author: LEE, Justice,

text:
    James FERMO v. STATE of Mississippi.
    No. 51091.
    Supreme Court of Mississippi.
    May 9, 1979.
    Rehearing Denied May 30, 1979.

      Moore, Epps & Selph, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

James Fermo was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, for the sale of three(3) pounds of marijuana. He was sentenced to a term of fifteen (15) years in the Mississippi Department of Corrections, three (3) years being suspended on probation, and he was required to serve twelve (12) years. On March 20, 1978, Judge William F. Coleman heard a motion for a new trial which was overruled, and Fermo has appealed here.

On July 19, 1976, Hugh E. Dickey, II, an agent working undercover for the Mississippi Bureau of Narcotics, purchased three pounds of marijuana from appellant while sitting in his automobile on the parking lot of Olde English Village shopping center in Jackson. Dickey paid three hundred ninety dollars ($390.00) for the marijuana. The unlawful sale was observed by James R. Kelly, who was also an agent of the Bureau of Narcotics, from his automobile which was parked a short distance away from Dickey in the same parking lot.

James Fermo and Barry Trest were together on the evening of July 19, 1976, in said parking lot, and Fermo contends that Trest, not he, sold the marijuana to agent Dickey. Dickey positively testified that Fermo was the individual who sold him the marijuana. Barry Trest was not present at the trial. Apparently, both the State and appellant had difficulty in locating Trest.

After the jury’s verdict of guilty and the imposition of sentence, a hearing was held on motion for new trial, wherein appellant’s attorney testified that he approached the trial judge (Honorable Russell D. Moore, III) concerning a possible guilty plea after negotiations with the district attorney’s office had proved unsatisfactory. The attorney testified that, when ascertaining the maximum sentence for the sale of marijuana to be twenty (20) years in the state penitentiary, the judge offered to sentence Fermo to ten (10) years imprisonment in return for a guilty plea, stating that, “He’d better take it.” The attorney also testified that, when the petit jury was impaneled and prior to the commencement of trial, the judge offered a sentence of seven (7) years to Fermo in return for a plea of guilty. At the hearing it was shown to be the practice of the Circuit Court for the First Judicial District of Hinds County to impose a heavier sentence on a person who had declined to enter into plea bargaining in the event that such person was found guilty at the trial.

I.

Did the trial court err in increasing appellant’s sentence in violation of the Fourteenth Amendment because appellant exercised his constitutional rights to a trial, to not incriminate himself, to not plead guilty, and to testify in his own behalf?

A majority of the jurisdictions in the United States have upheld the principle that a criminal defendant may not receive a harsher sentence solely, or even partially, because he refuses to plead guilty and proceeds to require the prosecution to prove his guilt. The rationale behind the principle is that the coercion or the inducement casts a chill over the exercise of guaranteed fundamental constitutional rights. The sentencing court may consider only legitimate factors and cannot base the sentence, either in whole or part, upon the defendant’s exercising his constitutional rights to a jury trial. United States v. Stockwell, 472 F.2d 1186 (9th Cir. 1973); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Johnson v. State, 274 Md. 536, 336 A.2d 113 (Md.App. 1975). The Maryland Court held that any doubt, as to whether or not the exercise of such constitutional rights was considered by the lower court in determining the sentence, must be resolved in favor of the defendant.

In the present case, the assistant district attorney was contacted by appellant’s attorney and he expressed no interest in making an offer of sentence acceptable to that attorney and appellant. The attorney then, on his own volition, went directly to the trial judge and attempted to get him to impose a three-year sentence in exchange for a guilty plea, which was declined by the judge. The next day, according to the attorney, the judge told him that he would sentence the defendant to ten years, if he entered a plea of guilty. The attorney replied that he didn’t think his client would accept such a sentence and then the judge said (according to the attorney), “Well, he’d better take it.” The attorney stated that, after the jury was impaneled, the judge told him seven years was the best he could do for the defendant, and the defendant should take that offer. During the first conversation between the judge and the defendant’s attorney, the judge inquired as to the maximum penalty and was informed that it was twenty (20) years in the penitentiary. In the last conversation the attorney said the judge stated, “You know what he can get.”

Appellant’s attorney initiated the conversations with the judge on the guilty plea in an effort to obtain the lightest sentence possible for his client. There is no indication in the record, and it is assumed, that, but for the attorney’s action in approaching the trial judge, there would have been no involvement by him in that matter. The appellant cannot take advantage of a situation or an error which he invited or induced the trial court to commit. Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532 (1942). We hold, therefore, that, under the facts of this case, the action of the trial judge did not constitute reversible error.

While a trial judge must control the sentencing phase of a criminal trial and has the responsibility and duty of approving or disapproving a recommendation by the prosecutor, he should never become involved, or participate, in the plea bargaining process. He must remain aloof from such negotiations. The trial judge always must be circumspect and unbiased, at all times displaying neutrality and fairness in the trial, and consideration for the constitutional rights of the accused.

II.

Did the trial court err in denying the sworn applications for continuance in which appellant requested a postponement in order to obtain the testimony of an eye witness?

The trial court has a broad discretion in granting or denying a motion for continuance, and, unless the court abuses its discretion to the prejudice of the appellant, its action will not be held error. McClendon v. State, 335 So.2d 887 (Miss.1976); Ladnier v. State, 273 So.2d 169 (Miss.1973); Lee v. State, 220 Miss. 298, 70 So.2d 609 (Miss.1954).

Appellant was indicted at the November 1976 Term of the Hinds County Circuit Court. The cause was continued at that term, again at the January 1977 Term, the March 1977 Term, the May 1977 Term, the November 1977 Term and the January 1978 Term. All such continuances were at the request of the appellant, who sought the presence of the witness Barry Trest. The appellant failed to appear at the March and May Terms, 1977, and the cases were continued for that reason.

Mississippi Code Annotated Section 11-7— 123 (1972) dealing with continuances, provides:

“On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom."

The appellant did not comply strictly with the above section and the continuance was properly denied. Shoemaker v. State, 222 Miss. 257, 75 So.2d 647 (1954).

After conviction of the appellant, the procedure outlined in Lamar v. State, 63 Miss. 265 (1885) and a multitude of cases following Lamar was not followed. The trial judge did not commit error in declining to grant a new trial because of overruling the motion for continuance.

III.

Did the trial court err in not permitting appellant’s wife to testify regarding a confession made to her by Barry Trest that he delivered the marijuana to the narcotics agent?

In Brown v. State, 99 Miss. 719, 55 So. 961 (1911) the Court held that an exception to the hearsay rule does not apply in a declaration against penal interest of the declarant. Appellant cites Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) in his contention that the testimony of appellant’s wife to the effect that Barry Trest had confessed to her was admissible as a declaration against penal interest. However, in Thompson v. State, 309 So.2d 533 (Miss.1975), [appellant’s attorney here was the trial attorney in Thompson ], this Court held that Chambers did not overrule the principle announced in Brown v. State, supra, where a declarant is not available, and stated:

“Defendant relies upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, one McDonald had confessed to several persons that he and not Chambers killed the deceased. McDonald thereafter repudiated his confessions but was present when Chambers was tried. Chambers held that proof of McDonald’s confession was admissible and the case was reversed because this testimony had been excluded.
The Mississippi rule regarding the inadmissibility of declarations against penal interest where the declarant is not available as a witness was announced in Brown v. State, 99 Miss. 719, 55 So. 961 (1911). Brown was not overruled in Chambers, for in the latter opinion the Court noted that ‘. . .we need not decide in this case whether, under other circumstances, it might serve some valid state purpose by excluding untrustworthy testimony.’ 410 U.S. at 300, 93 S.Ct. at 1048. And in Chambers, the Court said that ‘the availability of McDonald [the declarant] significantly distinguishes this case from the prior Mississippi precedent, Brown v. State, supra. . . . ’ 410 U.S. at 301, 93 S.Ct. at 1049.
We hold, therefore, that the validity of the rule announced in Brown was not undermined by the Chambers opinion, and where the declarant is not available his out-of-court declarations against penal interest are not sufficiently trustworthy to justify the Court in making an exception to the hearsay rule.” 309 So.2d at 535.

We are of the opinion that there is no merit in this contention.

IV.

Did the trial court err in overruling the appellant’s motion to quash indictment and petit venire, which motion alleged that Mississippi Code Annotated Section 13-5 — 1 (1972), insofar as it denies the right, duty and obligations of persons 18, 19 and 20 years of age to serve on grand and petit juries in Mississippi violates appellant’s rights under the Fourteenth Amendment to the United States Constitution and systematically excludes black persons from grand and petit juries?

