author: BOWLING, Justice,

text:
    Orville M. LISTER v. BANK OF LUCEDALE.
    No. 49685.
    Supreme Court of Mississippi.
    Sept. 21, 1977.

      A. M. Murphy, Lucedale, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court.

This appeal challenges two judgments of the Circuit Court of Greene County. Ap-pellee, Bank of Lucedale, was plaintiff below. Appellant was defendant and had filed a counterclaim against appellee. The lower court dismissed appellant’s counterclaim and directed a verdict for appellee on its original suit. Appellant contends that these judgments were erroneous. We agree and reverse and remand the cause.

Appellee Bank filed its suit alleging that appellant owed it the balance of a promissory note in the original sum of $750 executed on June 16, 1973. The declaration alleged that appellee had paid a total of $200 on the note, leaving a balance of $550, together with interest and attorney’s fees.

Appellant filed an answer and counterclaim. He admitted the execution of the promissory note but denied that he was indebted for the balance as alleged in the declaration. In his counterclaim appellant alleged that he had an agreement with one of the Bank’s officers regarding payment of the note. Subsequent to that agreement the counterclaim alleged that appellant was engaged in conducting a business transaction which would have led to a profitable venture when one of the Bank’s officials approached appellant in the presence of his business associate and “did rudely interrupt said discussion and did intentionally, willfully, deliberately, unreasonably, cruelly, arbitrarily, discriminatory oppressive and abusively discussed counter claimant’s financial stability in the presence of his business associates.” The counterclaim further alleged that this action was in violation of the Bank’s duty to appellant; that the statements of the officer at the time constituted privileged information between the Bank and appellant. The counterclaim alleged that because of this action on the part of the Bank he failed in the business venture being discussed and that he was therefore entitled to actual and punitive damages.

The case was tried on September 19, 1975, with the trial resulting in a verdict for both parties; the sum of $850 in favor of the Bank on the promissory note, and the sum of $2,000 on the counterclaim. Both parties filed a motion for a new trial and both motions were granted.

The cause came on again for trial on November 17, 1975. On that date appellee filed a motion to dismiss the counterclaim of appellant, primarily on the ground that it “sounds in tort and should be the subject of an independent suit.” On the same day the court sustained appellee’s motion to dismiss. Also on the same date, appellant filed an amended counterclaim further alleging that the Bank was guilty of wilful and malicious fraud in instigating proceedings on the note subsequent to the alleged agreement of the Bank to renew it. This amended counterclaim was dismissed and the case proceeded to trial on the original suit by the Bank. In dismissing the amended counterclaim, the lower court gave as the reason therefor that it “dealt with tort” and “your tort can be filed in a separate suit.” At the conclusion of the evidence the court directed a verdict for the Bank which resulted in a judgment against appellant in the sum of $886.98.

In his motion for a new trial appellant contended that the lower court erroneously directed a verdict for appellee and erroneously sustained appellee’s motion to dismiss the counterclaim. It is only necessary that we consider the counterclaim statute to conclude that the lower court clearly was in error.

Mississippi Code Annotated section 11 — 7— 69 (1972) provides as follows:

(1) In all suits at law where the defendant has a claim or demand against the plaintiff arising out of or connected with the situation, occasion, transaction or contract or subject matter upon which the plaintiff’s action is based, whether the claim or demand of the defendant is liquidated or unliquidated, the defendant in his answer may plead his claim or demand against the plaintiff by way of counterclaim, in recoupment, stating the facts upon which such counterclaim is based.

As hereinbefore set out, the original suit filed by appellee was based on a promissory note and the collection thereof. The original counterclaim and the amended counterclaim clearly set out allegations that were “connected with the situation, occasion, transaction or contract or subject matter upon which the plaintiff’s action was based.” The counterclaim alleged that the Bank official committed the wrong in the presence of appellant’s business associate while discussing the collection and payment of the note and appellant’s credit relationship with the Bank. It cannot be said that these allegations were not “connected with the situation” giving rise to the original suit.

