author: SHORES, Justice. BEATTY, Justice

text:
    STATE of Alabama ex rel. Louis P. LOCKE and Carolyn Locke v. Honorable Thomas F. SWEENEY.
    SC 2452.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Larry U. Sims and Champ Lyons, Jr., Mobile, for appellants.
    No brief for appellee.
    M. A. Marsal and Wayne Morse, Jr., Mobile, for Richard M. Carroll, amicus curiae.
   SHORES, Justice.

In this case the appellants question the legality of the appointment by a presiding circuit court judge of a district court judge to preside over a felony trial within their judicial circuit.

On December 10, 1976, Richard Maury Carroll was indicted by the grand jury of Mobile County for the commission of a felony. During the following month, the presiding judge of the Mobile County Circuit Court assigned the further proceedings under that indictment to The Honorable Thomas F. Sweeney, a judge of the General Sessions Court of Mobile County (a district court). The relators, parents of the person whose death resulted in the indictment, brought a quo warranto action in the Circuit Court of Mobile County challenging the right of Judge Sweeney to exercise the office of circuit judge in those criminal proceedings. That court dismissed the quo warranto complaint with prejudice, and the relators appeal that decision.

Briefly, the relators contend that neither the Alabama Constitution, the statutes implementing the Judicial Article, nor Rule 13 of the Rules of Judicial Administration allow a presiding circuit court judge to appoint a district court judge to sit as a circuit court judge in a criminal proceeding. Taking a position contra, the amicus curiae, Richard Maury Carroll, also contests the right of the appellants to bring this proceeding by way of quo warranto.

We find, first of all, that these petitioners had standing to initiate this quo warranto proceeding. The question of the standing of an individual citizen to bring such an action has been analyzed in an earlier case which held that our statutory scheme granted that right. Baxter v. State, 243 Ala. 120,9 So.2d 119 (1942); Title 7, §§ 1136, 1137 and 1142, Alabama Code.

Rule 13 of the Rules of Judicial Administration authorizes a presiding circuit judge to temporarily assign a circuit or district judge to serve in either a circuit or a district court within the circuit. The rule finds its sanction in the Constitution.

The Judicial Article, ratified December 27, 1973, Art. 6.11 (carried in Michie’s Code as Art. 6, § 150), mandated that this court “. . . make and promulgate rules governing the administration of all courts. . . . ” The only limitation upon those rules is that they “. . . shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts . . .” or venue, or jury trial. The assignment by the Presiding Judge of the Circuit Court of Mobile County of District Judge Sweeney to preside over a felony trial is not offensive to any of these limitations. The jurisdiction of neither the Circuit nor the District Court of Mobile County is affected by the temporary assignment of a judge from one to the other. The jurisdiction of both courts remains the same, as does the venue of causes in either. The substantive right of no party has been affected by the temporary assignments of Judge Sweeney.

Art. 6.11 of the Judicial Article, standing alone, permits this court to adopt a rule providing for the temporary assignment of judges by the presiding judges of the various circuits. One of the primary goals of the Unified Court System is the maximum utilization of judicial manpower to promote the expeditious dispensation of justice. The Judicial Article, Art. 6.10 (carried in Michie’s Code as Art. 6, § 149), expressly vesting the Chief Justice with authority to temporarily assign any judge to any court in any judicial circuit in the state in no way restricts the authority of this court to promulgate a rule authorizing the presiding circuit judges to temporarily assign judges within the individual circuits.

AFFIRMED.

BLOODWORTH, FAULKNER, JONES and EMBRY, JJ., concur.

MADDOX and BEATTY, JJ., dissent.

TORBERT, C. J., and ALMON, J., not sitting.

BEATTY, Justice

(dissenting).

I dissent because I believe the majority of this Court has substituted its philosophy of power for the clear language of the Alabama Constitution which, I believe, should remain the supreme law of our state.

A literal application of Rule 13 would authorize the action presently objected to:

Rule 13.
TEMPORARY ASSIGNMENT OF JUDGES
The presiding circuit judge may temporarily assign circuit or district court judges to serve either in the circuit or district courts within the circuit, (emphasis added).

That rule, however, must find its sanction in our Constitution and its implementing legislation.

The Constitution of 1901, § 150, as amended, and ratified on December 27, 1973, gave this Court the power to “make and promulgate rules governing the administration of all courts . . . .” The only limitation upon those rules is that they “shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts” or venue, or jury trial. The assignment of Judge Sweeney is not offensive to any of these limitations. While the relators argue that they have a substantive right to a “properly constituted officer” administering this part of the criminal justice system, the dimensions of that right are not defined for us. It can hardly be argued that the jurisdiction of either the circuit or district court of Mobile County is affected by the transfer of a judge from one to the other. The powers of both courts remain the same, as does the venue of causes in either. And it would appear that the answer to the question which deals with the nature of the relators’ substantive right depends upon what is meant by the constitutional grant of rule-making power governing “administration of all courts.”

When this Court adopts a rule governing “administration,” it does not purport to engage in any judicial determination of any cause, but only to deal with the practical management of those executive responsibilities and functions which are required in the oversight of the courts. See Greene v. Wheeler, 29 F.2d 468 (1928). Whether Section 150, standing alone, would permit the assignment of judges from one court to another as an “administrative function” vested in this Court is not the issue in this case, because Section 150 is preceded by Section 149 which specifically refers to assignments:

Sec. 149. Administration. The chief justice of the supreme court shall be the administrative head of the judicial system. He shall appoint an administrative director of courts and other needed personnel to assist him with his administrative tasks. The chief justice may assign appellate justices and judges to any appellate court for temporary service and trial judges, supernumerary justices and judges, and retired trial judges and retired appellate judges for temporary service in any court. Adequate and reasonable financing for the entire unified judicial system shall be provided. Adequate and reasonable appropriations shall be made by the legislature for the entire unified judicial system, exclusive of probate courts and municipal courts. The legislature shall receive recommendations for appropriations for the trial courts from the administrative director of courts and for the appellate courts from each such court.

It is worthy of particular note that the power to make rules of administration is given to the Supreme Court under Section 150, and this power may be reasonably interpreted to allow the Supreme Court to make rules for the assignment of judges. However, Section 149 explicitly places the power of assignment of “trial judges . for temporary service in any court” in the chief justice. If this power had been considered as a residual to the power to make rules of administration under Section 150, there would have been no need for our constitutional framers to have specified, as they did, that the chief justice have the power to make such appointments.

In construing the Constitution it is our duty to regard the whole instrument and to harmonize the various provisions, giving effect to them if possible. State Docks Commissioner v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345 (1933); and if there is any conflict, or apparent conflict, in its provisions, the more specific provisions prevail over more general provisions on the same subject. State ex rel. Fowler v. Stone, 237 Ala. 78, 185 So. 404 (1939). Consistent with this rule of interpretation, it follows that the Constitution, Section 149, places the matter of the temporary assignment of judges in the hands of the chief justice. That officer may be guided on the subject of assignments by a rule of administration adopted by the Supreme Court of which he is, of course, a member and in the promulgation of which he may participate. But the power of temporary assignments having been placed specifically in his hands by the Constitution, certainly the Supreme Court as a body cannot place it in the hands of another judicial officer, such as the presiding judge of a judicial circuit.

When the legislature implemented these constitutional provisions, among the statutes enacted were three sections dealing particularly with the duties of judges, viz.

Title 13A, § 6-115, Alabama Code (1975 Interim Supp.):

The supreme court may, by rules of court, establish additional duties for judges either within or without the geographical boundaries of the court of the judge, when such is, in the opinion of a majority of the court, necessary to properly serve the administration of justice.

and Title 13A, § 6-118, amended by Act No. 388, Reg.Sess. of 1976:

In those districts having more than one district court judge the presiding circuit court judge may designate from time to time a district court judge who shall have the same powers and authority as a circuit judge to handle all cases involving domestic relations, divorce, annulments of marriage, custody and support of children, granting and enforcement of alimony, proceedings under the Reciprocal Nonsupport Act and all other domestic and marital matters over which the circuit court has jurisdiction as well as all laws pertaining to juvenile and nonsupport cases arising in the county under Title 34 of the 1940 Code of Alabama and shall serve as an ex officio circuit judge when handling such cases, regardless of any provisions contained in this Act or any other laws to the contrary,

and Title 13, § 172:

The presiding circuit judge shall exercise a general supervision of the judges, clerks, registers, court reporters, bailiffs and sheriffs, and other court employees of the circuit and district courts within the circuit except employees of the clerk, and see that they attend strictly to the prompt, diligent, discharge of their duty.

Section 6-115 itself does not describe the “additional duties” which the Supreme Court may establish for judges. But since judges functionally perform duties involving the exercise of judicial authority, including the exercise of judgment or discretion in judicial proceedings, this statute falls clearly within the authority of the Supreme Court to make rules governing “the administration of all courts” under Section 150 of the Constitution. We are not persuaded that such rules are restricted to the “collection ... of information,” etc. as denoted in Tit. 13A, § 6-105. That statute considers such information as “within the scope” of the authority to make rules, but not to be the scope of our authority on that subject. This statute, however, refers only to an enlargement of duties, not to the assignment of judges to perform those duties.

Section 6-118 is more restrictive in its language. While it grants to the presiding circuit court judge the power to designate one district court judge from several in his district to “handle” specified types of cases, nowhere in that section is the power in question granted.

Under Section 172, the general superintendency over the judicial officers and employees of his circuit to see that they discharge their [normal] duties hardly comports with a power in the presiding circuit judge to reassign them.

Accordingly, any such appointive authority must come, not from that statute, but from the constitutional provisions of rule-making and assignment.