The question presented by the above assignment was discussed and held to be without merit in Joyce v. State, 327 So.2d 255 (Miss.1976), citing from Johnson v. State, 260 So.2d 436 (Miss.1972), as follows:

“ ‘It is alleged that there were no jurors within the age group of appellant (18 — 20) on either the grand jury or the petit jury. It is argued that because this age group has been permitted by amendment to the United States Constitution to register and vote, they should be on the jury lists. Our Legislature has prescribed qualifications for jurors in Section 1762 Mississippi Code 1942 Annotated (Supp. 1971); and as a part thereof is the requirement that jurors be twenty-one years of age or older. The fact that the Constitution of the United States was amended by Amendment XXVI does not qualify persons under twenty-one years of age as jurors under State laws.’ ” 327 So.2d at 261.

V.

Did the trial judge err in overruling appellant’s contention that he was entitled to a new trial on the ground of racial discrimination in the selection of the foreman of the grand jury which indicted him?

After the indictment was returned, appellant filed two motions to quash the indictment. Neither of those motions assigned as a ground that no black had ever been appointed foreman of the grand jury. The question was raised only after the trial and was not timely. Polk v. State, 288 So.2d 452 (Miss.1974), cert. den. 419 U.S. 867, 95 S.Ct. 123, 42 L.Ed.2d 104; Holloway v. State, 242 So.2d 454 (Miss.1970); Gordon v. State, 160 So.2d 73 (Miss.1964). We are of the opinion that there is no error in the action of the trial judge in overruling appellant’s motion for new trial on that ground.

The judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    ANDERSON CONSTRUCTION COMPANY, INCORPORATED, v. LYON METAL PRODUCTS, INCORPORATED.
    No. 51200.
    Supreme Court of Mississippi.
    May 9, 1979.
    Rehearing Denied May 30, 1979.
    Reynolds & Mockbee, David W. Mockbee, Jackson, for appellant.
    Knight & Van Slyke, Leonard D. Van Slyke, Jr., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Anderson Construction Company (Anderson) filed suit in the Chancery Court for the First Judicial District of Hinds County (Honorable J. C. Stennett, presiding) against Lyon Metal Products, Inc. (Lyon) seeking damages in the sum of nine thousand seven hundred fifty dollars ($9,750.00) because of Lyon’s failure to honor a bid submitted by it to appellant. The chancellor held that Anderson was barred by the statute of frauds, dismissed the bill of complaint, and Anderson has appealed.

In March, 1977, the Board of Trustees, Jackson Municipal Separate School District, advertised for bids on the construction of an addition to Jim Hill High School in the City of Jackson. Anderson submitted the lowest bid and was awarded the contract. On April 4,1977, prior to submitting its bid, Anderson obtained a number of telephone quotations for materials and installation of steel lockers as designed in the construction plans and specifications. Ronald Sparks, representative of appellee, quoted appellant the sum of five thousand eight hundred ninety dollars seventy-four cents ($5,890.74) for the lockers and an additional one thousand seventy-six dollars seventy-eight cents ($1,076.78) for which it would install them. On the same date, appellant received quotations from Dupree Building Materials for a combined price of eleven thousand four hundred sixty-four dollars ($11,464.00) for lockers and installation and from A. K. Equipment Company in the amount of ten thousand two hundred seventy-seven dollars ($10,277.00) for lockers and fourteen hundred fifty dollars ($1,450.00) for installation.

The plans for the high school addition called for a quantity of four hundred ninety-six (496) lockers to be installed. In compiling his quote, Sparks mistakenly determined that the plans called for only three hundred six (306) lockers and appellee’s bid was submitted based on the cost and installation of that number. On the same date, appellee confirmed his quote and bid price by letter to appellant. Appellee received a purchase order from appellant for 496 lockers on April 22, 1977, in the amount quoted by it on the 306 lockers. Appellee reviewed the construction plans and found to its surprise that there was a second floor addition to be constructed, and its original quote was erroneous because of that oversight. On May 2, 1977, a representative from appellee contacted appellant, suggested that appellant obtain quotes from other people in the area (to inform it of the fair cost) and then submitted to appellant a written quotation for 496 lockers at a price of nine thousand five hundred one dollars eighty-six cents ($9,501.86) plus seventeen hundred forty-five dollars forty-two cents ($1,745.42) for installation. Appellant rejected that offer, proceeded to purchase lockers and install them itself at a total cost of fourteen thousand five hundred ten dollars ($14,510.00), and filed suit for the difference between such amount and the amount of appellee’s original bid. Appellant argues that the doctrine of promissory estoppel is applicable and that such doctrine is an exception to the statute of frauds. Further, that there was no contract which would bring the matter within the statute of frauds.

I.

Did the trial court err in holding that appellee was not promissorily estopped to defend upon the statute of frauds?

II.

Did the trial court err in holding that the statute of frauds barred the suit?

The applicable section of the statute of frauds, Mississippi Code Annotated Section 75-2-201 (1972), follows:

“(1) Except as otherwise provided in this section, a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten (10) days after it is received.
(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2-606) [§ 75-2-606].”

The doctrine of promissory estoppel is stated in Martin v. Dixie Planing Mill, 199 Miss. 455, 463, 24 So.2d 332, 334 (1946) quoting from Restatement of the Law of Contracts, as follows:

“In A.L.I. Restatement of the Law of Contracts, § 90, p. 110, this principle is announced: ‘A promise which the promissor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’ This Court adopted and applied that rule in Lusk et al v. Universal Credit Co., 164 Miss. 693, 145 So. 623, and in Brewer v. Universal Credit Co., 191 Miss. 183, 192 So. 902.”

This Court, in Thomas v. Prewitt, 355 So.2d 657 (Miss.1978), declined to diminish the effect of the statute of frauds by applying the principle of estoppel, and stated:

“In Tanner v. Walsh, 184 Miss. 147, 183 So. 278 (1938), a pre-code case, we stated:
(2) What we are, in effect, asked by the appellant to do is to engraft an exception on the statute by interpreting it as if it contained, after the words, ‘for a longer term than one year,’ the following or similar words: ‘unless the lessor, when making the lease, promises the lessee to observe it without its being reduced to writing, and permits the lessee to expend money on the leased premises in reliance on such promise.’ This we cannot do, for this Court, contrary to the course pursued by some others, has uniformly held that it is without power to engraft exceptions on the statute, and must enforce it as written. Among the many cases so holding see Beamon v. Buck, 9 Smedes & M. 207; Box et al. v. Stanford, 13 Smedes & M. 93, 51 Am.Dec. 142; Howie v. Swaggard, 142 Miss. 409, 107 So. 556. Cf. Delta Lumber Co. v. Wall, 119 Miss. 350, 80 So. 782. To hold otherwise would destroy the purpose of the statute to prevent frauds and perjuries.” 355 So.2d at 661.

See also Cox v. Cox, 289 So.2d 609, 613 (Ala.1974).

The appellant argues that, if there was in existence a contract between appellant and appellee, the latter did not respond to appellant’s purchase order for the 496 lockers, did not deny same within ten (10) days as provided by the statute, and appellee was bound for such failure. However, it is undisputed that on the day of the quote appel-lee confirmed same for 306 lockers and appellant never responded to, nor denied, that confirmation.

We are of the opinion that the chancellor correctly decided these two questions.

III.

Did the court err in holding that the statute of frauds applied to the sale of lockers and installation?

Appellant contends that the quote by ap-pellee was a contract for services as well as a sale and that the service feature removed the contract from the statute of frauds. In Port City Construction Co., Inc. v. Henderson, 266 So.2d 896 (Ala.App.1972), the Alabama Court of Civil Appeals held that a transaction involving work and labor was really a contract for sale and was controlled by the provisions of the Uniform Commercial Code.

In Bonebreak v. Cox, 499 F.2d 951 (8th Cir. 1974), the Federal Court held that the UCC applies in cases involving both sales and services, and the predominant feature of the contract (sales or services) controls to determine the applicability of the statute. In the present case, the contract was essentially for the sale of goods and is governed by the statute.

The judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    Walter L. SMITH v. JITNEY JUNGLE STORES OF AMERICA and United States Fidelity & Guaranty Company.
    No. 51237.
    Supreme Court of Mississippi.
    May 9, 1979.
    Cupit & Maxey, Robert W. Sneed, Jackson, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Kenneth G. Perry, Jackson, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Hinds County; William D. Coleman, Judge.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    Matthew Dean TANNER and Mae Beth Tanner v. S. S. ORSO et al.
    No. 51251.
    Supreme Court of Mississippi.
    May 9, 1979.
    Joe A. Moore, Pascagoula, for appellant.
    John G. Corlew, Robert P. Krebs, Pasca-goula, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    Curtis V. PARKER v. Lula SANDERS.
    No. 51034.
    Supreme Court of Mississippi.
    May 9, 1979.
    Odom & Parrish, J. Ronald Parrish, Laurel, for appellant.
    Aultman & Aultman, Dorranee Aultman, Hattiesburg, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED.


text:
    Frances H. EDWARDS, Administratrix of Estate of J. D. Edwards, Deceased v. L. D. HILL and Quinton Hill, d/b/a Hill and Hill Logging Contractors, and Henry Ford.
    No. 51150.
    Supreme Court of Mississippi.
    May 9, 1979.
    Liston, Crull & Gibson, William H. Liston, Winona, C. P. Fortner, Jr., Eupora, for appellant.
    Meek & Meek, W. B. Meek, Eupora, Ar-mis E. Hawkins, Houston, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Jerry Joseph LADNER, by Jerry Lynn Ladner v. Wendell D. DANIEL.
    No. 51008.
    Supreme Court of Mississippi.
    May 9, 1979.
    Moretón, Woodfield, Raines & Bloss, Keith W. Moreton, Gulfport, for appellant.
    Greaves & Terry, Jerry 0. Terry, Gulf-port, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    Dianne L. HAWKINS v. Jim G. NORRIS-PEARCE.
    No. 51106.
    Supreme Court of Mississippi.
    May 16, 1979.
    Rogers, Morris & Fair, John Alan Morris, Hattiesburg, for appellant.
    Jim G. Norris-Pearce, M.D., pro se.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

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

AFFIRMED.


text:
    UNIVERSAL FINANCIAL & INVESTMENT CORPORATION and Joe Shaeffer v. SHAW CONSTRUCTION COMPANY.
    No. 51160.
    Supreme Court of Mississippi.
    May 16, 1979.
    Taylor, Whitwell & Goeldner, Robert Q. Whitwell, Lawrence W. Vaughn, Southa-ven, for appellants.
    Wilroy & Lee, Richard J. Lee, Hernando, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, DeSoto County; Dick R. Thomas, Judge.

AFFIRMED.


text:
    Homer WARD v. STATE of Mississippi.
    No. 51058.
    Supreme Court of Mississippi.
    May 16, 1979.
    William B. Sullivan, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED.


text:
    Richard E. WALKER v. NORTH AMERICAN FINANCE COMPANY.
    No. 51180.
    Supreme Court of Mississippi.
    May 16, 1979.
    Levi, Denham & Russell, Dempsey M. Levi, Ocean Springs, for appellant.
    Moretón, Woodfield, Raines & Bloss, George F. Bloss, III, Gulfport, for appellee.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer and Darwin M. Maples, Judges.

AFFIRMED.


text:
    O. C. COLLINS v. STATE of Mississippi.
    No. 51228.
    Supreme Court of Mississippi.
    May 16, 1979.
    Carl V. Montgomery, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Quitman County; J. C. Feduccia, Judge.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    McDOWELL-PURCELL, INC. v. Ray D. BASS, etc.
    77-409.
    Supreme Court of Alabama.
    March 23, 1979.
    Rehearing Denied May 11, 1979.
    James E. Clark of London, Yancey, Clark & Allen, Birmingham, for appellant.

      Edward H. Brogden, Jack F. Norton, Chief Counsel, State of Alabama Highway Department, Montgomery, for appellee.
   EMBRY, Justice.

This is an appeal from a judgment which denied the petition of appellant McDowell-Purcell, Inc. seeking a writ of mandamus to compel Ray D. Bass, Alabama Highway Director, to approve and cause payment to appellant of monies according to McDowell-Purcell’s interpretation of the terms of a contract between it and the Alabama Highway Department and contrary to Bass’ interpretation. Release was sought of certain payments under the contract retained by the Alabama Highway Department for work done about which there was no dispute.

The dispositive issue in this case is whether McDowell-Purcell has a clear right to the writ of mandamus, under the facts of this case to compel action by Bass and remove this action from one categorized as being against the State of Alabama, therefore prohibited by Section 14 of the Alabama Constitution, because Bass, in the exercise of discretionary authority, abused that discretion.

The contract between McDowell-Purcell, Inc., and the State of Alabama was for the construction of a section of Interstate 65 in Jefferson County. In constructing the highway it was necessary to blast cuts through large rock formations consisting of shale and lime. Under the contract McDowell-Purcell was required to shore up the sides of the cuts to prevent rock slides. Because layers of shale rock tend to be loosened by erosion from exposure to the weather the shale formations are covered with a pneumatic concrete blanket which is pressure sprayed concrete; a process called “Guniting.” The concrete is applied to a thickness of three inches on steel mesh which is anchored by long metal rods inserted into the shale and secured in place by grout: a thin course mortar.

Unlike shale, lime rock formations are not in layers that are loosened by erosion from exposure to the weather resulting in rock slides. Lime rock has natural seams which when weakened by the blasting necessary to make the roadway cuts create the hazard that in the future large rocks will fall to the roadbed below the cut. To prevent this, pneumatic concrete blankets are not used. Instead, the large rocks, loosened by weakening of their seams, are anchored to the solid rock by inserting and securing in place the long metal rods in the same manner as is the case with shale. These rods are called rock bolts.

The contract required that rock bolts used to anchor lime rocks be of the same type as those used to anchor the steel mesh to shale rock. The price to be paid for installing these rock bolts is the cause of dispute in this case. The contract provided for the payment of four dollars per linear foot for rock bolting. It provided that twenty-five dollars per square yard be paid for pneumatic concrete blanketing. There is no question that for rock bolting the limestone payment was to be at the rate of four dollars per linear foot.

The dispute is whether rock bolting the steel mesh over shale is included in the twenty-five dollars per square yard rate for concrete blanketing or should four dollars per linear foot be paid for that rock bolting in addition to the twenty-five dollars per square yard.

McDowell-Purcell sought payment from the Highway Department of the sum of four dollars per linear foot for all rock bolting. The Department declined to pay and McDowell-Purcell made claim for payment to the Claims Committee of the Department. After an evidentiary hearing the Committee submitted its report to the Highway Department Director: Bass. The report concluded that the contract, plans, and specifications were sufficient to make it clear the cost of the rock bolts used in laying the pneumatic concrete blanket was to be included in the bid price per square yard for blanketing. Bass, although not bound by the Committee’s report, combined the contents of the report with his personal knowledge of the circumstances and denied McDowell-Purcell’s claim. It then filed its petition for the writ of mandamus to compel Bass to make payment of it at the rate of four dollars per linear foot for all rock bolting as well as to release retainage in the amount of $150,000. After trial without a jury, judgment was entered under which relief was denied and this appeal ensued.

There are certain principles of law applicable to this case. Among those are the following: Suits against the State are prohibited by Section 14 of the Constitution of Alabama of 1901 and those dealing with the State are charged with knowledge of this. Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383 (1937). This immunity from suit does not extend, in all instances, to officers of the State acting in their official capacity. Unzicker v. State, 346 So.2d 931 (Ala.1977). In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Inc. 353 So.2d 779 (Ala. 1977); Tennessee & Coosa R.R. Co. v. Moore, 36 Ala. 371 (1860). Action may be enjoined if illegal, fraudulent, unauthorized, done in bad faith or under a mistaken interpretation of law. Wallace v. Board of Education of Montgomery Co., 280 Ala. 635, 197 So.2d 428 (1967). If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. The writ will not lie to direct the manner of exercising discretion and neither will it lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion. See Barnes v. State, 274 Ala. 705, 151 So.2d 619 (1963).

Mandamus is an extraordinary remedy and should be granted only to prevent a failure of justice or irreparable injury. Ex parte Garrison, 260 Ala. 379, 71 So.2d 33 (1954).