Appellant filed a statutory supersedeas bond after setting out in his motion for a new trial that the court erroneously directed a verdict for appellee. The court, after the first trial, concluded that appellant was entitled to a new trial on the original suit for collection of the note, obviously so that the entire matter would again be brought before the court. We are of the opinion that the same situation prevails here. The entire case, including the judgment on the original suit and the dismissal of appellant’s counterclaim, should be reversed and remanded to the lower court for a new trial on all issues in the cause.

It should be noted here that on this appeal the Court is not concerned with the merits of the counterclaim. Its dismissal is being reversed as the allegations of the instrument clearly bring it within the purview of the counterclaim statute, supra, and it should not have been dismissed as a “claim sounding in tort.” Therefore, we reverse and remand the entire cause, including the judgment for appellee and the order dismissing appellant’s counterclaim.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Virginia CRUM v. STATE of Mississippi.
    No. 49893.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court.

This appeal is by appellant from a conviction in the Circuit Court of Alcorn County of manslaughter and a sentence of fifteen years with six years suspended. Appellant assigns only one ground of error, as follows:

Appellant respectfully submits that the lower court erred in admitting into evidence a towel and an officer’s testimony as to what he saw at appellant’s home as this was the result of an illegal search and seizure made without a warrant, not as an incident to arrest and without consent of appellant.

This assignment of error necessitates a discussion of the pertinent parts of the evidence. The evidence is practically undisputed. About eight o’clock P.M., on April 19, 1974, Sheriff Ralph Lambert of Alcorn County received a telephone call from a woman who asked to speak to the sheriff. Upon ascertaining that the sheriff was on the telephone, the woman transferred the telephone to another woman who identified herself as the defendant, Virginia Crum. She told Sheriff Lambert that she had shot her husband and wanted him to come to her brother’s house where she had gone to make the telephone call. She did not have a telephone at her home. Her brother and sister-in-law lived about one hundred yards from the Crum residence.

Sheriff Lambert and a deputy, Harold Mullins, went to the home of Mrs. Crum’s brother. Upon arrival, Mrs. Crum handed the sheriff a pistol from her purse and told him that she had shot her husband with the gun. She further stated that her husband was still in the house. The sheriff and deputy went immediately to the Crum home, entered and found Mr. Crum lying on the living room floor near the couch. They found him to be dead. An examination was then made of the premises. The house consisted of four main rooms — a living room, kitchen and two bedrooms. On looking into one bedroom, the officers found what obviously was the result of a struggle, such as an overturned lamp and other items in disarray. In the other bedroom they found a dresser with a broken mirror and a bullet laying on top of the dresser. In the bedroom where there appeared to have been a struggle, they found a bullet embedded in the wall over the bed. They found drops of blood leading from this bedroom to the living room and to the point where Crum’s body was found. These drops of blood were small at the beginning but increased in size near the body.

By the time this initial and hurried examination of the premises was made, an ambulance arrived to take charge of Crum’s body.

Due to the examination of the premises and finding the two bullets, Sheriff Lambert then determined that it was necessary for him to go to the hospital where the body had been taken and examine the body. The hospital was an eight to ten minute drive from the Crum residence. Upon arriving there, it was ascertained that Mrs. Crum had been brought to the hospital, evidently by some member of her family.

The sheriff and his deputy viewed the body and found that it had received five shots — two in the chest area, two in the groin area, and one in the leg. After considering this investigative evidence along with what he had already seen in a hurried examination of the premises, Sheriff Lambert instructed Deputy Mullins to return to the Crum home and continue the investigation there. Deputy Mullins later testified that from the time they first left the Crum home until he returned was approximately twenty-five minutes.

About the same time Deputy Mullins left the hospital, Sheriff Lambert determined that he needed to secure a statement from Mrs. Crum as to what occurred surrounding the entire incident. He asked her to go to the jail with him for the purpose of securing this statement. She agreed to do so and accompanied him, without being arrested, although Sheriff Lambert stated on cross-examination that if she had refused he would have had to arrest her and take her over her objections. Upon reaching the jail, Mrs. Crum signed a “waiver of rights” form and freely gave the sheriff a written statement. After this statement was secured and signed, the sheriff confronted Mrs. Crum with the facts that were found in the bedroom and the trail of blood. She had not related to him anything that happened in the bedrooms in her written statement. According to Sheriff Lambert, she then made oral changes, and according to the evidence this was partially brought about by a towel that Deputy Mullins brought to the jail after he had gone back and completed an examination of the Crum home.