Section 149 of the Constitution obviously gives the chief justice, and no other, the power to make temporary appointments of judges as the administration of justice requires, and this includes the power to temporarily appoint a district court judge as an ex officio circuit court judge to preside over a criminal case. That power having been specifically vested in the chief justice, Rule 13, adopted by the Supreme Court as a whole, is constitutionally impermissible. Whether this aberrant provision would affect the power of this Court to provide by rule for a permanent enlargement of the duties of a district judge, such as those involved here, by his presiding circuit judge we do not decide. We point out, however, that a literal reading of Tit. 13A, § 6-118, indicates a legislative intent contrary to any such authority. Statutory enumeration of things upon which it is to operate excludes all things not expressly mentioned. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973).

Because the rule of this Court, upon which the appointment of Judge Sweeney is based, is not sanctioned by Section 150 of the Constitution in view of the express grant of authority on the subject contained in Section 149, this case should be reversed and judgment rendered for the relators. In short, the framers of this rule made a mistake, and when it adopted the rule, this Court made a mistake. The Court ought to admit its mistake and abide by the Constitution’s direction.

MADDOX, J., concurs.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Nicholas S. HARE v. Arthur C. HARTLEY et al.
    SC 2467.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Nicholas S. Hare, Jr., Monroeville, for appellant.
    R. L. Ingalls and Charles N. Parnell, III, Montgomery, for appellees.
   JONES, Justice.

This appeal from an adverse summary judgment presents two issues:

1. Is an assignment superior to a garnishment where the garnishment issues subsequent to the assignment?
2. Is the assignment and lien securing a debt merged into a judgment and thus extinguished and lost?

Although this case has followed a long and convoluted course, the basic facts essential to our consideration and decision may be abbreviated as follows:

In 1967, appellees obtained judgments against Arthur C. Hartley, Jr. In April, 1975, appellant Hare obtained an assignment from Hartley of his share of commissions that might result from a coal mine sales agency business to cover advances by Hare to Hartley. The sales agency business produced a commission of which the net share allocable to Hartley was $20,533.33. In October, 1975, appellees filed and served a garnishment on the party holding the fund, i. e., the share of commission earned by Hartley.

In December 1975, Hare obtained a $41,-600 consent judgment against Hartley based on advances covered by the assignment.' Hare then garnished the same fund. The trial Court, granting the appellees’ Motion for Summary Judgment, ruled that Hare’s assignment was merged into his judgment and thus extinguished and lost; and, because the garnishment of appellees was prior in time to Hare’s garnishment, the garnishment of appellees was superior. We reverse and remand.

The threshold question is one of priorities. Does a valid assignment of an interest (here, the sales commission) constitute a prior lien or security over a subsequently issued attachment (garnishment) of that same fund?

The general rule is that an assignment is superior to a garnishment where the garnishment issues after the assignment was made. 6 Am.Jur.2d, Attachment and Garnishment, § 482, citing, Canterbury & Gilder v. Marengo Abstract Co., 166 Ala. 231, 52 So. 388 (1910).

On the final dispositive point—merger— appellees’ reliance upon McGregor v. McGregor, 254 Ala. 378, 48 So.2d 312 (1950), is misplaced. The prior agreement between the parties, which the McGregor court held was merged into the final decree, did not constitute a security interest; and thus, in McGregor, the initial issue of priorities of claims was not involved.

An assignment or lien securing a debt which becomes merged in a judgment is not affected by such merger; the “merger” does not destroy the character of the debt. “[I]f a creditor has a lien upon property of the debtor and obtains a judgment against him, he does not thereby lose the benefit of the lien.” Restatement of the Law Of Judgments, § 47(d) (1942). See 46 Am.Jur.2d, Judgments, § 393, n. 6, 7; and 50 C.J.S. Judgments § 599 (both the doctrine of merger and its limitations).

The reason for the rule is to avoid the obvious injustice of forcing the assignment (or lien) holder to lose his security preference by pursuing his claim to judgment.

We reject the urging of appellant to instruct the trial Court upon remand to grant appellant’s Motion for Summary Judgment. While we have treated the assignment as legally valid (because this was the posture in which the trial Court granted appellees’ motion), we cannot be certain from the record before us that the ultimate disposition of this case is not dependent upon genuine issues of fact relating to the validity of the assignment. Because the trial Court is in the better position to so determine, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: EMBRY, Justice. JONES, Justice

text:
    Margaret Talley DOWNEY, etc. v. BITUMINOUS CASUALTY CORPORATION et al.
    SC 2530.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    R. Ben Hogan, III, Birmingham, Robert H. King, Gadsden, and Hogan, Smith & Alspaugh, Birmingham, for appellant.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   EMBRY, Justice.

Appellant, Margaret Talley Downey, brought this action in her own behalf as the dependent widow of Emmett Downey and for the benefit of his three dependent minor children. She sought recovery of benefits provided in lieu of workmen’s compensation benefits by the terms of an insurance policy issued by appellee Bituminous Casualty Corporation to State of Alabama — Highway Department. That department had leased Downey, a convict, from the Board of Corrections, State of Alabama. While working with a road crew of the Highway Department he met his death as the result of an accident. The Department was housing Downey and paying the Board for his use, at the time.

Appellants, the Downeys, make three statements of what they perceive to be the issues presented for review by this court. The third one is controlling.

“3. Did the Trial Court err in failing to find from the stipulated facts as a matter of law and policy that State prisoners working on road crews under the supervision of the Alabama Highway Department are employees of the Department within the meaning of the insurance coverage that provides benefits for the death or disability to the employees of the Alabama Highway Department?”

We hold that the trial court did not err and will affirm.

The Downeys contend that Mr. Downey was an employee of the Highway Department within the meaning of the Alabama workmen’s compensation laws and they are entitled to benefits on account of his death under the terms of the policy which required Bituminous:

“To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law.”

They say that, although there is no Alabama case interpreting our insurance law or comp act as it applies to leased convicts under the facts of this case, the better rule of law is that, where the convict is housed and supervised by the Highway Department, the widow and minor children should receive death benefits afforded beneficiaries of any other Highway Department employee killed in the course of his employment by accidental means.

Primarily, two cases are relied upon to support the Downeys’ contention; Johnson v. Industrial Commission, 88 Ariz. 354, 356 P.2d 1021; and Pruitt v. Workmen’s Compensation Appeals Board of the State of California, 261 Cal.App.2d 546, 68 Cal.Rptr. 12.

In Johnson, the Arizona court stated:

“This case presents the single question of whether a county prisoner, injured while on loan to a private corporation, is an employee within the meaning of the Workmen’s Compensation Act of Arizona, and therefore entitled to compensation for injuries sustained during the time he was so employed.”

In holding the corporation, Yuma County Fair, Inc., was the employer and Johnson the employee, it was stated:

“Although petitioner was under duress in that he was a prisoner of Yuma County, there is nothing in this record to indicate that the actual services of these eight prisoners for the Yuma County Fair, Inc. was compulsory. As an additional inducement they were each given three-days credit for each day’s work and seemingly were free to choose whether they worked or not. All the essentials of a contract for hire were present. Consideration flowed from the employer by way of different food and lodging, perhaps better, and sundries and cigarettes. Petitioner evidenced his agreement to the arrangement by performing the work tendered.”

Although there are other distinctions between this case and Johnson, the fact that Johnson’s services for Yuma County Fair was voluntary is a significant one. One of Bituminous’ principal arguments is that Downey was not an employee because his services to the Highway Department were not voluntary. Obviously, the other distinction between Johnson and this case is the fact that Yuma County Fair was a private corporation.

In Pruitt, a county inmate was farmed out to Nevada City to work on its sewer plant. He was held to be a city employee for workmen’s compensation purposes where he did such work voluntarily in return for credit on the sentence served, interlude release from jail confinement, and a carton of cigarettes per week. The distinction between Pruitt and this case may be found in that portion of the opinion of the California court where it states:

“We hold that when a county jail inmate is loaned out to a third party for work on a voluntary basis, whether that third party be a private corporation or a municipality, and when he is under the control of the latter with the right in said third party to direct the manner in which the service shall be performed, there is (1) a relationship of master and servant, (2) an implied contract of hire and therefore by statutory definition (in Lab. Code, § 3351) the inmate becomes an ‘employee’ and as such entitled to workmen’s compensation benefits when injured in the course and scope of his employment. That is true notwithstanding that monetary consideration passing to the prisoner be nil and the other consideration from the direct beneficiary of the services (here a carton of cigarettes) be of nominal value. This court has held that payment of monetary wages is not a sine qua non of employment under workmen’s compensation law. * * * Concededly, the principal consideration passing to petitioner was his credit on sentence time served plus an interlude release from jail confinement. That which the inmate-servant received may not have been great from the viewpoint of some, but that which he gave in return was considerable.

The section of the California Labor Code, defining an employee for workmen’s compensation purposes, mentioned in the quoted statement provides:

“ * * * [EJvery person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully employed * * *.”

In this case, as did the Arizona court in Johnson and the California court in Pruitt, we deal largely with the interpretation of statutes. We are bound, in comp cases, by statutory definitions of the words employer and employee. Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933). The words employer and employee are both defined in our Workmen’s Compensation Act. Title 26, § 262(d), Code, defines the term employer as:

“ * * * every person not excluded by section 263 of this title who employs another to perform a service for hire and to whom the ‘employer’ directly pays wages, and shall include any person or corporation, copartnership, or association, or group thereof, and shall, if the employer is insured, include his insurer, as far as applicable, and shall not include one who regularly employs a number less than four in any business * * * ”

Title 26, § 262(h) defines employee or workman as:

“ * * * Every person, not excluded by Section 263 of this title in the service of another under any contract of hire, express or implied, oral or written * * *

One of the essentials of the relation of employee and employer is the voluntary rendition of service by the employee. Reed v. Ridout’s Ambulance, Inc., 212 Ala. 428, 102 So. 906 (1925). Under our comp act there must be a contract of hire, express or implied, or written. Tit. 26, § 262(h). The person rendering the services must be paid wages directly by the employer. Tit. 26, § 262(d).