McDowell-Purcell contends that because the required rock bolting has been completed and accepted by appellee Bass, all that remains is for Bass to perform a ministerial act: paying McDowell-Purcell for all rock bolting at four dollars per linear foot. Were one other circumstance present we would be compelled to agree. The payment request for the rock bolting by McDowell-Purcell has never been approved by the Highway Department. Had it been, mandamus would lie because all that would remain would be for Bass to make payment. See Dampier v. Pegues, 362 So.2d 224 (Ala. 1978); Hardin v. Fullilove Excavating Co., Inc., 353 So.2d 779 (Ala.1977).

McDowell-Purcell had constructive notice that it could not sue the State over a contract dispute. Section 14, Const.1901. It was furnished the contract, specifications and plans, and was free to consult with officials of the Highway Department concerning any ambiguities it considered present in those documents. If they were not cleared up to McDowell-Purcell’s satisfaction it could have refused to submit a bid. In this case Bass had a duty to either approve or disapprove payment according to one of two different interpretations of the contract. Performance of that duty rested upon his judgemental or discretionary ascertainment of facts or existence of conditions to be applied under the terms of the contract. The writ of mandamus will not lie to compel him to exercise his discretion and apply the ascertained facts or existing conditions under the contract so as to approve payment to McDowell-Purcell according to its interpretation of the contract rather than his. See generally, Ex parte Cannon, 369 So.2d 32, (Ala.1979); Barnes v. State, supra; Gardner v. Stevens, 269 Ala. 213, 111 So.2d 904 (1959).

We hold that the writ of mandamus will lie to compel the exercise of official discretion to interpret a contract, but absent abuse of discretion, or arbitrary or capricious exercise of discretion in the interpretation, the writ will not lie to command a given interpretation. State Highway Commission v. Green-Boots Const. Co., 199 Okl. 477,187 P.2d 209 (1947). In the instant case the trial court held there was no abuse of discretion by Bass in this matter. That finding is presumed correct. Hardin v. Fullilove Excavating Co., Inc., supra, at 783. Review of the record compels us to the same conclusion as that of the trial court regarding abuse of discretion.

McDowell-Purcell additionally contends it is entitled to $150,000 in earned retainage withheld by Bass. This amount was withheld by the Highway Department because McDowell-Purcell refused to sign the “final estimate” prepared by the Highway Department of the amount of various classes of work performed by the contractor. Monies to pay for this work are retained until the final estimate is approved by the contractor. At trial, the evidence showed McDowell-Pureell refused to sign the final estimate because of its rock bolting claim. Bass in turn refused to pay McDowell-Purcell until it signed the final estimate. We hold the trial court was correct in denying McDowell-Pureell’s claim.

Because of our holding that Bass did not abuse his discretion in interpreting the contract, McDowell-Pureell is now free to sign the final estimate and receive the retain-age.

The trial court’s findings of fact and conclusions of law being correct, its judgment is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Rosie KING v. Wayne LANDRUM and Dallas Reeves.
    77-285.
    Supreme Court of Alabama.
    April 6, 1979.
    Rehearing Denied May 4, 1979.

      Donald G. Beebe and Lloyd W. Gathings, of Emond & Vines, Birmingham, for appellant.
    Ollie L. Blan, Jr. and H. L. Ferguson, Jr., of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellees.
   PER CURIAM.

ON REHEARING

The original opinion is withdrawn and the following opinion is substituted therefor.

This appeal involves two issues:

1. The effect of federal removal statutes on Alabama appellate procedures.

2. The right of the widow of a deceased employee covered by Workmen’s Compensation to sue a co-employee of the deceased.

Plaintiff’s deceased husband was fatally injured in a ditch cave-in in Georgia while an employee of a contracting company which was installing a telephone conduit. The deceased employee was a resident of Jefferson County and his employee’s principal place of business was in Birmingham.

Plaintiff’s deceased husband was covered by workmen’s compensation and, as widow, she received the funeral expenses allowable under the act, and has been receiving payments as the dependent widow of the deceased from the workmen’s compensation carrier.

She filed suit in Jefferson Circuit Court against the telephone company (owner), her deceased husband’s employer (contractor), and Wayne Landrum and Dallas Reeves, co-employees of her late husband. She claimed that Landrum and Reeves had the right and duty to control the activity, manner and method in which her late husband performed work for his employer.

Landrum and Reeves moved for summary judgment based upon the 1975 amendments to Title 26, Section 312, Code 1940, now section 25-5-11, Code of Ala. 1975, granting immunity to co-employees from suit by an injured employee. The motion was granted on December 20, 1977, and the court entered a final judgment pursuant to Rule 54(b), ARCP. The telephone company filed a petition for removal to Federal District Court on January 18,1978. On January 23, 1978, plaintiff filed notice of appeal from the Rule 54(b) judgment.

Landrum and Reeves filed a motion to dismiss the appeal in this Court claiming that the removal petition, which was granted, divested the state court of jurisdiction. The Federal District Court subsequently remanded the case back to the circuit court, and appellant filed a motion for this Court to reconsider its prior order dismissing the appeal. This Court granted that motion to reconsider and reinstated the appeal.

MOTION TO DISMISS APPEAL

Should the appeal be dismissed? Appel-lees argue that since the notice of appeal was filed after removal to Federal Court, the notice was a nullity and of no force and effect because state courts lacked jurisdic-' tion over the case. They contend that since no new notice of appeal was filed after remand back to circuit court within 42 days, the time for appeal had expired. Rule 4, ARAP. We disagree.

Assuming, without deciding, that the Federal Court did obtain jurisdiction over all parties to the cause upon the filing of the removal petition, the action resumed its position as though no removal had ever been attempted upon remand to state court. We agree with the holding of the Minnesota Supreme Court where Matson, J., opined:

“. . . It is well settled that jurisdiction once acquired by a state court is continuous though the case has been removed to the United States District Court and later remanded to the state court. The basic correctness of this rule becomes at once apparent if it is borne in mind that the order removing an action to a Federal court does not terminate the state court’s JURISDICTION but merely stays or interrupts proceedings in that court pending a disposal of the action by the Federal court.” Doerr v. Warner, 247 Minn. 98, 76 N.W.2d 505, 512 (Minn.1956).

Appellant’s notice of appeal was not void, it was merely stayed until the case was remanded to the state court. In other words, this Court’s jurisdiction to consider the appeal, stayed while the removal petition was being considered in the Federal Court, was immediately quickened again when the cause was remanded.

SUIT AGAINST CO-EMPLOYEES

The second issue involves the immunity provisions of Title 26, Section 312, Code 1940, as they pertain to actions against co-employees. The circuit court’s grant of summary judgment in favor of Landrum and Reeves on the basis of these Code sections was correct. Slagle v. Parker, 370 So.2d 947 (Ala.1979).

APPLICATION FOR REHEARING GRANTED; AFFIRMED; MOTION TO DISMISS APPEAL DENIED.

All Justices concur in Part I.

TORBERT, C. J., and MADDOX, J., concur in Part II.

BLOODWORTH, ALMON and SHORES, JJ., concur specially in Part II.

FAULKNER, JONES, EMBRY AND BEATTY, JJ., dissent, as to Part II.


author: MADDOX, Justice. BLOODWORTH, Justice SHORES, Justice EMBRY, Justice BEATTY, Justice

text:
    Rudolph SLAGLE v. Luther PARKER et al. Helen J. HAMRICK et al. v. UNITED STATES PIPE & FOUNDRY CO. et al. Elcer Mae MASON et al. v. Randy ADAMS et al.
    77-110, 77-218 and 77-499.
    Supreme Court of Alabama.
    April 6, 1979.
    Rehearing Denied May 4, 1979.

      Larry S. Vines and Donald G. Beebe, Birmingham, for Rudolph Slagle and Elcer Mae Mason, appellants.
    John B. Tally, Jr. and Robert D. Hunter, Birmingham, for appellees.
    David D. Wininger, Birmingham, amicus curiae, in behalf of appellants on rehearing.
   MADDOX, Justice.

The parties agree that the issues presented in these appeals are:

1. Do the provisions of amendments to the Workmen’s Compensation Act which immunize a co-employee against suit for a covered accident apply to wrongful death actions?

2. Does the statute which grants immunity to co-employees violate the equal protection and due process clauses of the Alabama and United States Constitutions?

The facts succinctly stated are:

Dennis Slagle, in the course of his employment with the Reynolds Metals Company, suffered fatal injuries. Slagle was survived by no dependents. Reynolds Metals Company has paid all benefits due under the Workmen’s Compensation Act on account of Slagle’s death. Defendants Luther Parker, J. F. Newman, Danny Altman, Ed Miller, and Leon Folsom were co-employees of the decedent.