Deputy Mullins testified that upon returning to the Crum home and looking around the premises he saw a towel underneath a chair in the living room. He examined the towel and found on it what appeared to be powder burns. While there, he drew a rough sketch of the premises, showing the location of the rooms, the body, and the articles found. He returned to the jail with the towel and the sketch while Sheriff Lambert was still questioning Mrs. Crum. Later, she was arrested and charged with the murder of her husband.

The usual hearing was had out of the presence of the jury, with the attorney for appellant contending that the second trip and examination of the Crum home when the towel was found constituted an unreasonable and illegal search, and, therefore, this article of evidence was inadmissible. In overruling this contention, the lower court said: “The search, even though interrupted by some several minutes by going to the hospital to view the body, was still in the process of being made when Officer Mullins went back to complete it at a later time.”

The primary question on this appeal is whether or not the second trip to the Crum home by Deputy Mullins some twenty-five or thirty minutes after leaving to view Crum’s body at the hospital was a continuation of the initial permitted search and investigation, or whether or not it was an unreasonable and thereby illegal search and seizure under the provisions of the Fourth Amendment to the United States Constitution and Article 3, section 32 of the Mississippi Constitution.

Appellant relies primarily on the case of May v. State, 199 So.2d 635 (Miss.1967), and two prior cases cited in the May opinion: Page v. State, 208 Miss. 347, 44 So.2d 459 (1950), and Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940).

The May case is not applicable. There the defendant had already been taken to jail; later the officers went to defendant’s home after getting the defendant’s fifteen-year-old son to accompany them to the premises. The son let the officers into the house and permitted them to make a search. The Court merely held that defendant’s rights against an unconstitutional search could not be waived by his son.

In Lancaster v. State, supra, defendant was convicted of killing his wife. She was found lying by the steps leading into the house, after which the sheriff came to the house and the accused made no objection to his going about the premises. Later, the accused was arrested and lodged in jail. After securing information from the physician who examined the deceased, the officer, on the next day after the homicide, made an affidavit for a search warrant, obtained it, and made a search of the premises, resulting in the finding of damaging evidence against the accused. It developed that the affidavit and the search warrant were defective. The Court then held that the search on the next day clearly was unreasonable and illegal.

In Page, supra, the search also was made the day after the homicide and the day after the sheriff examined the home of the accused without a search warrant but with permission. As in Lancaster, the Court held that this search the next day without a valid warrant clearly was illegal.

In a number of cases this Court has discussed evidence in regard to whether or not a warrantless search is unreasonable and therefore illegal. In Norman v. State, 302 So.2d 254 (1974), the Court, through Justice Broom, made several observations in this regard, although admittedly the facts in Norman were somewhat different from the facts now before the Court. In Norman, the Court said:

Several of the items in controversy here were not seized by the officers when they initially entered the house, but were seized sometime later that day after the subjects had been arrested. Ordinarily, a subsequent reentry and seizure of items after the lapse of unreasonable time renders such items inadmissible in evidence. However, in this case, the delay was occasioned by discovery of bomb devices, at which time the search was not completed until the bomb squad came and removed the bombs. While waiting for the bomb squad, officers maintained a status quo by keeping the house under constant guard and surveillance. Then the search incident to the arrest was completed and other evidentiary items taken. There was not shown any unreasonable lapse of time between the arrest of the appellant (and the immediate search incidental to the arrest), and completion of the search after removal of the bombs. The final portion of the search after reentry was merely a continuation of the original search, and cannot be considered unreasonable in any legal sense.

The Court further said:

The question of whether a search is reasonable cannot be determined by any fixed formula and the Constitution does not define what are “unreasonable” searches. Reasonableness of searches must be resolved upon the facts and circumstances of each case.'