In this case, unlike in Johnson and Pruitt, Downey was not performing work voluntarily; rather he was working under sentence after conviction for a felony. He was performing forced labor while leased to the custody of the Highway Department of the State by the Board of Corrections of the State. And finally, but significantly, he was not one to whom the employer directly paid wages; a statutory requirement. For these reasons the judgment is due to be affirmed.

We would like to note the excellence of briefs of both counsel in this case as well as their reasoned and logical oral arguments. The issues were presented clearly and greatly facilitated our decision.

AFFIRMED.

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

MADDOX, J., concurs in result.

JONES and SHORES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. It seems to me that, under any reasonably conceivable test of the employer/employee relationship, Emmett Downey was an employee of the State Highway Department at the time of his death. The majority concludes from the record (stipulation of facts) that Downey’s employment was not voluntary. This is a totally unwarranted conclusion. To be sure, his confinement as a convict was involuntary, but not his employment. Once the lease arrangement was effected between the Board of Corrections and the Highway Department, and once Downey commenced his work activities under the direction of the Highway Department, he was an employee to the same extent and to the same degree as any private citizen hiring his services as a laborer with the department; and, upon meeting with the work-related accident, though just a convict, he is just as dead.

On a relative scale, the second rationale employed by the majority is even more unfortunate. The literal reading of the statutory language “to whom the ‘employer’ directly pays wages,” misses the obvious purpose and intent of this definition. Clearly, this was intended to distinguish between a personal contract of employment and the independent contractor arrangement. One example of this distinction is Manpower, Inc. This firm contracts to perform labor and services for others through its own employees — pays its own wages, and maintains its own workmen’s compensation coverage. Under this arrangement, the statutory definition exempts the “employer” from the operative effect of the Workmen’s Compensation Act. To use this definition to abort the employer/employee relationship between Downey and the Highway Department, in my opinion, is a distortion never contemplated nor intended by the drafters of the Act.

SHORES, J., concurs.


author: HOLMES, Judge.

text:
    STATE of Alabama v. CENTRAL COMPUTER SERVICES, INC.
    Civ. 962.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1977.
    Rehearing Denied March 2, 1977.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., Ron J. Bowden, and John James Breckenridge, Asst. Counsels, Dept, of Revenue, and Asst. Attys. Gen., Montgomery, for the State of Ala., appellant.

      Marshall Timberlake, James F. Hughey, Jr., of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appel-lee.
   HOLMES, Judge.

This is an appeal by the State of Alabama from the Circuit Court of Jefferson County’s action finding that the appellee taxpayer, Central Computer Services, Inc., is not subject to the Alabama use tax.

Title 51, § 788, Code of Alabama, (1973 Cum.Supp.), in pertinent part provides:

“An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property . purchased at retail . . . for storage, use or other consumption in this state . . . ”

Pursuant to this authority, the State of Alabama, through the Department of Revenue, imposed a final assessment of use taxes upon the taxpayer for its purchase of eight computer programs. The taxpayer appealed this assessment to the Circuit Court of Jefferson County. That court reversed the Revenue Department’s assessment, specifically finding, “. . . that the subject property is intangible and it is not related to any tangible item and its acquisition is not subject to the Alabama Use Tax.”

The determinative issue is whether, in this instance, computer “software” constitutes tangible personal property within the meaning of Tit. 51, § 788. We find that it does not and, accordingly, affirm.

The record reveals the following:

Taxpayer is a subsidiary of a bank holding company. Taxpayer’s function is to provide data processing service for banks which are affiliated with the holding company and also for some banks not so affiliated. It performs this function through utilization of computer “software” or programs, which consist of instructions recorded on punched cards, magnetic tapes, and magnetic discs. These devices instruct the computer as to what functions it will perform.

Taxpayer contracted to purchase the eight programs which are the subject of this appeal from University Computing Company (hereinafter University), a Texas corporation, which is in the business of developing and writing computer programs for the banking industry. These programs are “application” programs, as opposed to “operational” programs, which means they enable the computer to achieve specific objectives, e. g., demand deposit accounting, commercial loan accounting, installment loan accounting, etc. Operational programs control the basic internal operation of the computer.

In the instant case, the application programs were delivered to the taxpayer in the form of punched cards and magnetic tapes. Without the computer programs on them, the tapes sell for $12 to $15. Unpunched, the cards cost approximately $2 per 1,000. Taxpayer here paid $236,000 for the cards and tapes containing the software.

Upon receipt of the cards and tapes, taxpayer records the information contained therein onto a magnetic disc, converting the programs from ones of general applicability into programs expressly tailored for the taxpayer’s operations. That is, the programs as purchased are of general applicability to all banks. Hence, some modification is necessary in order for the taxpayer to incorporate specific information unique to its operation — interest rates, service charges, etc. — into the application program. The information on the magnetic disc is then used to program the computer. This having been accomplished, the disc is no longer necessary for the computer to execute the program. The disc may be physically removed from the proximity of the computer.

After the information contained on the original cards and tapes which the taxpayer procured from University has been transposed to the disc, the cards are destroyed and the tapes are returned to University.

Mr. Dewey Crim, taxpayer’s president, testified that the programs derived from the cards and tapes could be transmitted to taxpayer by means other than magnetic tapes or punched cards. He stated that the information contained on these items could be transmitted by telephone lines. Additionally, he noted that the program information could have been fed into the computer by a computer operator via the console typewriter, without utilizing either the punched cards or magnetic tapes obtained from University. Mr. Crim admitted that while theoretically the preceding was possible, as a practical matter, no individual could remember the amount of information required to program the computer. Mr. Crim testified that if the tapes or cards from University were lost en route to taxpayer or stolen, University provided taxpayer with duplicates free of charge.

Dr. John Parsa of Auburn University in Montgomery testified for the State. In addition to substantiating Mr. Crim’s testimony with respect to computer operations, he stated that the transfer of the cards was not merely incidental to the transfer of the programs. Dr. Parsa said cards and tapes were necessary to the transfer of software.

I

As previously stated, the issue before this court is whether the computer software constitutes tangible personal property within the meaning of Tit. 51, § 788, Code of Alabama 1940 (1973 Cum.Supp.).

The Department of Revenue, in an excellent brief, contends that Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892, is determinative of the issue herein.

In that case, a California taxpayer, Paramount, leased films or tapes to television stations in Alabama. The taxpayer argued that it was not subject to the Alabama taxes levied on leases of tangible personal property, because the films were not tangible personal property. Paramount further asserted that the essence of the transaction was an intangible right to publish and broadcast, to which the delivery of films, reels, and containers — tangible personal property — was merely incidental. The Supreme Court of Alabama rejected Paramount’s argument, stating:

“ ‘We agree with the state that the right to use property cannot be separated from the property itself and the “right” spoken of by appellant [Paramount] would have no value except for the use of the tape or film — the two cannot be separated. . . .’” (Boswell v. Paramount Television Sales, Inc., supra, 291 Ala. at 493, 282 So.2d at 894, quoting from American Television Co. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796, 799)

Thus, the court concluded that the films were tangible personal property.

Here, taxpayer’s response to the State is that the tapes and cards are not the dominant substance of the transaction. Rather, the taxpayer is merely purchasing information or knowledge, and the cards and magnetic tapes are but a means of transferring this information. Put another way, taxpayer contends that the tapes and cards are separate and distinct from the information contained therein, and the latter constitutes the substance of the transaction for which it paid $236,000.

While this is a case of first impression in Alabama, we are not without the benefit of other courts’ rationale in identical circumstances. In District of Columbia v. Universal Computer Associates, Inc., 151 U.S.App. D.C. 30, 465 F.2d 615 (1972), the taxpayer (Universal) had purchased from IBM, among other items, a set of punched cards containing a tax program. The value of the portion of the tax program developed by IBM was $106,000, and the issue before the court was whether the punched cards constituted tangible personal property and were, accordingly, subject to the District of Columbia personal property tax. In holding for the taxpayer, the court declared:

“It appears to us that the material of the punched cards themselves is of insignificant value. It was for the intangible value of the information stored on the cards that Universal paid IBM. How the information was created, . . . and how the information is put to the computer machine — . • . . support this appraisal.
“A. The work of IBM’s experts in developing the tax information to be put on the punched tax program cards was estimated to be worth $106,000. The punching of the cards themselves, like the cost of the pasteboard and the feeding of them into the machine, is insignificant compared to the time consumed, the skill used, and the inherent value attached to the process of creating the information. What Universal paid for, what IBM charged for, and the value which is or is not subject to tax, is the intangible value created by the intellectual effort in creating this special tax program to go on the cards.
“C. The punched cards themselves are placed in the machine and then taken out, and in fact could be returned to IBM. It is the information derived by the machine from the cards which stays in the computer, and which is employed repeatedly by the machine when it is used by Universal. What rests in the machine, then, is an intangible — ‘knowledge’—which can hardly be thought to be subject to a personal property tax. The only visible evidence of that knowledge, the punched pasteboard, could be stacked in a warehouse, returned to IBM, or destroyed, without interfering with the efficiency of the computer machine to perform its designed function.” (465 F.2d 615, 617-18)

The preceding logic is equally applicable to the circumstances of this case. Mr. Crim’s testimony plainly shows that what the taxpayer purchased from University was the knowledge which went into the development of the eight programs, not the tapes and cards themselves. Likewise, the physical destruction of the cards and the return of the tapes to University, after the information they contained had been transposed to the magnetic disc, indicates that the taxpayer was obtaining information, intangible as opposed to tangible property.