Max Mason, in the course of his employment with the Buchanan Contracting Company, suffered fatal injuries. Buchanan Contracting Company has paid all benefits due under the Alabama Workmen’s Compensation Act. It is alleged that the plaintiff, Elcer Mae Mason, was the dependent mother of the decedent. Defendants Randy Adams, A. W. Henson, Billy Alverson and Howard Buchanan were co-employees of the decedent.

Douglas Hamrick, in the course of his employment with United States Pipe & Foundry Company, suffered fatal injuries. United States Pipe & Foundry has paid all benefits due under the Alabama Workmen’s Compensation Act. It is alleged that the plaintiff was a dependent of the decedent. Defendants Max Edward, Max Powell, Cecil Colburn, Sam Smith, C. H. Campbell, Howard Roper, Jim Bradfield and Paul Atchison were co-employees of the decedent.

All three deaths occurred after the enactment of the 1973 or 1975 amendments to § 312 of the Alabama Workmen’s Act (now Code 1975, § 25-5-11) which immunized employees from suit by their co-employees arising from job-related accidents. These amendments are Act No. 1062, § 26, Acts of Alabama, 1973, and Act No. 86, 4th Ex. Sess., § 10, Acts of Alabama, 1975.

We hold that the legislature could grant immunity to co-employees of a decedent covered by the Workmen’s Compensation Act from suit for wrongful death where the death arose out of a job-related accident, and, therefore, we affirm the grant of summary judgment in each case.

Appellants, representatives of the de-ceaseds, argue that this Court, in Grantham v. Denke, 359 So.2d 785 (1978) and Pipkin v. Southern Electrical and Pipe Fitting Co., Inc., 358 So.2d 1015 (1978), squarely and forthrightly declared these immunity provisions violative of Section 13 of the Alabama Constitution, and that Section 13 makes no distinction between common law and statutory causes of action. In short, they claim Grantham and Pipkin are dispositive of the first issue.

Appellants argue as to the second issue that to hold co-employee immunity still in effect in wrongful death cases when it has been declared void in personal injury cases, would be violative of equal protection provisions of both the Alabama and United States Constitutions. They say there would be no reasonable purpose for such disparate treatment.

Appellants’ arguments are persuasive, but to adopt them would be to overturn many prior judicial interpretations which have been rendered on the character and nature of wrongful death actions.

In Alabama, actions for wrongful death are purely statutory. No such action was known at common law. White v. Ward, 157 Ala. 345, 47 So. 166 (1908); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911). Since the right to bring an action for wrongful death is a product of the legislature, it can be modified, limited, or repealed as the legislature sees fit, except as to causes of action which have already accrued. Slagle v. Reynolds Metals Company, 344 So.2d 1216 (Ala.1977); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). Thus in the previous appeal of the Slagle case, 344 So.2d 1216, this Court held it constitutionally permissible for the legislature through the Workmen’s Compensation Act to deprive a father of his right to sue for the wrongful death of his son under § 6-5— 391. There the Court stated:

“The Legislature could take away all remedy for injuries resulting in death, or condition it as it saw fit. It could provide, as it has done under the Workmen’s Compensation Act, and as it does in many death damages cases in other states, for a strictly limited kind of recovery.” 344 So.2d at 1218 [Emphasis in original], citing Patterson v. Sears Roebuck & Co., 196 F.2d 947 (5th Cir. 1952).

The causes of action upon which these three appeals are based all arose after the effective date of the 1973 or 1975 amendments which granted immunity from suits by employees injured in the course of their employment to all employees covered by the Workmen’s Compensation Act. None of the plaintiffs had any vested right which was a “property” protected by the Due Process clause. The amendments are not violative of the Due Process clause of the Fourteenth Amendment to the United States Constitution, or of any provision of the Alabama Constitution.

AFFIRMED.

TORBERT, C. J., concurs.

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

FAULKNER, JONES, EMBRY and BEATTY, JJ., dissent.

BLOODWORTH, Justice

(concurring specially).

I concur in the opinion for the court authored by Justice Maddox. It is consistent with Grantham v. Denke, 359 So.2d 785 (Ala.1978), which held that co-employee immunity “would deprive [an injured employee] of rights and remedies he enjoyed under the common law which are preserved under § 13 of our constitution.” Id. at 787 [Emphasis supplied.] Grantham also stated that the 1947 amendment to the workmen’s compensation legislation “was merely declaratory of the common law rights of the injured employee as they existed before its enactment and as preserved by § 13 of our constitution.” Id. at 788 [Emphasis supplied.] Because wrongful death actions are purely statutory, the reasoning of Grant-ham does not apply to the instant cases. I agree with Justice Maddox that what the legislature has given, it may take away so long as the right has not vested.

I also agree with Justice Shores who notes that an anomalous situation now exists — “A co-employee can be sued for personal injury, but not for wrongful death.” But, anomalies do not dictate results.

ALMON, J., concurs.

SHORES, Justice

(concurring specially).

This result is logically sound, but Gran-tham v. Denke, bottomed as it is on § 13 of the Constitution of 1901, compels it. A curious situation now exists. A co-employee can be sued for personal injury, but not for wrongful death. That result is dictated by Grantham v. Denke, however.

EMBRY, Justice

(dissenting):

I respectfully dissent from the opinion of the majority and would agree with my brother Beatty in that part of his dissent wherein he would hold that immunity from suit granted to co-employees under the provisions of Code 1975, § 25-5-11, is a violation of the equal protection clause, Amendment Fourteen to the Constitution of the United States. I would further hold that such immunity violates the equal protection of the laws provisions of the Constitution of Alabama found in Sections 1, 6 and 22. See generally Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978).

I vehemently disagree with the statement in my brother Beatty’s dissent that the rationale of the majority in Grantham was erroneous. In my judgment, the rationale is entirely sound and amply supported by reason and the authorities cited in that opinion. In my view, additional support of the rationale in Grantham may be found in the equal protection clause of the Fourteenth Amendment to the United States Constitution and the equal protection of the laws provisions of the Alabama Constitution.

In my bother Beatty’s present view, which obviously differs from the belief he entertained when concurring in Grantham, he would approve the right of the Legislature to abolish causes of action. He cites as examples of that right the constitutionality of our motor vehicle guest statute, Code 1975, § 32-1-2, when tested against § 13 of the Alabama Constitution, as well as the abolition of actions for alienation of affections, criminal conversation, seduction of females of 21 years and over, and for breach of promise to marry. That is not inconsistent with the rationale of Gran- tham. In each instance, both with regard to the constitutionality of the guest statute, and abolition of the causes of action enumerated, there was the overriding police power consideration to eradicate a perceived social evil. In Grantham, the majority pointed this out regarding the guest statute.

FAULKNER, J., concurs.

BEATTY, Justice

(dissenting):

The defendants/appellees have placed in issue the effect of Section 13 of the Alabama Constitution upon actions for wrongful death. But they go further and challenge this Court’s construction of Section 13 contained in Grantham v. Denke, 359 So.2d 785 (Ala.1978). A review of that section’s history, together with this Court’s interpretations of it, has convinced me that our rationale in Grantham was erroneous; that the decision should have been supported by other principles. Because I concurred in the majority opinion in Grantham, I believe it is incumbent upon me to correct what, I am now convinced, was an incorrect basis in law for that decision. And I regret that my brother Embry’s disappointment in my attempt to explain my redemption has caused such a vehement response.

In Grantham we held that Section 13 preserved a right of action and preserved a remedy for its enforcement, thus preventing the legislature from abrogating any cause of action which an employee covered under Workmen’s Compensation would have against a fellow employee. Our theory was that such a common law “right” could not be so limited because there was no elective substitute remedy, and thus any legislative action to the contrary was effectively prevented. Analogy to a similar Arizona constitutional provision was utilized in reaching that conclusion.

Rather than being dependent upon a similar provision of a sister state, the interpretation of Section 13 reasonably ought to be governed by pertinent decisions of our own Court unless, of course, these in themselves are misconceived. Cf. Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978).

As stated in Swann & Billups v. Kidd, 79 Ala. 431, 432 (1885) (construing the precursor of Section 13 contained in the Alabama Constitution of 1875):

This clause is known to have been taken in substance from Magna Charta; and history shows that its chief purpose was to assail the existing evil of anciently holding courts in clandestine sessions, and of paying fines to the king and his officers, for delaying or expediting lawsuits, and for obtaining justice.