A case in point that was approved by the United States Supreme Court is Voss v. State, 198 Tenn. 135, 278 S.W.2d 667 (1955), cert. denied, 348 U.S. 965, 75 S.Ct. 526, 99 L.Ed. 752 (1955). In that case the officers admittedly had a legal right to enter the room occupied by Voss, Alice Jones and Snell without a search or arrest warrant. All three were taken into custody and carried to police headquarters and placed in jail. At the time of this arrest, various incriminating articles of evidence were found on the premises. After all officers left the premises and carried the three accused persons to jail, the officers returned to the premises and without a search warrant again made a search. At this time they found a dismantled shotgun and a money bag which clearly implicated the accused with robbery and murder. As here, Voss contended that the second entry was unreasonable and in violation of the constitutional inhibitions “against unreasonable searches and seizures.” The opinion of the Supreme Court of Tennessee quoted from United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 434, 94 L.Ed. 653 (1950), where it was said:

“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. . . . Reasonableness is in the first instance for the District Court to determine.”

The Tennessee Court then said:

We cannot say that the second search of Voss’ room was unauthorized and that the evidence tendered and admitted was the result of an unlawful search. It conclusively appears from the record before us that the arresting officers, having lodged their prisoners in jail, returned at once to make a further and more thorough search of the premises for evidence connecting them with the murder of Mr. Hutchinson. The time which elapsed between the arrest, the immediate search and this second search was of such short duration that we are justified in holding that the second search was merely a continuation of the first. It cannot be considered as unreasonable in any legal sense.

In State v. Downey, 104 Ariz. 375, 453 P.2d 521 (1969), the Supreme Court of Arizona had a similar set of facts before it in regard to an alleged second search and seizure. In discussing the applicable law, the Court said:

Whether Rimer’s search was a new, second search, or a continuation of the search initiated by the other officers is an argument of semantics. This Court’s opinion is that Rimer’s search is so close in time as to be a continuation of the initial search supported by the arrest of Ross. To accept defendant’s argument would be tantamount to holding that a search, once validly commenced, must continue without interruption by the same police officers who initiated it. Such a rule would itself be unreasonable. . “It must be remembered that not all searches and seizures are prohibited by the Constitution, only those which are unreasonable. At the core of the Constitutional Standard in the law of search and seizure is ‘reasonableness.’ ”

In Arwine v. Bannan, 346 F.2d 458 (6th Cir. 1965), it was stated:

The Supreme Court has pointed out that it is only unreasonable searches and seizures which come within the constitutional interdict and that the test of reasonableness cannot be stated in rigid and absolute terms. Each case is to be decided on its own facts and circumstances. . What is a reasonable search is not to be determined by any fixed formula, but is to be resolved according to the facts of each case.
The hiatus of twenty minutes in the search here is hardly unreasonable, and the mere lapse of time, in and of itself, is not persuasive in determining the reasonableness of a search.

Admittedly the “fruit of the search,” that is, the towel with the hole and powder burns, was damaging to appellant. Witness John Dial of the Mississippi Crime Laboratory made a detailed explanation as to how the towel had to be held over the gun for the hole in the towel and the powder marks to have been left thereon by various parts of the gun. In applying the law to the evidence, however, we cannot consider the extent of the damage done by the towel. The authorities are clear that the lower court was correct in holding that the return of Deputy Mullins to the Crum home was merely a continuation of the initial investigation permitted by the defendant. We cannot disagree with the lower court and hold that this was an “unreasonable” search and seizure. It follows that the cause must be and it is affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    Leroy PRYOR v. STATE of Mississippi.
    No. 50221.
    Supreme Court of Mississippi.
    Sept. 21, 1977.

      Liston, Crull & Gibson, Winona, Franklin J. George, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Appellant, Leroy Pryor, was convicted in the Circuit Court of Grenada County, Mississippi, on charges of aiding the attempted escape of a person confined for a felony offense in violation of Mississippi Code Annotated section 97-9-29 (1972). On appeal, Pryor contends the state failed to establish all the elements of the crime charged and that the verdict was against the overwhelming weight of the evidence.