The Supreme Court of Tennessee, in a 1976 decision, has also addressed the question of whether computer software is tangible personal property subject to a state tax levied on such property. Commerce Union Bank v. Tidwell, Tenn., 538 S.W.2d 405. In that case, the Supreme Court of Tennessee was presented with the identical argument made herein by the State, i. e., that the purchase of consumer software is analogous to the purchase or lease of a motion picture film. The Supreme Court of Tennessee had previously held in Crescent Amusement Co. v. Carson, 187 Tenn. 112, 213 S.W.2d 27, as has the Supreme Court of Alabama in Paramount, supra, that a motion picture film was tangible personal property and subject to taxes on such property. (Crescent was quoted in the Paramount decision.) The Supreme Court of Tennessee held that computer software is not tangible personal property and, hence, the sales tax imposed on the sale of tangible personal property could not be applied to the sale of the computer software.

In Tidwell, supra, the court distinguished computer software and motion picture films. The latter constitutes an end product without which the labor, skills, and thought processes which went into its creation would prove meaningless. Absent the film, the taxpayer had nothing. On the other hand, the tapes and cards which contained the programs were in no sense of the word a finished product. It was the information they contained which constituted the valuable resource.

The court also stated:

“A magnetic tape is only one method whereby information may be transmitted from the originator to the computer of the user. That same information may be transmitted from the originator to the user by way of telephone lines, or it may be fed into the user’s computer directly by the originator of the program.
“When the information is transferred from the tape to the computer, the tape is no longer of any value to the user; and it is not retained in the possession of the user. The information on the tape . is not complete and ready to be used at the time of its purchase. It must be translated into a language understood by the computer. Once this information has been translated and introduced into the computer and the tapes returned or the punch cards destroyed, what actually remains in the computer is intangible knowledge; this is what was purchased, not the magnetic tapes or the punch cards. . . . ” (Tidwell, supra, 538 S.W.2d at 408)

We deem the above language to be completely fitting when applied to the facts of this case.

Here, Mr. Crim testified that the information on the cards and tapes which the taxpayer purchased could just as easily have been transmitted by telephone lines. He also pointed out that, although highly improbable because of human limitations, a University employee, if he was capable of remembering the 2,000 plus instructions necessary for any one of the eight programs, could insert the information into taxpayer’s computer via the console keyboard.

Moreover, the taxpayer was entitled to replacement tapes and cards from University at no additional cost if the originals were lost in the mail or stolen. Such an arrangement is consistent with taxpayer’s contention that the cards and tapes were merely incidental to the sale of intangible property. We are skeptical that any business entity would freely replace $286,000 in merchandise — tangible property — by reshipping identical replacements upon the mere basis of a buyer’s telephone call asserting the original items had been misplaced or stolen.

Other jurisdictions have distinguished between computer software and tangible personal property, Greyhound Computer Corp. v. State Dept. of Assess. & Tax., 271 Md. 674, 320 A.2d 52; County of Sacramento v. Assessment Appeals Board, 32 Cal.App.3d 654, 108 Cal.Rptr. 434, and we are convinced that that is the correct solution in this instance. See also Washington Times-Herald, Inc. v. District of Columbia, 94 U.S. App.D.C. 154, 213 F.2d 23 (1954); Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 11 N.E.2d 728.

We therefore hold that computer software does not constitute tangible personal property within the meaning of Tit. 51, § 788, Code of Alabama 1940.

AFFIRMED.

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


author: TORBERT, Chief Justice. MADDOX, Justice

text:
    In re STATE of Alabama v. CENTRAL COMPUTER SERVICES, INC. Ex parte State of Alabama.
    SC 2395.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel for Dept, of Revenue, and Asst. Atty. Gen., Ron J. Bowden, and John J. Breckenridge, Asst. Counsels, Dept, of Revenue, and Asst. Attys. Gen., for petitioner.
    Marshall Timberlake of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, opposed.
   TORBERT, Chief Justice.

This court granted the petition for writ of certiorari in this case because it involved a material question of first impression in this state, that question being whether computer “software” constitutes tangible personal property for purposes of the state use tax as set out in Title 51, section 788, Code of Alabama 1940 (Recomp.1958). The Court of Civil Appeals answered this question in the negative. We affirm.

Central Computer Services, Inc., a subsidiary of Central Bank of Alabama, paid $236,400.00 to University Computing Company of Texas for a ninety-nine year license for the use of eight computer programs. Each program consisted of a set of instructions recorded on magnetic tapes and punched cards. This computer “software” was used to program Central Computer Services’ computer which provides data processing services for banks affiliated with Central Bancshares of the South, Inc.

Upon receipt of the “software,” Central Computer Services extracted the information contained on the magnetic tapes and punched cards, and transferred the programs to magnetic discs owned by Central Computer Services. The tapes were then returned to University Computing Company and the cards were thrown away.

Pursuant to Title 51, section 788, Code of Alabama 1940 (Recomp.1958), the State Department of Revenue entered a use tax assessment against Central Computer Services in the amount of $13,519.91 for its purchase of the eight computer programs.

Central Computer Services appealed this assessment to the Circuit Court of Jefferson County. That court reversed the assessment, ruling that computer “software” was intangible and that the purchase of such “software” was not subject to the use tax on tangible personal property.

The Court of Civil Appeals, 349 So.2d 1156, sustained this ruling of the trial court, stating that, what was purchased by Central Computer Services was the information or knowledge which went into the development of the eight programs and not the magnetic tapes and punched cards themselves. Further, the appeals court noted that the magnetic tapes and punched cards were merely the means by which this information or knowledge was transferred.

The State contends that the Court of Civil Appeals erred when it concluded that the “software” was intangible and thus not subject to the tax. The State argues that the magnetic tapes and punched cards are a necessary, integral part of the computer program and that because these items are tangible, there was a purchase of taxable tangible personal property by Central Computer Services.

The only Alabama case relied upon by the State for its proposition of law that computer “software” is tangible and taxable is Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892 (1973). In that case, this court held that the leasing of movie films and tapes by Paramount, a California corporation, to television stations in Alabama involved the leasing of tangible personal property rather than an intangible right to publish as Paramount argued.

We believe that magnetic tapes and punched cards are distinguishable from movie films. In Boswell, the court noted that the right to publish or broadcast the motion picture was physically inseparable from the movie film itself. The physical presence of the movie film is essential to broadcasting the intangible artistic efforts of the actors. However, in the present case, the physical presence of magnetic tapes and punched cards is not essential to the transmittal of the desired information from its creator at University Computing Company to Central Computer Services. Testimony in the present case indicates that this information can also be telephoned to the computer or brought into Alabama in the mind of an employee of University Computing Company.

In summary, we find in the present case that there is an incidental physical commingling of the intangible information sought by Central Computer Services and the tangible magnetic tapes and punched cards themselves. We therefore hold that the essence of this transaction was the purchase of nontaxable intangible information.

As previously stated, this is a case of first impression in Alabama. However, we are not without case authority from other jurisdictions to support our holding that computer “software” is not taxable tangible personal property. Several courts have dealt with this issue in factual situations identical to the one presently before this court.

The Supreme Court of Tennessee recently held that specialized computer “software” purchased by a bank is not tangible personal property subject to that state’s use tax in Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn.1976). The underlying rationale for that decision was stated by the Tennessee court in the following manner:

“When the information is transferred from the tape to the computer, the tape is no longer of any value to the user; and it is not retained in the possession of the user. The information on the tape, unlike the phonograph record, is not complete and ready to be used at the time of its purchase. It must be translated into a language understood by the computer. Once this information has been translated and introduced into the computer and the tapes returned or the punch cards destroyed, what actually remains in the computer is intangible knowledge; this is what was purchased, not the magnetic tapes or the punch cards. District of Columbia v. Universal Computer Associates, Inc., 151 U.S.App.D.C. 30, 465 F.2d 615 (1972). Transfer of tangible personal property under these circumstances is merely incidental to the purchase of the intangible knowledge and information stored on the tapes.” (538 S.W.2d at 408.)

In District of Columbia v. Universal Computer Associates, Inc., 151 U.S.App.D.C. 30, 465 F.2d 615 (1972), the United States Court of Appeals for the District of Columbia held that computer “software” was not subject to the District of Columbia personal property tax on tangible property. Concerning the nature of the “software,” that court stated the following:

“. . . It is the information derived by the machine from the cards which stays in the computer, and which is employed repeatedly by the machine when it is used by Universal. What rests in the machine, then, is an intangible — “knowledge” — which can hardly be thought to be subject to a personal property tax. The only visible evidence of that knowledge, the punched pasteboard, could be stacked in a warehouse, returned to IBM, or destroyed, without interfering with the efficiency of the computer machine to perform its designed function.” (151 U.S. App.D.C. at 33, 465 F.2d at 618.)

We hold that computer “software” does not constitute tangible personal property for purposes of Title 51, section 788, Code of Alabama 1940 (Recomp.1958). The decree of the Court of Civil Appeals is hereby affirmed.

AFFIRMED.

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

MADDOX, FAULKNER and BEATTY, JJ., dissent.

BLOODWORTH, J., recuses himself.

MADDOX, Justice

(dissenting).

I cannot distinguish this case from Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892 (1973). Central Computer Services, a subsidiary of Central Bank of Alabama, paid $236,400 for a 99-year license for the use of eight computer programs from University Computing Company of Texas. This so-called “application software” is tangible personal property, in my opinion. Such programs can be the subject of theft. Hancock v. State, 402 S.W.2d 906 (Tex.Cr.App.1955).

The problem we face today of trying to decide whether applications software is “tangible” or “intangible” is admittedly a difficult one and the problem had its genesis with an “unbundling” announcement made by IBM in 1969, the effect of which is discussed in a Note in the Suffolk University Law Review, Vol. IX, pp. 119-144, entitled, The Revolt Against the Property Tax on Software: An Unnecessary Conflict Growing Out of Unbundling.