See also State v. Bush, 12 Ala.App. 309, 312, 68 So. 492 (1915).

Further explanation was made by this Court in Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939), a case in which the “guest statute” was challenged because its adoption had eliminated a cause of action in negligence against an automobile operator, a cause of action which had existed at common law. Writing directly to the meaning of Section 13 our Court stated at 545, 192 So. at 263-264:

It will be noticed that this provision preserved the right to a remedy for an injury. That means that when a duty has been breached producing a legal claim for damages, such claimant cannot be denied the benefit of his claim for the absence of a remedy. But this provision does not undertake to preserve existing duties against legislative change made before the breach occurs. There can be no legal claim for damages to the person or property of any one except as it follows from the breach of a legal duty.
Undoubtedly the right to the remedy must remain and cannot be curtailed after the injury has occurred and right of action vested, regardless of the source of the duty which was breached, provided it remained in existence when the breach occurred. . . . This includes such items of damages as were legally subject to recovery at the time of the breach.
But section 13, supra, does not in language, nor intent, prevent the legislature from changing a rule of duty to apply to transactions which may occur thereafter. If there exists any such prohibition it must be found elsewhere in the Constitution.

Thereafter the Court explored other aspects of constitutional law relevant to the change of law in question, but those later considerations did not modify its view of Section 13. My brother Embry’s continuing analysis of his opinion in Grantham simply fails to appreciate the prior decisions of this Court interpreting that constitutional section. Pickett v. Matthews, supra.

The views contained in Pickett are consistent with other changes. Young v. Young, 236 Ala. 627, 184 So. 187 (1938) discusses with approval the legislature’s abolishing actions for alienation of affections, criminal conversation, seduction of females of 21 years and over, and for breach of promise to marry. Accord (as to alienation of affections and criminal conversation), Henley v. Rockett, 243 Ala. 172, 8 So.2d 852 (1942).

Nevertheless, I believe that the immunity from suit granted by the provision in question to the class of “co-employees” is a violation of the equal protection clause, Amendment Fourteen, United States Constitution. This result follows when the classification is measured against the test set forth in F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561-562, 64 L.Ed. 989 (1920):

[t]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation .

Admittedly the Workmen’s Compensation statutes were and are sui generis, creating new rights and remedies based upon a conception of compensation independent of existing theories of the common law, Pound v. Gaulding, 237 Ala. 387, 187 So. 468 (1939), and intended to operate between master and servant as a substitute for other theories of recovery for personal injuries. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). However, while there may have been indirect or unsubstantial objects in their enactment, their primary purpose was to require industry to “bear part of the burden of disability and death, resulting from the hazards of industry.” Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938). That being their main object, and given their beneficent character, cf. Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), I fail to discern any purpose in the overall object of the legislation to limit the employee’s recourse beyond the industry-master-employer relationship. So much of the classification in question which grants immunity to certain co-employees is therefore not consonant with and thus bears no “fair and substantial relation” to the “object of the legislation.”

This conclusion also leads me to believe that the classification established is an arbitrary one, for if the purpose of the legislation is to make industry bear part of the losses which are due to industrial accidents, why is it necessary to prohibit suits against co-employees who may also be responsible, as other citizens are by law permitted to do? Cf. Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978); Norris v. Seibels, 353 So.2d 1165 (Ala.1977). In my view, therefore, to deny the covered employee or his survivor the opportunity to pursue a tortfeasor under these circumstances results in an arbitrary classification equating a denial of equal protection. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

JONES, J., concurs.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    In re CONTINENTAL OIL COMPANY v. Joe C. WILLIAMS. Ex parte Continental Oil Company.
    77-722.
    Supreme Court of Alabama.
    April 6, 1979.
    Rehearing Denied May 4, 1979.
    J. Edward Thornton, Mobile, for petitioner, Continental Oil Co.
    William H. Saliba, Mobile, for respondent, Joe C. Williams.
    Charles J. Fleming of Armbrecht, Jackson, Demouy, Crowe, Holmes & Reeves, Mobile, for Honorable Braxton L. Kittrell, Jr., Circuit Judge of the Thirteenth Judicial Circuit.
   FAULKNER, Justice.

Continental Oil Co. seeks a writ of mandamus to the Honorable Braxton L. Kitt-rell, Jr., circuit judge of the Thirteenth Judicial Circuit. 4s it appears to this Court that the requested relief has been granted and all other issues presented must be raised by appeal, the writ is denied.

The petition for mandamus arises from the long-pending suit of Continental Oil Co. v. Joe C. Williams. That suit was originally filed in 1973 and was inherited by Judge Kittrell when he took office in January, 1977. In the late spring of 1978 the following events took place which precipitated the petition for mandamus:

On May 10 Continental filed a motion to dismiss certain counterclaims filed by Williams, alleging that Williams was in default in answering interrogatories. The motion to dismiss the counterclaims was granted on May 17, but on that same day the requested answers to the interrogatories were filed. Consequently, on May 22 Williams moved to set aside the May 17 order of dismissal so that the counterclaims could proceed to trial. On June 2 Judge Kittrell entered an order, “Motion granted. Order of May 17, 1978, set aside. Counterclaim pending.” However, in the interval between May 17 and May 22 while the counterclaims were technically dismissed from the case, Continental had filed its own motion to dismiss with prejudice which had not yet been acted upon. Continental, therefore, filed a motion to reconsider and set aside the order of June 2, and for other relief. This latter motion was denied in the following form:

“Plaintiff’s motion filed July 11, 1978 for court to reconsider, set aside and hold for naught the order of June 2, 1978; Grant Plaintiff’s motion to dismiss this suit, with prejudice and at the cost of Plaintiff; Deny any amendment of the order dismissing the counterclaim; Strike the counterclaim; Hold that the counterclaim, having been dismissed and the order of dismissal not having been set aside, is no longer pending and no further proceedings can be had thereunder; and grant Plaintiff such other relief. July 28, 1978 — Motion denied. s/BRAX-TON L. KITTRELL, Circuit Judge.”

With the ease in this posture Continental sought mandamus to compel Judge Kittrell to grant its motion to dismiss its claims with prejudice, asserting that he had no authority to deny the motion. Continental also presented to this Court a variety of reasons why, in its opinion, the counterclaims should have been dismissed. On November 2 Judge Kittrell, apparently on his own initiative, entered the following order:

“It having come to the attention of the Court that this Court entered an order on July 28, 1978, which said order, among other things, denied the Plaintiff the right to dismiss its suit, with prejudice, at the cost of the Plaintiff; and the Court having intended in said order to grant the Plaintiff the right to dismiss its suit as prayed, but to deny the remaining portions of the Plaintiff’s motion filed on July 11, 1978; and said order of this Court of July 28, 1978, having been erroneously entered through oversight or omission, this Court, pursuant to Rule 60(a) of the Alabama Rules of Civil Procedure, orders as follows:
“That the Clerk of this Court is instructed to correct this Court’s order of July 28, 1978, so as to reflect that the Plaintiff’s action is dismissed, with prejudice, and the remaining portions of the Plaintiff’s motion of July 11, 1978 are denied, including the prayer to strike the Defendant’s counterclaim.” (Emphasis added.)

Rule 60(a) ARCP, which substantially parallels its federal counterpart, provides:

“Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ.”

The term “clerical errors” is not limited solely to errors by the clerk in transcription. It can also include errors by others, such as a jury foreman, counsel, a party, or the judge himself. 13 A.L.R.Fed. 794, § 4. When a correction is based upon the recollection of the court it is not subject to contest. 13 A.L.R.Fed. 794, § 2. Here Judge Kittrell has stated in his order of November 2 that he intended to grant the motion to dismiss but did not do so through oversight or omission. Thus his action was within the scope of Rule 60(a). A similar order was allowed in Blaine v. Peters, 90 U.S.App.D.C. 207, 194 F.2d 887 (1952), where the District Court inadvertently denied a motion for a judgment notwithstanding the verdict, or in the alternative for a new trial. Two months later the District Court set aside the denial and granted the motion for new trial in a Rule 60(a) correction. Since Continental has received the relief it requested, albeit from Judge Kitt-rell rather than this Court, the petition for mandamus is moot.

