion to withhold entry of judgment when there is just reason for delaying such entry.

Historically, only the trial judge was authorized to enter judgments, by default or otherwise. Rules 55 and 68 were designed to allow entry of judgment by the clerk in limited situations; but these rules were not intended in any way to diminish the authority or discretion of the trial court to effectuate the final resolution of litigation.

We simply hold that the petitioner cannot compel, by writ of mandamus at this time, the entry of judgment under Rule 68. Absent fraud or sham, which the trial court clearly may inquire into, the judgment based upon the offer should be entered in petitioner’s favor at the conclusion of this litigation.

WRIT DENIED.

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

BLOODWORTH, MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

The primary purpose of Rule 68 is to encourage early settlements of litigation. It is also intended to protect the party who is willing to settle from the burden of costs which subsequently accrue.

Even apart from the explicit language of the rule, sound judicial policy should require us to construe Rule 68 in a manner that would encourage litigants to take advantage of its provisions and avoid its sanctions. Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, Inc., 63 F.R.D. 607 (E.D. N.Y. 1974); See, also, 7 Moore’s Federal Practice, §§ 68.01-68.06 (2d Ed. 1975).

Before the lawsuit was filed the parties could have settled their differences without court intervention. The plaintiff could have sued Mullenix’s estate separately, and not joined the alleged master.

I have found no authority which would, prohibit an agent who is sued along with his alleged master from making an offer of judgment severally. The rule in Alabama is that if the joint liability results not from joint participation in the wrongful act, but because one is responsible for the wrong done by the other under the rule of respon-deat superior, the suit may be joint or several, but a judgment exonerating the servant will relieve the master. Griffin v. Bozeman, 234 Ala. 136, 173 So. 857 (1937). Neither did I find any authority which would support the theory that a master, not a party to the offer of judgment and acceptance, can question the good faith of the offer of judgment and acceptance. I did find one federal case which held that when an offer of judgment has been made and not accepted (the offer was accepted in the case here on appeal) and the question of imposing the sanctions under Rule 68 are the issue, the trial judge may determine whether the offer was a sham or made in bad faith as between offeror and offeree. Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, supra. The situation which existed in Mr. Hanger does not exist here because in this case, a third party is questioning the right of these two parties to contract separately.

I do not question the power of a court, under Rule 68, to inquire into the good faith of an offer of judgment when there has not been an acceptance, and the party who made the offer is seeking to impose the sanctions set out in Rule 68. Neither do I question the right of a party to the offer of judgment and acceptance to raise the question of fraud. I do question the power of the court to refuse to enter a judgment pursuant to an offer and acceptance under Rule 68, when neither party to the agreement is seeking to question it. By holding to the contrary, I think the majority construes Rule 68 contrary to the intent of Rule 68 and contrary to prior opinions of this Court dealing with consent judgments.

In State ex rel. Carmichael v. Jones, 252 Ala. 479, 486, 41 So.2d 280, 286 (1949), the circuit court had refused to enter a consent judgment, the terms of which had been agreed upon by the respective litigants. In granting a writ of mandamus directing the court to enter the judgment as agreed upon, this Court wrote:

“Whatever may be the holdings elsewhere, this court has long been committed to the principle that the act of rendering a consent judgment, lawfully agreed upon between parties, sui juris, and within the jurisdiction of the court, is ministerial and not judicial as these terms are considered in that connection. Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550(4); Cowley v. Farrow, 193 Ala. 381, 383, 69 So. 114; Carr v. Illinois Central R. Co., 180 Ala. 159, 166, 60 So. 277, 43 L.R.A., N.S., 634.”

I would award the writ of mandamus.

BLOODWORTH and FAULKNER, JJ., concur.