“Prior to 1969, when the industry was in its developmental stages, hardware occupied the center of attention, while software was relegated to an incidental service supplied by the computer manufacturer in support of the hardware. This was perhaps a natural tendency. Laymen could relate quite easily to the’ physical manifestations of the computer with its crisp modern styling much as they would to a new model automobile. The more sophisticated attempted to understand design features and performance characteristics from the descriptive literature and manuals. However, it was a relatively small group of cognoscenti who understood how to get the computer to do useful work and how to control and maximize its efficiency. Apparently relishing their Merlin-like role, this latter group made little effort to increase understanding, while the others were content to concentrate on other areas.

Two factors contributed to this shortsighted position. First, the emphasis of the industry was clearly on developing a smaller, more reliable computer that consumed less energy and which could be produced at less cost. Thus, in the span of approximately fifteen years, the industry put forth three ‘generations’ of hardware, each one based on improved technology — vacuum tubes, transistors and integrated circuits. The capacity of the hardware of each generation to digest ever increasing quantities of data resulted in less attention being paid to methods that would increase the efficiency of the successive models of hardware.

“The second factor was that in this early period, computer users, as a group apart, were noticeably ‘clubby’ in that they formed associations oriented towards a particular manufacturer’s equipment in order to share experiences and discuss problems. A natural offshoot of these associations was the free interchange of computer programs so that the other fellow would not have to ‘reinvent the wheel’ This milieu was in large part due to the fact that the earliest computer applications were in the educational and scientific sectors of the market, which are generally characterized by full and free disclosure and immediate publication.

“The start of the development of software as a distinct entity within the industry can be traced to 1969 when IBM announced a comprehensive plan for the separation of prices for its computers and related services including certain types of software. Prior to that time it was standard industry practice to price only the data processing equipment itself (the hardware) and to include, at no additional cost, ‘a variety of services.’ Such services, furnished free by the manufacturer, normally included customer engineering — the adaptation of the data processing system to the user’s environment both physically, in terms of computer room layout and requirements, and conceptually, in terms of meeting the user’s application needs. Maintenance of the equipment and training of the user’s personnel were also included in the equipment price. Most importantly, however, both systems and applications software were furnished at no cost. This packaged price policy became known within the industry as ‘bundled’ pricing. Hence, after the 1969 IBM announcement, the price separation of hardware from software and services became known as ‘unbun-dling.’

“The evolution of relative independence for software was hastened by the introduction of third generation hardware (built around integrated circuits) which had the capability of performing multiple tasks simultaneously. This dynamic development intensified the pressure on equipment manufacturers to offer systems software that could optimize the hardware capability. The most-important boost forward, however, came from the development of higher level programming languages which permitted ‘machine independence, or, at least, . ease of transferability from one computer to another.’ These languages expanded the effectivity of programming efforts in that programs, formerly written on an individual basis for a particular computer, could now be utilized on many computers — both those within the manufacturer’s ‘family’ and those made by competing manufacturers — with minimum modification. In concert, these two developments ushered in the beginning of a software industry. It was now possible for those systems and applications programmers with an entrepreneurial bent to establish themselves in business without being irrevocably tied to one manufacturer’s hardware.” (footnotes omitted.)

As software assumed an independent posture, a confrontation developed between computer manufacturers and purchasers and local taxing authorities. This case specifically points up the problem.

I candidly admit that some other courts, when presented with the problem we face here, have classified applications software as “intangibles.” The majority opinion naturally cites these cases, and I cannot fault them for this, because they do support the result they reach. But for Boswell v. Paramount Television Sales, Inc., supra, I would consider these other cases to be persuasive, too. Even so, I still think those cases from other jurisdictions follow a traditional approach to defining “tangibles” and “intangibles” when we are living in a “computer age.” In any event, I believe that Paramount Television Sales controls, and that the majority has not adequately distinguished it.

The majority says that in Paramount the film was actually brought into the state and that here the “knowledge” could have been (although it was not) transmitted by a telephone line or personnel could have come to Alabama and designed the program. The same could have been true in Paramount We all know that films can be transmitted by telephone lines or radio waves across state lines, also. Likewise, the actors in Paramount could come into Alabama and perform and produce the film. Does that make the product produced, the saleable item, an intangible? I think not. Here, the cards and tapes had value because of what was contained on them. In Paramount, the film had value because of what was contained on it. In Paramount, some type of “hardware” had to be used in order to get the “knowledge” off the film. I cannot distinguish Paramount, therefore, as easily as the majority does.

In short, the cards and tapes here, although they require a piece of hardware to use what is contained on them, have tremendous value over and above the cost of the physical tapes and cards. Central Computer Services thought so, too. It paid $236,400 for those cards and tapes.

I would reverse the judgment of the Court of Civil Appeals.

FAULKNER and BEATTY, JJ., concur.

      . In Hancock v. Decker, 379 F.2d 552 (5th Cir. 1967), the defendant, on appeal from a denial of a petition for habeas corpus, claimed he had not stolen property of a value in excess of $50. The Fifth Circuit affirmed the denial of the petition.


text:
    Fred O. HENDERSON and Mary Alice Henderson v. MOORE-HANDLEY, INC.
    Civ. 1077.
    Court of Civil Appeals of Alabama.
    July 6, 1977.
    Rehearing Denied Aug. 3, 1977.

      Donald R. Harrison, Montgomery, for appellants.
    Gregory A. Carr for Crenshaw & Minor, Harry Perdue, Montgomery, for appellee.
   HOLMES, Judge.

From a judgment of $4,924 entered against them in the Circuit Court of Montgomery County, Fred and Mary Henderson, defendants below, take this appeal.

The Hendersons have framed numerous issues for appeal, three of which warrant substantial discussion by this court. They contend the trial court erred to reversal by (1) not granting their motion for a continuance when they were served with appellee Moore-Handley’s amended complaint only on the day of trial (2) denying their motion for a continuance when interrogatories remained unanswered by the appellee, Moore-Handley, and (3) entering a personal judgment against them when both the original and amended complaint sought to enforce a materialman’s lien. The record sustains the trial court’s ruling with respect to each of these matters.

Viewed with the attendant presumption of correctness, the record reveals the following:

The Hendersons own two parcels of real property in Montgomery County, Alabama, approximately 22.1 acres on Old Pike Road and 25 acres in Rolling Acres. These parcels are at least 20 miles apart.

In October of 1975, the Hendersons, while residing in Plant City, Florida, contracted with Central Alabama Builders (CAB) for the latter to construct a house on the property on Old Pike Road. Billy McDowell, the owner of CAB, went to Moore-Handley, Inc., appellee herein and plaintiff below, to purchase items for the construction of the house.

Prior to furnishing any materials to CAB, Moore-Handley sent a letter to the Hendersons captioned “Notice to Owner.” This letter stated that Moore-Handley was furnishing building materials for the improvement of the real property located on Old Pike Road “Under Order Given By: Fred 0. Henderson Sr.” Also, on the letter was a notation that a copy was sent to CAB.

Thereafter, Moore-Handley supplied $7,424.79 worth of building materials for the Hendersons’ house. Some of these materials for the exterior of the house, e. g, doors, windows and roofing, were chosen by the Hendersons either on the Moore-Hand-ley premises or from a Moore-Handley cata-logue at the job site. Basic building materials such as studs, sheetrock, etc., were selected by McDowell. The Moore-Handley invoices for the materials purchased bore the following notations: “Sold to Central Ala. Builders”, . . . “Ship To Henderson Job.”

Moore-Handley filed a claim of lien in the Probate Court of Montgomery County on February 24, 1976, to secure the indebtedness of $7,424.79. The claim erroneously described the property in Rolling Acres, on which there was only a mobile home, as opposed to the property on Old Pike Road, where the house had been erected by CAB.

On March 11,1976, Moore-Handley filed a complaint in the Circuit Court of Montgomery against the Hendersons which alleged in pertinent part:

“The Plaintiff claims of the Defendants the sum of Seven Thousand Four Hundred Twenty-four and 79/100 ($7,424.79) Dollars, due on the account made on to-wit: February 23,1976, . which is past due and unpaid. Plaintiff avers that said account represents materials furnished by the Plaintiff at the request of Central Alabama Builders the agent and contractor for the Defendants, which was furnished by and was used in the construction of or improvement of . certain real estate [in Rolling Acres] . . .
“The Plaintiff claims a lien on said real estate as provided for mechanics and ma-terialmen by law . . .”

Thereafter, on November 8, the day before the trial, Moore-Handley amended its complaint to claim a materialman’s lien on the property on Old Pike Road. CAB completed proceedings in bankruptcy sometime pri- or to trial.

On the day of the trial, November 9, 1976, the Hendersons were served with the amended complaint. On that same day the trial court entered judgment for Moore-Pertinent portions of the judg-v: Handley, ment follow:

“[I]t is considered and ordered by the Court, and it is the judgment of the Court that judgment be and the same is hereby rendered in favor of the plaintiff and against the defendant for $4,924.79.
“It is therefore considered, ordered, and adjudged by the Court that the plaintiff have and recover of the defendant the said sum of $4,924.79 Dollars, . . ”

The trial court denied the Hendersons’ motion for a new trial and they subsequently filed this appeal. Other relevant facts will be set forth as they relate to the issues on appeal.

I

The Hendersons contend that the trial court’s denial of their motion for a continuance constitutes reversible error. They state that the amended complaint, by changing the description of the property, materially altered Moore-Handley’s claim and that they should have been given the opportunity to answer and prepare defenses for the amended complaint. We disagree. The trial court could reasonably have concluded that the Hendersons had notice of the claims against them and should have been prepared to defend at the time of trial.