Continental also seeks to present to this Court on mandamus the propriety of the refusal to dismiss the counterclaims. Mandamus, however, is an extraordinary writ to be used only in situations where other relief is unavailable or inadequate and is not a substitute for the appellate process. See Ex parte Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala. 1978). The Alabama Rules of Appellate Procedure in Rule 5 provide a simple and effective method of obtaining appellate review of an order such as the one allowing the counterclaims to remain pending. If Continental sought to challenge that order it should have done so through Rule 5, ARAP, at the appropriate time.

WRIT DENIED.

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

TORBERT, C. J., concurs specially.

MADDOX, J., concurs in the result.

TORBERT, Chief Justice

(concurring specially):

Continental obtained part of the relief sought in its petition for mandamus with the dismissal of its claim in the November 2 order; therefore, mandamus is inappropriate. However, I disagree with the majority’s treatment of Rule 60(a).

Although there is no precise delineation in the cases construing Rule 60(a) of the ARCP or its federal counterpart as to what constitutes a “clerical mistake or error arising from oversight or omission,” generally it can be said that the rule allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry of the order. The rule contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents — a mistake mechanical in nature which does not involve a legal decision or judgment. In re Merry Queen Transfer Corp., 266 F.Supp. 605 (E.D.N.Y.1967). In this respect is has been stated that:

Rule 60(a) is concerned primarily with mistakes which do not really attack the party’s fundamental right to the judgment at the time it was entered. It permits the correction of irregularities which becloud but do not impugn it. To that end 60(a) permits, inter alia, reasonable additions to the record. In contrast, Rule 60(b) is concerned with changing a final judgment, etc. In such a case the moving party understandably shoulders a much heavier burden.

United States v. Stuart, 392 F.2d 60, 62 (3rd Cir. 1968). Corrections involving an exercise of judicial discretion or judgment modifying or enlarging a judgment or order are beyond the purview of Rule 60(a) and should properly be effected under Rule 59(e) or 60(b). “Thus a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.” Wright & Miller, Federal Practice & Procedure § 2854, at 149 (1973). This court has stated:

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been.

Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900).

Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court’s initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So.2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961); Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So.2d 291 (1951).

In Ex parte ACK Radio Supply Co. of Georgia, supra, the record revealed contradictory orders in the same case and the trial court filed an affidavit explaining how the erroneous order came about. In Busby, the record reflected the existence of the trial court’s notes manifesting his intent to continue an application for rehearing although he failed to enter a written order to that effect at the time.

In the instant case, there is nothing in the record to show that Judge Kittrell intended anything other than what the July 28 order decreed. Apparently, the language employed in that order did not accurately reflect what Judge Kittrell intended for in his answer to the petition for mandamus, he states:

During the course of the mandamus proceedings the trial court became aware that its order of July 28th denying the Plaintiff’s motion to reconsider and for a rehearing was not entirely clear in that sub-part B of the Plaintiff’s motion requested the court to dismiss the Plaintiff’s suit. Thus, the court entered a subsequent order dated November 2,1978 to clarify its order of July 28th to reflect that the Plaintiff’s action was dismissed with prejudice and the remaining portions of the Plaintiff’s motion to reconsider were denied.

However, there is nothing in the record which indicates any ambiguity in the July 28 order nor are there any notes of the trial court or bench memoranda indicating that he intended anything other than what his order decreed. Moreover, correction or amendment pursuant to Rule 60(a) should not be the means of modifying or enlarging a judgment so that it expresses something which the court did not pronounce even though such correction or amendment embraces matters that should have been clearly pronounced. See Tombrello Coal Co. v. Fortenberry, supra. Although a trial court may amend or correct a prior order under Rule 60(a) to remedy ambiguous language or to state what he actually intended, there must be some spark or glimmer from the record evidencing what that intention was. See Id.

The majority relies upon Blaine v. Peters, 90 U.S.App.D.C. 207, 194 F.2d 887 (1952), as sanctioning Judge Kittrell’s order of November 2. In Blaine, a motion for new trial was immediately denied upon its being filed. Several months later, the trial court set aside the denial and granted a new trial stating that it had “inadvertently” denied the motion upon initial consideration. The action of the trial court was affirmed on appeal; however, the nature of the inadvertence was not explained. Since there was no explanation of the inadvertence, it is impossible to tell whether the case presented a proper application of Rule 60(a). 6A Moore’s Federal Practice ¶ 60.-06[4], at 60 (2d ed. 1974).

Continental also asserts that mandamus should issue to compel the trial court to dismiss the counterclaim. In essence, the resolution of this issue depends upon whether the ARCP or prior civil practice applies to the counterclaim. However, this issue is not properly presented by a petition for mandamus, and regardless of the validity of Continental’s contentions on the merits, procedurally we are precluded from review with the case in its present posture.

Mandamus is not appropriate if the issue can be ultimately presented on an appeal from a final judgment. See, e. g., Martin v. Martin, 267 Ala. 600, 104 So.2d 302 (1958); Ex parte Little, 266 Ala. 161, 95 So.2d 269 (1957). Some exceptions to the general rule are cataloged in Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955). See also Miller v. Holder 292 Ala. 554, 297 So.2d 802 (1974). Without attempting to reconcile the exceptions into a definitive statement, suffice it to say that mandamus may be used in the nature of an emergency appeal to review an interlocutory order where appeal from a final judgment would not afford adequate relief. However, expense and inconvenience are not sufficient to work an exception to the rule. Ex parte Moss, 278 Ala. 628, 179 So.2d 753 (1965); Martin v. Martin, supra; Ex parte Little, supra.

Continental can adequately assert its contentions as to the impropriety of allowing the counterclaim by appeal following final judgment on the merits. The fact that it must litigate the action is insufficient to warrant issuance of the writ. Since Continental’s allegations are reviewable on appeal, the petition for mandamus is properly denied.


author: BEATTY, Justice.

text:
    Ernest WATERS v. UNION BANK OF REPTON et al.
    77-540.
    Supreme Court of Alabama.
    May 4, 1979.

      Sam Welch, Pine Belt Legal Services, Monroeville, for appellant.
    Winded C. Owens, Monroeville, for appel-lees.
   BEATTY, Justice.

This is an appeal by Ernest Waters from final judgments returned in favor of Carl Ryals and the Union Bank of Repton (Bank). We affirm.

On April 17, 1977 Ernest Waters brought an action against the Bank and Ryals. He claimed damages from Ryals for work and labor done, for libel in publishing untrue statements that Waters was in default on his indebtedness to the Bank, and for fraud in inducing Waters to become indebted to the Bank. He claimed damages from the Bank for libel resulting from its agent Ryals’ publication of untruths concerning Waters’ default on the indebtedness to the Bank.

On May 18,1977 the Bank filed a statutory detinue action against Waters for possession of a mobile home which was listed as collateral on Waters’ promissory note at the Bank. Waters answered the detinue complaint and counterclaimed against the Bank for libel (which he had also claimed as a part of his earlier action). In the Bank’s action Waters also filed a third-party complaint by adding a count averring a partnership between himself and Ryals, and demanding an accounting and judgment against Ryals for his share of the profits arising from an alleged farm equipment and cattle partnership.

The actions were consolidated for trial. Ryals was substituted for the Bank as plaintiff in the second action because he , had paid the indebtedness sued on and taken an assignment of the note involved.

After hearing the evidence ore tenus the trial court found that Waters was not entitled to recover from the Bank and Ryals in his action, and found for Ryals as third party defendant and against Waters as third party plaintiff in the second action. Waters’ motion for a new trial was denied. This appeal followed.

The relationship between Waters, Ryals and the Bank began in 1971 while Waters was doing part-time collection work for the Bank and when Waters contended that he and Ryals became partners to buy and sell used farm equipment. According to Waters, Ryals was to find interested purchasers through his work at the Bank and Waters was to find, purchase, and repair the needed farm equipment through financing by the Bank. The equipment would be sold by Waters in his name and the purchaser would finance the transaction through Ryals and the Bank. The purchaser would pay his loan to Waters who would deposit the entire amount, including profits, in the Bank. Waters contended that the profits and losses were to be divided equally and that he never received any money. Ryals denied the existence of any partnership and maintained that money received from these sales was either deposited in Waters’ personal checking account or credited against one of Waters’ bank notes. These farm equipment transactions allegedly continued until 1978.

In the early part of 1973 Ryals sold some cattle to a Mrs. Watson. After this sale Waters contended that he and Ryals entered into a partnership to buy and sell cattle under which Ryals was to furnish the pasture land, supplies, the money, maintain the partnership books, and file the tax returns; Waters was to raise and sell the cattle. According to Waters the cattle transactions which did occur were conducted in a manner similar to the farm equipment sales. Again, Ryals denied any partnership in the cattle business.