In Vickers v. State, 215 So.2d 432 (Miss. 1958), this Court held that an element of the offense which must be proven is that the prisoner alleged to have been aided was, in fact, confined due to a felony charge. It is proof of this element of the crime which Pryor challenges.

Specifically, it is alleged that the evidence was insufficient to show that the prisoner, Willie White, Jr., was confined on a felony charge, and in the alternative, if the evidence was legally sufficient, it was erroneously admitted.

The issues presented on appeal are:

(1) Is oral testimony that an affidavit was sworn out charging a person (Willie White, Jr.) with burglary of a dwelling, that White was bound over to await grand jury action on that charge, and that White was present in jail at the time of the attempted escape, sufficient evidence from which a jury could reasonably conclude that Willie White, Jr. was confined for a felony within the meaning of Mississippi Code Annotated section 37-9-29 (1972)?

(2) Was it error to allow two witnesses to testify whose names were omitted from the list of state witnesses furnished to the defendant on order of the court?

At trial, the state failed to produce documentary evidence conclusively that the prisoner, Willie White, Jr. was confined because of a felony charge on the date in question. There was, however, oral testimony to that effect.

The court clerk of the City of Grenada Police Court testified that an affidavit was sworn out before him charging Willie White, Jr. with burglary of a dwelling. He further testified that court records showed White was placed in the Grenada City jail the same day, and that five days later he was present at a hearing in City Court where White was bound over to await Grand Jury action on the same charge.

The Police Court justice of Grenada testified that White appeared before him on burglary charges and that he bound White over to await Grand Jury action. He also testified that the usual custom and practice is that upon being bound over, the person is transported on that same day to the Grenada County jail.

Willie White, Jr., himself, as well as others, testified that he was present in the Grenada County jail on the date of the attempted escape.

It is well established in Mississippi that a jury, as the finder of fact, is entitled to consider not only facts as testified to by witnesses, but all inferences that may be reasonably and logically deduced from the facts in evidence. Cameron v. Hootsell, 229 Miss. 80, 90 So.2d 195 (1956).

Here, the evidence shows an affidavit was sworn out charging Willie White, Jr. with a felony offense, he was bound over to the Grand Jury on that charge, and he was present in the Grenada County jail when the attempted escape occurred.

Based on the preceding facts, the jury could reasonably conclude that White was confined in the Grenada County jail on a felony charge on the date in question.

Prior to trial the defendant requested and received an order for the production of evidence which, among other things, required production of “the names and addresses of all witnesses expected to be called to testify in the cause by the State of Mississippi.” The names were to be furnished before 5:00 p. m., February 1, 1977. The state furnished a list of witnesses, but the names of the justice and court clerk of the Grenada Police court were omitted.

At trial on February 4, 1977, the state attempted to put on these two witnesses. Each time the defense objected to the testimony because they were not on the list provided by the state. It should be noted that at no time did the defendant' object because of the best evidence rule or other grounds. Thus, the question on appeal is limited to whether there was error in admissibility due to omission of the names from the list of witnesses. Miss. Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838 (1914).

As pointed out recently, Mississippi, unlike some other states, has no statute requiring the state to furnish names of its witnesses to a defendant. Tapp v. State, 347 So.2d 974 (Miss.1977). A trial judge may, however, require such a list when in his discretion he determines it would aid the ends of justice.

In Varnado v. State, 338 So.2d 1239 (Miss. 1976), a witness was allowed to testify even though the name of the witness had been omitted from the list furnished by the state on order of the court, since under the circumstances it was found not to be prejudicial. There, the state substituted a pathologist for the doctor who had been on the witness list and promptly notified the defendant, who had opportunity to interview the witness before trial. In analogous situations, this Court has announced the standards to be applied when there is an omission to produce under court order to do so. Armstrong v. State, 214 So.2d 589 (Miss. 1968) held that a defendant should be able to examine tangible evidence which may be used against him. Yet, it has been held that failure to produce tangible evidence is not per se grounds for reversal. Instead, the court has inquired into whether or not admission of the evidence would be [unduly] harmful or prejudicial to the defendant. Grady v. State, 274 So.2d 141, 142 (Miss. 1973); Hannah v. State, 336 So.2d 1317, 1322 (Miss.1976).