First, as shown above, Moore-Handley’s original complaint claimed a materialman’s lien for an account due for materials furnished for the Hendersons’ house at the request of CAB. On June 30,1976, approximately one week after the four month time limit for filing a materialman’s lien had expired (see Tit. 33, § 42, Code of Alabama, recomp. 1958), the Hendersons had moved for summary judgment. The ground asserted therefor in affidavit was that they had no house on the real estate in Rolling Acres, which was the property on which Moore-Handley’s March 11 complaint sought to establish the lien. However, in the affidavits the Hendersons stated that they owned property on Old Pike Road where they had built a home. At this time, the Hendersons were represented by the same counsel who represented them at trial.

The Hendersons had had only one home constructed by CAB in Montgomery County. We think Moore-Handley’s original complaint which claimed $7,924.79 for materials furnished for the Hendersons’ house built in Montgomery County by CAB, despite the misdescription of property, was sufficient to place the Hendersons on notice as to the transaction upon which trial was to be had.

Additionally, on August 10, 1976, Mr. Henderson signed for a registered letter sent by Moore-Handley’s counsel which correctly described the property on Old Pike Road as that on which Moore-Handley claimed the lien. Also, prior to trial, the Hendersons had responded to Moore-Hand-ley interrogatories concerning transactions dealing with the house built by CAB on the property on Old Pike Road.

Neither interrogatories nor letters of counsel are appropriate substitutes for information which should properly be contained in the complaint. Nevertheless, when pretrial activities of the type detailed above, which revealed the information they did, had been carried on for at least four months prior to trial, claims of surprise and consequent unpreparedness lack credence.

“Continuances are not favored and discretion is vested in the trial court as to granting or denial. The reviewing court will not revise the exercise of such discretion except upon a showing of gross abuse. . . .” World Homes, Inc. v. Wilson, 54 Ala.App. 47, 49, 304 So.2d 603, 604 (1974).

Accord Sherk v. Sherk, 55 Ala.App. 345, 315 So.2d 437 (1975).

Under the facts of this case, the trial court’s denial of the motion for a continuance does not constitute the gross abuse of discretion compelling reversal. See Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960); Birmingham Electric Co. v. Glenn, 224 Ala. 620, 141 So. 537 (1932); National Security Fire & Casualty Company v. Hodgin, 55 Ala.App. 268, 314 So.2d 871 (1975).

II

The Hendersons also contend the trial court erred to reversal in not granting a continuance because Moore-Handley had failed to answer some interrogatories at the time of trial. The record reveals the following:

“MR. HARRISON [Counsel for the Hen-dersons]: Your Honor, at the point where he [counsel for Moore-Handley] introduces these [invoices showing materials delivered by Moore-Handley to the Henderson’s house], we would like to, at this point we would also like to interject an objection on the grounds that we filed — there’s still discovery left to be had in this. We filed a motion to discover these things, and the discovery hasn’t been completed.
“THE COURT: . . . When did you file your discovery?
“MR. HARRISON: About two weeks ago, Your Honor.
“THE COURT: Why did you wait so long to file it?
“MR. HARRISON: Well, I was not aware this case was set so soon, but that was my mistake. I was not aware and I thought it would be probably another month or so before the case would be set.
“THE COURT: It’s been on the books since March. . . .”

Thereafter, the invoices were received into evidence.

As can be seen, there was no motion by the Hendersons for a continuance on the grounds that the discovery was not complete. Rather, objection was made to the introduction of evidence on the grounds that the discovery was not complete. Issues not raised in the trial court may not be considered for the first time on appeal. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (1975). The Hendersons, not having sought a continuance based on the outstanding interrogatories, may not now complain of the trial court’s failure to grant a continuance for that reason.

Even had the Hendersons requested a continuance, we cannot state that the trial court would have abused its discretion in denying such request in this instance. Fairway Center Corp. v. U.I.P. Corp., 502 F.2d 1135 (8th Cir. 1974); Shadid v. Oklahoma City, 494 F.2d 1267 (10th Cir. 1974); Commercial Union Ins. Co. v. Gonzalez Rivera, 358 F.2d 480 (1st Cir. 1966).

Ill

The Hendersons state the trial court erred to reversal in granting a personal judgment when Moore-Handley’s original and amended complaints sought to enforce a materialman’s lien. This contention is devoid of merit.

Alabama law clearly permits entry of a personal judgment against the contracting owner even though the material-man cannot establish the lien. To warrant such a judgment, the materialman must show the contracting owner is indebted to him. Lily Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. 402, 232 So.2d 643 (1970); Crosby v. Hale, 277 Ala. 542, 173 So.2d 85 (1965); Lockhart v. O’Neal, 253 Ala. 254, 44 So.2d 17 (1950); Morris v. Bessemer Lumber Co., 217 Ala. 441, 116 So. 528 (1928). Here, a scintilla of evidence exists to sustain such a finding by the trial court.

The record reveals that Moore-Handley, prior to furnishing any materials to CAB, sent the Hendersons a notice which stated Moore-Handley regarded the Hendersons as the ordering party. The Hendersons never informed Moore-Handley that they would not pay for the building materials. In fact, the Hendersons issued a check, dated November 10, 1975, to Moore-Handley for $2,500.

Additionally, Paul Bouler, Moore-Hand-ley’s credit manager, testified that the Hen-dersons themselves directly ordered certain materials for the house from Moore-Hand-ley. He also stated that Mrs. Henderson had told him, when the house was approximately 90-95% complete, that Moore-Hand-ley would be paid at closing.

We deem the preceding facts sufficient for the trial court to have found the Hen-dersons indebted to Moore-Handley on account, either on the theory that Billy McDowell was the Hendersons’ agent and they, consequently, were originally liable, or on a theory of ratification. See Crosby and Morris, supra. Hence, entry of a personal judgment against the Hendersons was correct.

The Hendersons assert additional assignments of error, all of which relate in some manner to statutory directives governing the materialman’s lien. See Tit. 33, §§ 37, 42, 45, Code of Alabama. Irrespective of the remarks made during the course of the trial by the learned trial judge that he intended to grant a material lien in favor of appellee, no such judgment as prescribed by Rule 58(a), ARCP, was rendered. Put another way, the judgment, as set forth supra, does not establish a materialman’s lien. Rather, it is a personal judgment for Moore-Handley for the sum of $4,924.79. Thus, although more than one of the Hen-dersons’ assignments of error regarding the materialman’s lien might be meritorious, they have no effect upon the disposition of this appeal.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ex parte Fred O. HENDERSON et al.
    SC 2779.
    Supreme Court of Alabama.
    Sept. 30, 1977.
   FAULKNER, Justice.

'WRIT DENIED.

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


author: PER CURIAM.

text:
    In the Matter of Anthony Louis ROBERTS, III, a child under eighteen years of age. Ex parte the DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama.
    Civ. 1258.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1977.

      William J. Baxley, Atty. Gen., and Mary Lee Stapp and Clyde P. McLendon, Asst. Attys. Gen., Montgomery, and Robert E. Gibney of Kilborn & Gibney, Mobile, for petitioner.
    David S. Conrad and Ian F. Gaston, Mobile, for respondents.
   PER CURIAM.

This is an adoption case.

The Probate Court of Mobile County conditionally granted the Whitneys’ petition of adoption with the order to become final six months thereafter as provided by the statute. The Department of Pensions and Security [hereinafter D.P.S.] has sought relief from the order of the Probate Court of Mobile County by writ of mandamus. The relief sought by D.P.S. is the setting aside of the probate court’s order.

The pertinent facts, as revealed by the petitions and briefs filed with this court, show the following:

The Circuit Court of Mobile County, on June 11,1976, terminated all legal rights of the natural parents in Anthony Louis Roberts. The legal guardianship and permanent custody of the child was granted to D.P.S. The D.P.S. was granted full power to proceed with permanent plans for the child which included the right to place the child for adoption and to consent to such adoption.

In July of 1975, the child was placed in the Whitneys’ home as a foster child. On October 29, 1976, the Whitneys petitioned the probate court for adoption of the child. The D.P.S. then made a motion to dismiss the adoption petition. This motion was based on D.P.S. finding the adoption not to be in the best interest of the child and D.P.S. would thus not consent to the adoption petition. On July 26, 1977, the probate court issued the interlocutory order granting the Whitneys’ petition of adoption. It is from this order that the D.P.S. seeks relief.

The D.P.S. takes the position that their consent to an adoption is a jurisdictional requirement when a juvenile court, or court of like jurisdiction, has terminated parental rights in the natural parents and has granted guardianship and permanent custody of the child to D.P.S. The department further contends that a motion to dismiss an adoption petition should be granted when D.P.S. does not consent to an adoption.

The respondents, through able counsel, argue that an administrative agency (i. e., D.P.S.) cannot arbitrarily prevent an adoption by the simple withholding of its consent.

The initial question for answer by this court is whether the consent of D.P.S. is a necessary prerequisite to the adoption of a child committed to its care. Should that question be answered in the affirmative, the next question is whether D.P.S. can unreasonably or arbitrarily withhold its consent.

The law in Alabama concerning adoptions is settled in that consent of the parents or, in certain cases, the department of public welfare is required in order to proceed with the adoption petition. Tit. 27, § 3, Code of Alabama 1940, Recomp. 1958, provides, in pertinent part, that:

“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent . who has lost guardianship of the child . by order of a juvenile court or court of like jurisdiction, may be dispensed with, and consent may be given by the guardian if there be one, or if there be no guardian by the state department of public welfare.” [Emphasis supplied.]