During the period of these cattle transactions, approximately the next three years, Waters was allowed virtually unlimited credit by the Bank. He was permitted to overdraw his personal checking account in substantial amounts and was also authorized to draw checks on Ryals’ personal checking account. Ryals contended that the overdrafts were allowed as a personal favor to Waters and that he personally guaranteed one of the notes to avoid problems with banking examiners and with the Bank for overextension of credit on deficient security. He felt that he had made a poor decision and did not intend to allow the Bank to lose money as a result of it.

In January, 1974 Waters purchased a used mobile home which he placed on a foundation on land owned by his parents. A curtain wall was placed around the base, straps were cemented down, cement porches were poured, and a carport was attached. On January 25, 1974 Waters executed a promissory note for $5,550.71 due January 25, 1975, payable to the Bank, with the mobile home listed as collateral. The Bank took a written security agreement covering the mobile home and filed a financing statement. An additional loan of $1,205.85 was made on the mobile home note on March 27, 1974, and was due January 25, 1975. On July 31, 1975 Waters obtained from his parents a deed to the land on which the mobile home had been placed. This deed was not filed in the probate judge’s office until May 26, 1978.

Whether this note was satisfied was also disputed. Ryals and the Bank contended that it was not paid off but only renewed, and that subsequently this note was consolidated with other renewed notes into one note, a “big note.” Waters contended that all of the payments he periodically made to the Bank were understood by Ryals to be applied to the mobile home indebtedness and, accordingly, that debt was satisfied.

On September 6, 1975 Waters signed a promissory note and security agreement for $29,602.42 payable to the Bank, due March 6, 1976. This note, the “big note,” combined and renewed all Waters’ unpaid notes held by the Bank, including notes in his name used to provide the money to purchase the alleged partnership cattle, notes to cover overdrafts for personal expenses and, according to Ryals and the Bank, the renewed note on the mobile home. Waters contended that this “big note” was blank when he signed it, and that it was understood between himself and Ryals that the collateral was to be the alleged partnership cattle and a truck owned by Waters. The note and security agreement actually listed the truck, some of the cattle, and Waters’ mobile home as collateral. Waters claimed that when he was shown a copy of the note some time later he protested the inclusion of his mobile home as collateral.

On March 8, 1976 Waters executed a renewal note for $31,119.32 due September 6, 1976 renewing the “big note” of September 6, 1975. On November 1, 1976 he executed another note for $26,102.54, payable on May 6,1977, renewing the note of March 8,1976. He contended that both of these notes were blank when signed. Ryals disputed that contention.

Shortly after the second renewal Waters contended he asked Ryals to settle up on the partnerships giving Waters his share of the profits. Then, during the first week of December, 1976, the Bank declared the note due and payable and foreclosed on its security agreement by taking possession of the cattle listed as collateral on the renewed “big note” under a provision of the note agreement allowing such an action if the collateral became unsatisfactory to the Bank. The Bank claimed the collateral unsatisfactory because Waters was letting the cattle die of starvation.

Waters has asserted two issues on this appeal. First, he argues that the trial court committed reversible error in ruling in favor of Ryals on the third-party complaint filed by Waters alleging a partnership and requesting an accounting. He contends that such a finding is against the preponderance of the evidence and it palpably wrong and manifestly unjust. We find, however, that the trial court’s verdict is supported by credible evidence.

A partnership is “an association of two or more persons to carry on as co-owners a business for profit.” Code of Ala.1975, § 10-8-2(7).

A partnership arises only from an express or implied agreement among the parties and is never established by implication or operation of law, at least in the situation where the dispute concerning the existence of a partnership is between the parties. Cox v. Fielding, 24 Ala.App. 68, 130 So. 164 (1930). The surrounding circumstances as well as any express agreement between the parties may evidence the intention of the parties necessary to establish such a relationship. Hair v. Beall, 274 Ala. 699, 151 So.2d 613 (1963).

The evidence in this case was greatly disputed. The trial court heard all the evidence, examined the exhibits offered, and observed the demeanor of the witnesses. It decided under the circumstances surrounding these business transactions that it was not the intention of Waters and Ryals to act as a partnership. From an examination of the entire record we must conclude that the evidence supports that conclusion, and consequently there was no basis provided for a partnership accounting. There was no evidence of any written partnership agreement or a partnership bank account, and no sales in a partnership name. Cattle were bought and sold by both parties each in his own name. All the farm equipment was bought and sold in Waters’ name alone. Expenses in the cattle raising operation were always incurred in the parties’ individual names. Profits from these business transactions were not divided between the parties. All of the money made on the sales was either deposited in Waters’ personal account at the Bank or credited against debts he owed that Bank. None of the notes Waters signed to obtain the money to purchase the used farm equipment and cattle was signed by Ryals. There was evidence that Ryals voluntarily became personally liable to the Bank on one of Waters’ notes to avoid potential problems with bank officials and examiners because he had overextended credit to Waters on deficient security. The trial court’s decision in a case heard ore tenus will be affirmed if it is “fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust.” Whitt v. McConnell, Ala., 360 So.2d 336, 337 (1978).

Waters also contended that the trial court committed reversible error by ruling that Ryals held a valid and enforceable security interest in Waters’ mobile home under a written security transferred to him by the Bank and that Ryals was entitled either to its possession or to a judgment for its value. Waters argues that the mobile home was attached to the realty before the Bank made any loan listing the mobile home as collateral, and therefore the mobile home could not be the subject of a security interest under the Uniform Commercial Code. Once the mobile home was attached to the realty as a fixture and he and his wife moved into it, he argues, the mobile home became subject to his wife’s homestead rights and he did not then have the power to encumber it without the voluntary assent and signature of his wife as required by Code of Ala.1975, § 6-10-3.

We hold that both of these arguments are without merit. The first because of the fact that in this ease whether the security agreement attached before or after the “mobile home” became a fixture is irrelevant. See § 7-9-313(3). This follows from the fact that between debtor and creditor, a security agreement is effective according to its terms under § 7-9-201, if the provisions of § 7-9-203 and § 7-9-204 are met.

Section 7-9-203 provides in pertinent part that:

[A] security interest is not enforceable against the debtor or third parties unless:
(a) The collateral is in the possession of the secured party; or
(b) The debtor has signed a security agreement which contains a description of the collateral. .

Section 7-9-204 provides in pertinent part:

(1) A security interest cannot attach until there is agreement (subsection (3) of section 7-1-201) that it attach and value is given and the debtor has rights in the collateral. .

It was of importance to the Bank that it have a valid Article 9 security interest, not to establish priority against another creditor, but to gain the preferred creditor status and extra-judicial remedies that the Alabama U.C.C. confers. See § 7-9-501. Without the Article 9 security interest the creditor would be limited to pre-Alabama U.C.C. law which placed, not creditors, but debtors in the favored position. Cf. Clark Equipment Co. v. Armstrong Equipment Co., 431 F.2d 54 (5th Cir. 1970). From the record we find that a valid Article 9 security interest was obtained by the Bank in the mobile home and hold that such interest was enforceable. § 7-9-203.

Waters’ homestead argument likewise is untenable. He asserts that when he and his wife moved into the mobile home after attaching it to the realty it became their homestead and thus he could not encumber it without the assent and signature of his wife.

A homestead exemption is allowed every resident of the state with the improvements and appurtenances thereon, not to exceed $2,000.00 in value and 160 acres in area. Code of Ala.1975, § 6-10-2. Such liens, however, are not affected by this exemption. Code of Ala.1975, § 6-10-4 provides:

The provisions of this article shall not, however, be so construed as to prevent any lien attaching to the homestead in favor of any laborer, merchant or materi-alman for work and labor done or for materials furnished, or in favor of any vendor for unpaid purchase money or so as to affect any deed, mortgage or lien on such homestead, lawfully executed or created.

Accordingly, even assuming that homestead rights were created by Waters’ occupancy of the mobile home on the land, they would not have prevailed against the vendor’s lien. Cf. Martin v. First National Bank of Opelika, 279 Ala. 303, 184 So.2d 815 (1966); Cates v. White, 252 Ala. 422, 41 So.2d 401 (1949).

There being no reversible error, the trial court’s judgment must be, and is, affirmed.

AFFIRMED.

All the Justices concur.