In its inquiry, the Court has examined the record to determine, among other things:

(1) Whether the state had the evidence when the request was made.

(2) How long before trial the state acquired the evidence.

(3) Whether or not the defendant asked for a continuance upon the introduction of evidence.

(4) Whether or not the introduction of the evidence was harmful and prejudicial to the defendant in the light of all the circumstances.

In states where witness’ lists are required by statute, the effect of omissions is vested in the discretion of the trial judge. The only limitation is that the judge must actually inquire into the circumstance surrounding the non-compliance. Hardison v. State, 341 So.2d 270 (Fla.Ct.App., 1977).

In the present case, such an inquiry occurred. During the trial when objections were made, the trial judge conducted hearings in chambers. By analogy to the cases on tangible evidence, there was inquiry into the purpose of the witnesses’ testimony, when the witness had been contacted by the state, the effect on defendant’s case and other circumstances regarding the omission.

The trial judge determined the testimony of each witness was for the limited purpose of establishing that the escapee was confined on a felony charge; that neither witness had been asked to testify until the evening before the trial, nor had either discussed the substance of their testimony with the state attorneys; and, that the subject matter of the witnesses’ testimony was a matter of public record, readily available to defendant. Furthermore, no motion was made by appellant for a continuance and we doubt that one would have been justified under these circumstances.

We, therefore, hold it was not reversible error to allow the testimony of the witnesses, even though their names were omitted from the required list, since the trial judge made proper inquiry into the facts and circumstances and concluded there was no undue harm and prejudice, nor was there shown any bad faith on the part of the state.

For the above stated reasons, the conviction and sentence of two years in the penitentiary are affirmed.

AFFIRMED.

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


text:
    Lee ANTHONY v. STATE of Mississippi.
    No. 50314.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Cason Rankin, Carroll E. White, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.

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

for the Court:

This is an appeal from the Circuit Court of Lee County, Mississippi, wherein appellant was indicted for the crime of aggravated assault, tried, convicted and sentenced to seven years in the custody of the State Department of Corrections with four years of said sentence suspended.

The appellant’s sole assignment of error is that the court erred in sentencing him for a felony instead of a misdemeanor under Mississippi Code Annotated section 97-3-7 (Supp.1976).

In support of this assignment of error, the appellant argues that the indictment does not charge that the alleged act was “feloniously” done, and consequently the defendant may only be sentenced for a misdemeanor. The statute under which the appellant was convicted is section 97-3-7 (Supp.1976) styled, “Simple assault — aggravated assault.” Subsection (1) of 97-3-7 defines the crime of “simple assault” and provides a penalty therefor ranging from a fine of not more than $500 to imprisonment in the county jail for not more than six months, or both, with a greater penalty imposed under certain circumstances, where the assault is upon a law enforcement officer or fireman. However, subsection (2) of that same statute defines the crime of “aggravated assault” and provides for punishment ranging from not more than one year in the county jail, nor more than twenty years in the penitentiary, except in special circumstances involving law enforcement officers and firemen.

The appellant argues in his brief that he could not have known what type sentence he would receive until sentence was imposed and that he had every right to proceed to trial under the belief that he was being tried for the commission of a misdemeanor since the indictment did not use the word “feloniously.” However, this contention is without merit. The accused needed only to compare the indictment against him with the statute to readily see that he was charged with aggravated assault under subsection (2) of section 97-3-7. The indictment against him alleged that he did “. . . knowingly and purposely cause bodily injury to one Clay Lee Anthony, by cutting the said Clay Lee Anthony with a deadly weapon, to-wit: A knife . . . .” (Emphasis added). The indictment followed the wording of the statute and generally that is all that is necessary to advise an accused of the charge against him. State v. Labella, 232 So.2d 354 (Miss.1970).