This section is construed to mean that the consent of D.P.S. [formerly public welfare] is required only when the custody of the child has been awarded to that agency, or where there is no parent whose consent is required and the child has no guardian. See Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387 (1969); and Davis v. Turner, Ala.Civ.App., 337 So.2d 355, 361 (1976), wherein this court said:

“Where a required consent has never been given, the trial court never obtains jurisdiction to proceed to the paramount question of the child’s welfare. . . . ”

The facts, as set out above, show that D.P.S. is the proper party to consent since legal guardianship has been placed with them. The natural parents had their parental rights permanently terminated by an order of the Circuit Court of Mobile County and, therefore, they are powerless to consent.

Thus, it can be seen that the giving of consent by D.P.S. is a prerequisite to the probate court’s consideration of the subject matter.

The initial question having been answered in the affirmative, we now proceed to ascertain whether D.P.S. can arbitrarily withhold its consent to the adoption of a child that has been committed to its custody and care. We find that it cannot arbitrarily withhold its consent.

The Court of Appeals of Kentucky, when faced with a similar problem, stated that:

“[A] court may properly authorize an adoption without the consent of the Department where that consent is unreasonably or arbitrarily withheld.” Commonwealth, Dept, of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287, 291 (1971).

Any other interpretation of the adoption statute would make the probate court helpless and impotent in such a proceeding and would place the ultimate decision regarding adoptions such as this in the D.P.S. See McKinney v. Quertermous, 306 Ky. 169, 206 S.W.2d 473 (1974). Whether the consent of the D.P.S. is being withheld unreasonably or arbitrarily is a question of fact. The burden of proof is on the party asserting that the consent of D.P.S. is being withheld arbitrarily or unreasonably. And, the probate court must decide, after a hearing, whether D.P.S. is, in fact, arbitrarily withholding its consent to the adoption. See Straszewicz v. Gallman, Ala.Civ.App., 342 So.2d 1322 (1977).

Summarizing, the consent required of the D.P.S. is jurisdictional, so that on its refusal to grant such consent, the court is without power to issue an adoption order unless the agency’s action is found to be arbitrary and unreasonable. See 2 C.J.S. Adoption of Persons § 55 (1972); Commonwealth, Dept. of Child Welfare v. Jarboe, supra; Lewis v. Louisville and Jefferson County Children’s Home, 309 Ky. 655, 218 S.W.2d 683 (1949).

It appears to us that the probate court considered the natural parents’ consent, along with D.P.S.’s consent, to be essential to its jurisdiction to hear and decide the merits of the adoption petition. As previously noted, the mother and father had lost their parental rights and their consent therefore was meaningless. Consequently, the consent of D.P.S. was absolutely essential to the jurisdiction of the probate court.

The probate court indicated that D.P.S. was arbitrarily withholding its consent, but the decree does not indicate that the Whit-neys were required to allege and prove that D.P.S. was acting arbitrarily in withholding its consent nor that D.P.S. was given an opportunity to refute such allegations. Furthermore, a transcript of this proceeding is not before this court. For this reason, we deem it necessary to return this matter to the probate court so that the question of whether D.P.S. has arbitrarily withheld its consent to the adoption can be properly considered by that court at a hearing held for that purpose.

Therefore, the writ is provisionally granted subject to the matter at bar being disposed of as outlined above. Pending such proceedings in the probate court, the interlocutory adoption order is vacated.

WRIT PROVISIONALLY GRANTED.

All Judges concur.


text:
    STATE TENURE COMMISSION for the State of Alabama v. PIKE COUNTY BOARD OF EDUCATION.
    Civ. 1186.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1977.

      W. Troy Massey, Sp. Asst. Atty. Gen., Montgomery, for appellant.
    Oliver W. Brantley, Troy, for appellee.
   PER CURIAM.

This is an appeal by the State Tenure Commission. The Circuit Court of Pike County, by writ of mandamus, directed the State Tenure Commission to set aside its judgment setting aside the transfer of a teacher by the Board of Education of Pike County.

We affirm the action of the trial court.

The pertinent facts as revealed by the record disclose that Mrs. Ruth Crawford, the subject' of the instant transfer, was a teacher with continuing service status. In fact, Mrs. Crawford has been-a teacher in Pike County for over 25 years. For the past several years, Mrs. Crawford has held the position of Supervisor of Instruction. The Board of Education transferred Mrs. Crawford from the position of Supervisor of Instruction to that of classroom teacher. This transfer was without loss of status. The reason given by the Board of Education for the transfer was that economic reasons dictated that the position of Supervisor of Instruction be abolished and she be returned to the classroom. As indicated above, this transfer was without any reduction in pay.

A hearing was held by the Board and thereafter the transfer was ordered.

After the hearing before the Board, Mrs. Crawford appealed to the State Tenure Commission as provided for under Tit. 52, § 357, Code of Alabama. After consideration of the record of the hearing by the Board of Education, the Tenure Commission found as follows:

“. . . that the action of the Board was arbitrarily unjust and was not in compliance with the teachers’ tenure laws because the evidence fails to support the economic reasons cited by the Board for its action. The action of the Pike County Board of Education is, therefore, reversed.”

From the order of the Commission, the Board sought writ of mandamus from the circuit court to be directed to the Commission as permitted by Tit. 52, § 361, Code of Alabama. The circuit court found that the “reason” given by the Board of Education to Mrs. Crawford for her transfer was supported by the undisputed evidence presented by the Board. The circuit court directed the Commission to set aside its order of reinstatement and enter an order affirming the order of the Board of Education transferring Mrs. Crawford. It is from this order that the Tenure Commission has taken this appeal.

Through able counsel, the Tenure Commission’s main contention is that the transfer of Mrs. Crawford was arbitrary and unjust and, therefore, the order of the Tenure Commission should be upheld. We disagree.

At the outset, we deem it appropriate to quote what Presiding Judge Wright, speaking for this court, said in Tenure Commission v. Anniston City Board of Education, 57 Ala.App. 198, 201, 326 So.2d 760, 763 (1976):

“A superintendent does not recommend nor does a board of education approve a transfer without a reason. Such reason must be stated if the transfer is contested. The stated reason must be shown by the evidence to serve a reasonable administrative function, not be personal or political or arbitrarily unjust. If the evidence does not sustain the reason given, the transfer is not sustained.” [Emphasis supplied.]

It was not our intention to imply by our statement in Anniston City Board of Education, supra, that the teacher and, upon appeal, the Tenure Commission could challenge the wisdom or correctness of the administrative acts of the Board which may have precipitated the transfer. It is only the truth of the stated reason which may be attacked. If the transfer was not because of the “reason” but was in fact for political or personal reasons or was not reasonably supported by the “reason,” such transfer could be determined to be arbitrary, capricious and unjust upon appeal. Tit. 52, § 357, Code of Alabama; Mills v. Board of Education, 449 F.2d 902 (5th Cir. 1971). The statutory duty to administer and supervise the public schools in a county is charged to the county board of education. Tit. 52, § 62, Code of Alabama. The setting of educational policy and the conduct and management of the schools is the responsibility of the county board of education. Tit. 52, §§ 73, 74, Code of Alabama.

In this case, the decision to terminate the position of Mrs. Crawford and reassign her to a teaching position was not subject to review as to its wisdom or necessity, but only as to whether it was made for personal or political reasons, or whether it was so unsupported in fact or reason as to be arbitrary and capricious. Robinson v. Jefferson County Board of Education, 485 F.2d 1381 (5th Cir. 1973); Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So.2d 339 (1947).

As shown by the Tenure Commission’s order, the issue then becomes whether the reason given by the Board (i. e., economic) is shown by the evidence to serve a reasonable administrative function. From our careful review of the evidence, we find that it was.

The record reveals without controversy that the Board intended to abolish the position of Supervisor of Instruction. This would result in a saving of some $12,000. Additionally, by returning Mrs. Crawford to the classroom, certain split-grades would be eliminated. These facts alone fall within the definition of a reasonable administrative function as discussed in Anniston City Board of Education, supra. We find no evidence regarding the transfer being made for political or personal reasons. Nor did the Tenure Commission so find.

We are well aware of the Alabama Supreme Court’s decision in Alabama State Tenure Commission v. Mt. Brook Board of Education, Ala., 343 So.2d 522 (1977), regarding the standard of review to be exercised by the circuit court in cases of this nature. However, we would note that Mt. Brook was a “termination proceeding,” whereas, the instant appeal is a “transfer” case. In any event, our views regarding Mt. Brook can be found in Sumter County Board of Education v. Alabama State Tenure Commission, Civ. 1119, decided July 13, 1977.

It is clear that even in light of the supreme court’s decision in Mt. Brook, there must be sufficient evidence before the Tenure Commission to support its conclusion that the decision of the Board of Education should be reversed. Here, in the instant appeal, we find no such sufficient evidence, or any reasonable tendency of such evidence.

The Tenure Commission, through able counsel, further contends that this court should reverse this matter for failure by the school board to allow the deposition of a certain witness to be taken and for failure to grant a continuance. We find no merit in either of these contentions.

The record reveals that for purposes of the contentions raised on this appeal, the teacher was notified on October 15,1976, of the school board’s intention to transfer the teacher. She was further notified to select the school she preferred to be assigned to. The teacher’s reply to this notification was that she preferred to remain in her present position, i. e., Supervisor of Instruction. Thereafter, on October 29, 1976, the school board selected the school and notified the teacher of the Board’s intention to transfer and the school to which she was assigned. This notification occurred on November 2, 1976. The teacher immediately demanded a hearing and the same was set for November 17, 1976.

On November 15 or 16, a letter was received by the office of the Superintendent of Education. The letter stated that “notice is hereby furnished of Mrs. Crawford’s intention to take your deposition and deposition of the chairman of the Pike County Board of Education prior to the scheduled November 17, 1976 Board hearing.”

Additionally, the letter requested a subpoena for the budget of the school years 1970-71 through 1976-77. A subpoena was issued for these documents on November 16, 1976, and they were available at the hearing.

As early as July 15, 1976, Mrs. Crawford received a letter from the Pike County Board of Education informing her of the Board’s decision to reassign her due to economic reasons. This court held in Tenure Commission v. Anniston City Board of Education, supra :

“The object of stating the ‘reasons’ for transfer is obviously for the purpose of allowing the teacher to examine witnesses and offer testimony to the end of determining the truth and validity of the stated ‘reasons’ and if they serve legitimate or reasonable administrative purposes . . . ” (57 Ala.App. at 201, 326 So.2d at 762)

As can be seen from the facts set out above, the appellant had sufficient time (approximately four months from notification of reassignment) in which to examine witnesses and study documents to determine if a legitimate economic reason exists. Instead, the appellant waited until the week of the Board hearing before such right was asserted.

The appellant first contends in this regard that the failure to allow the deposition requires reversal. We find no merit in this contention.

Rule 30(b)(1), ARCP, in pertinent part, reads:

“(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing. . . .” [Emphasis supplied.]

As can be seen from the facts as set out above, it could well have been concluded that reasonable notice was not given.

The appellant further argues in brief that the school board’s failure to grant a continuance to allow counsel for the teacher to study the subpoenaed documents and to take the aforementioned deposition was a denial of due process of the law.

The Board of Education granted a 30 minute recess to allow counsel to study the requested documents. Quite frankly, we fail to fully comprehend appellant’s argument regarding this aspect. The documents were supplied; they were produced and counsel, while perhaps not allowed an abundance of time to study the documents, was allowed some time. In any event, in view of the facts as seen from the above, we perceive no reversible error in this regard.

As stated by the Supreme Court of Alabama in County Board of Education of Clarke County v. Oliver, 270 Ala. 107, 109, 116 So.2d 566, 567:

“The Teacher Tenure Law contemplates the rudimentary requirements of fair play with reasonable notice and opportunity to be present, information as to charges made, and opportunity to controvert such charges, the right to examine and cross-examine witnesses, and submit evidence and be heard in person or by counsel. . . . ”

This court, after careful study of the record, can perceive no deprival of due process of law since all of the above requirements have been met.

We would further note, regarding the contention relating to the deposition, subpoenaed documents, and continuance, that these matters were apparently not considered by the Tenure Commission or the trial court. When this fact (the nonconsid-eration by the Tenure Commission and the trial court) coupled with the fact that the teacher prevailed before the Tenure Commission, is considered, it appears that these contentions are, in effect, being raised for the first time on appeal. This the law does not permit. See 2 Ala.Dig. Appeal & Error &wkey;169.

An argument which was not asserted in the answer or developed or passed on at trial cannot be considered on appeal. The failure to adequately present and develop an issue precludes this court from considering it on appeal. See American Lease Plans, Inc. v. Houghton Const. Co., Inc., 492 F.2d 34 (5th Cir. 1974).

This case is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Henry Lee TARVER v. STATE.
    6 Div. 262.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Aug. 16, 1977.

      Larry Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Jefferson County charged the appellant, Henry Lee Tarver, with first degree murder of Ruby McGinnis Sherrod, by shooting her with a pistol. Appellant entered pleas of not guilty, and not guilty by reason of insanity. The jury found the appellant guilty of murder in the first degree and' fixed his punishment at life imprisonment. The trial court duly entered judgment in accordance with the verdict, and appellant appeals to this Court.

This appeal was submitted to this Court on briefs. The appellant was represented by counsel of his choice in all proceedings in the trial court, and is represented in this Court by different counsel under court appointment.

The evidence on behalf of the state consisted of testimony of nine witnesses, and tends to prove that the appellant and the deceased were both married; that for about two years before January 31, 1975 they had been having illicit intercourse; that the deceased had lost her interest in appellant; that on January 31,1975 at about 9:00 A.M. appellant entered a restaurant located in Birmingham, Jefferson County, Alabama where he found the deceased; that after sitting in a booth and talking with the deceased for a few minutes appellant stood up in the aisle, and while deceased was seated in the booth, appellant pulled a pistol from his belt and shot the deceased five times inflicting twenty-eight wounds on her body from which she immediately died: that appellant walked out of the restaurant, got in his car and drove away.

Appellant’s defenses were not guilty, self-defense, and insanity at the time of the crime.

Appellant was a witness in his behalf and with fifteen other witnesses offered evidence in support of his plea of insanity, and in support of self-defense. Appellant offered evidence of his reputation for truthfulness, and his reputation for peace and quietude, and also evidence of the reputation of the deceased for violence and viciousness.

In rebuttal to appellant’s evidence on his plea of insanity the state offered evidence that appellant was sane at the time of the crime. The trial court fully instructed the jury as to the law covered by the issues raised at the trial.

Appellant contends that this cause should be reversed because the record does not show he entered a plea, or that one was entered for him by the court. Appellant also contends that this cause should be reversed for the reason that the indictment against appellant was not read to the jury. Appellant further contends that this case should be reversed because appellant was not allowed to introduce certain evidence of the reputation of the deceased. Appellant also contends that this cause should be reversed because of certain remarks made to the jury by counsel for the state in his closing argument to the jury.

First, with reference to appellant’s pleas, in the record proper, certified to this Court by the clerk of the trial court, on page 429 we find the following:

This the 25th day of April, 1975, came Earl C. Morgan, District Attorney, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by his attorney, Robert Bryan, and the defendant being duly arraigned upon the indictment in this cause, for his plea thereto says that he is not guilty and not guilty by reason of insanity, and leave of the Court is hereby granted to defendant, hereafter but before the trial day, to interpose any special pleas which defendant had the right as a matter of Law to interpose prior to his plea of not guilty and case is set May 5,1975, and passed from time to time to May 3,1976, for trial.

It appears from the foregoing that the appellant entered a plea of not guilty, and of not guilty by reason of insanity, on the 25th day of April, 1975. Trial date was May 4-6, 1976. We hold that once a defendant has been duly arraigned, and has entered his pleas to an indictment, and the indictment and the pleas have in no way been changed, it is not necessary for him to again plea on trial date. In fact to require one charged with an offense to await trial date to plea is not in harmony with the operation of our trial courts. Howard v. State, 165 Ala. 18, 50 So. 954; Gandy v. State, 42 Ala.App. 215,159 So.2d 71, certiorari denied, 276 Ala. 704, 159 So.2d 73; Turner v. State, 266 Ala. 250, 96 So.2d 303.

The appellant insists in his brief that his conviction should be set aside because the indictment against him was not read to the jury at the beginning of his trial. In the absence of an objection in the record to the failure to read the indictment to the jury at the beginning of the trial the matter is not before this Court for a decision. The question was not presented to the trial judge for his ruling. Williams v. State, 44 Ala.App. 599, 217 So.2d 551; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505; Wade v. State, 49 Ala.App. 601, 274 So.2d 626; Turner v. State, 54 Ala.App. 467, 309 So.2d 503.

Appellant further contends that his conviction should be reversed because of the adverse ruling of the trial court shown by the following excerpt from the transcript of the testimony during the examination by appellant’s counsel of a witness offered by the appellant:

“Q Mrs. Wilson, I’ll ask you whether or not you knew of a Mrs. Ruby Sher-rod in her lifetime? Now just right now just answer yes or no.
A I did know her.
Q Know of her?
A Yeah, I knew of her.
Q Did you come to know her general reputation for peace and quiet, for being peaceful before her death on January thirty-first, 1975?
THE COURT: Yes or no?
A Before her death?
THE COURT: Yes, ma’am.
A No, I didn’t know anything of her before her death.
Q All right. Did you come to — don’t tell us what you’re thinking, just yes or no, did you come to know her reputation sometime after?
A Yes.
THE COURT: It’s not admissible. Prior to January thirty-first, 1975.
Q So you had not heard anything about her before she died?
A No.
MR. BRYAN: Okay. I’m sorry, Your Honor.”

January 31, 1975 is the date of the alleged crime, and the day that deceased died. We hold that the trial court was correct in refusing to allow the witness to testify as to the reputation of the deceased because the testimony of the witness was based on what she heard about the deceased after the death of the deceased. Griffith v. State, 90 Ala. 583, 8 So. 812; Buchanan v. State, 120 Ala. 670, 25 So. 1024; Gordon v. State, 140 Ala. 29, 36 So. 1009; Standard v. State, 51 Ala.App. 176, 283 So.2d 627.

Appellant contends that his right to a fair trial was prejudiced by remarks of the district attorney in his closing argument to the jury wherein he stated: “I could have put her husband on the stand. I could have put her mother and father on the stand and they could have said, Ruby was a nice person.”

During the trial the jury was specifically instructed by the trial court that statements made by the lawyers to the jury are not evidence for them to consider, that the jury decides the facts and considers only evidence that they hear from the witnesses who take the witness stand.

The statements made by state’s counsel in his argument to the jury, to which appellant objected, were not so inflammatory as to be ineradicable by proper instructions of the court when taken into consideration with the entire record in this case. We therefore hold that prejudice to the appellant, if any, was eradicated by the trial court’s instructions to the jury to consider only the evidence from the witnesses who took the witness stand, and not statements of counsel in their oral argument to the jury. Childress v. State, 86 Ala. 77, 5 So. 775; Cross v. State, 68 Ala. 476; Finley v. State, 28 Ala.App. 151,181 So. 123, certiorari denied, 236 Ala. 161, 181 So. 125; Payne v. State, 261 Ala. 397, 74 So.2d 630; Ellington v. State, 51 Ala.App. 12, 282 So.2d 360, certiorari denied, 291 Ala. 778, 282 So.2d 366.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Henry Lee TARVER.
    SC 2802.
    Supreme Court of Alabama.
    Sept. 30, 1977.
   SHORES, Justice.

WRIT DENIED.

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