The subsection of the statute under which the appellant was charged does not contain the word “feloniously” and it was not necessary to include the word in the indictment. The averment that the appellant knowingly and purposely caused bodily injury to Clay Lee Anthony “with a deadly weapon,” a knife, clearly categorized the assault as an aggravated assault under subsection (2) of 97-3-7 as distinguished from a simple assault and as defined in subsection (1) of 97-3-7.

There is no misdemeanor feature contained in subsection (2) of 97-3-7 (aggravated assault). It is true that the appellant could have, in the discretion of the trial judge, been sentenced to the county jail for a period of not more than a year, which is ordinarily within the range of punishment provided for the commission of a misdemeanor. However, this Court has adopted the rule that when the court or the jury is given the discretion to fix punishment for an offense by imprisonment in the penitentiary or by fine or confinement in the county jail, such offense is held to be a felony regardless of the penalty actually imposed. Bellew v. State, 238 Miss. 734, 106 So.2d 146 (1958); Ellis v. State, 203 Miss. 330, 33 So.2d 837 (1948); State v. Sansome, 133 Miss. 428, 97 So. 753 (1923). Therefore, even though subsection (2) of section 97-3-7 provides for punishment for aggravated assault ranging from not more than one year in the county jail or in the penitentiary for not more than twenty years, except in special circumstances involving law enforcement officers or firemen, the crime is nevertheless a felony regardless of the punishment imposed.

We have considered the case of State v. May, 147 Miss. 79, 112 So. 866 (1927) relied on by appellant and are of the opinion that it has no application to the facts of this case. The indictment there was drawn under an entirely different statute where the gist of the offense was the intent with which the shooting was done.

In this case, the element which elevates the crime from a misdemeanor to a felony is the use of a deadly weapon to accomplish the act. Compare subsections (1) and (2) of section 97-3-7 (Supp.1976).

The judgment and sentence of the lower court are affirmed.

AFFIRMED.

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

APPENDIX

§ 97-3-7. Simple Assault — aggravated assault.

(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Provided, however, a person convicted of simple assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.

(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

      . See appendix.


author: PATTERSON, Chief Justice,

text:
    Melvin Kenneth BRUCE v. STATE of Mississippi.
    No. 50219.
    Supreme Court of Mississippi.
    Sept. 21, 1977.

      Sumner & Sumner, John M. Sumner, Wi-nona, for appellant.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Melvin Kenneth Bruce was indicted in Carroll County, Second Judicial District, for the murder of Jimmy Dale Meredith. By change of venue he was tried in the Circuit Court of Webster County where he was convicted of manslaughter and sentenced to fifteen years in the state penitentiary.

His appeal presents the following issues:

1. Was there evidence of culpable negligence causing Meredith’s death sufficient to withstand a motion for a directed verdict?

2. Did the trial court err in not directing a verdict for the defendant under the “Weathersby Rule”?

3. Was it prejudicial error to introduce photographs of the deceased?

The appellant admits that Meredith died from a gunshot wound inflicted by him. According to his testimony, he, his brother Brown Lee Bruce, III (Buster), and Meredith were engaged in a game of “Russian Roulette” following a morning of smoking marijuana and drinking beer. The fatal episode which occurred in the home of decedent’s mother, can be best described by the appellant’s words:

Q. All right. When you made — tell us about the second trip to Farrish’s store.
A. We got another six-pack of beer. We talked to Marvin out there up under this pine tree. We left there and rode down the road, and then we come-back by and went to Jimmy Dale’s house and went to the back bedroom and got on the phone and Buster talked to Carolyn and I talked to her and Jimmy Dale — we all talked to her. Then one of us come up with the idea of playing Russian Roulette, so Jimmy Dale pulled the gun from under the foot of the bed—
Q. You say, one of us. Do you remember who?
A. No, sir.
Q. O.k., when you say, one of us, can you narrow it down any?
A. Me or Jimmy Dale, one.
Q. All right, go ahead.
A. And, he unloaded the gun and handed it to me and I was looking at the window and he told me it was his granddaddy’s gun and, then, I handed the gun to him to play Russian Roulette, him or me, one, said it, and he was going to put the empty shell in it and I handed it to him, and he handed it to me and I opened it and seen it was empty and put it to my head and clicked it and Buster wouldn’t touch the gun, and I clicked it at him, and Jimmy Dale clicked it at his own head. Then, he decided — me or him, one, decided to play it again with the other empty shell. I handed it to him and he redone it and I opened the cylinder and seen that one of them was empty and—
Q. Now, you say, he redone it. What do you mean, he redone it?
A. He put another shell in it. It.was supposed to have been an empty shell. And, I opened the cylinder and seen one of them was empty and went to pull the other one out, but I didn’t, and I didn’t think he would put a real bullet in it, so I closed it up, and put it to my head and clicked it and pointed it at Buster and clicked it and pointed it at Jimmy Dale and it fired.
Q. Did you expect it to fire?
A. No, sir.
Q. Would you have put it to your own head if you’d known it was a live round in it?
A. No, sir.
Q. - What happened, then, after the bullet fired?
A. Well, I looked at Buster and then went to the bed. He was laying on the bed — he took the gun from my hand and laid it beside him and we run.
Q. Did anybody wipe the gun off?
A. Yes, sir, I did.
Q. Do you know whether or not your brother might have wiped it off also?
A. No, sir.

The record discloses that Meredith had informed the police of a crime committed by Brown Lee Bruce, III, for which he had been sentenced to serve five years, and that he had threatened “to get even” with Meredith. Brown Lee Bruce, III, testified that he was three years older than Kenneth and that it was Meredith’s idea to pay Russian Roulette and not his brother’s. He admitted wiping fingerprints from the gun and placing it by the hand of Meredith so the death would appear to be suicide. He stated that he and the appellant avoided the roads in running home after the shooting because they were scared. He denied dir recting “get-even” threats to Meredith.

The sheriff testified that both the appellant and his brother denied knowledge of the occurrence when first questioned, but later recanted giving the above or similar version of the shooting. A test of decedent’s blood revealed no trace of alcohol and it was the opinion of Dr. Hume, a toxicologist, that it would take three or four hours for the alcohol from four beers to dissipate to a negative blood level.

Mississippi Code Annotated section 97-3-47 (1972) provides:

Homicide — all other killings.
Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

The jury was instructed upon the state’s theory that Meredith’s death was the result of culpable negligence.

In Jemigan v. State, 305 So.2d 353 (Miss.1974), a murder trial where the defendant claimed accidental discharge of a gun and a manslaughter verdict was returned, we stated, in holding that a fact question for determination on culpable negligence was presented for the jury, the following:

The evidence in this case establishes that defendant pointed a loaded gun at Clarence Bowers, and that the gun discharged, killing Bowers. Defendant’s actions unequivocally show a conscious, wanton and reckless disregard of the likely fatal consequences of his willful act which created an unreasonable risk. The evidence overwhelmingly supports the jury’s verdict of manslaughter. See Fra zier v. State, 289 So.2d 690 (Miss.1974); Campbell v. State, 285 So.2d 891 (Miss. 1973); Gant v. State, 244 So.2d 18 (Miss. 1971). In Robertson v. State, 153 Miss. 770, 121 So. 492 (1928) this Court stated:
If the pointing of a loaded pistol at a human being is not culpable negligence, under the above definition, then it would be difficult for the mind of mortal man to conceive of stronger facts which would constitute such negligence. (153 Miss. at 776, 121 So. at 493). [305 So.2d at 354]

Compare Latiker v. State, 278 So.2d 398 (Miss.1973). We are of the opinion the appellant’s own testimony was sufficient to withstand a directed verdict and was likewise sufficient for the jury to determine that Bruce was guilty of wanton disregard of human life, culpable negligence, in pointing a deadly weapon at Meredith and deliberately pulling the trigger.

The rule announced in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), “that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the-state, or by the physical facts or by the facts of common knowledge” has no present application because the defendant’s testimony while probably successful in exonerating him from the murder charge, was nevertheless incriminating on culpable negligence. Defendant’s version of the facts concerning the fatal shot depicts gross indifference and reckless disregard for human life as well as the consequences of his act.

The next act concerns the introduction into evidence of photographs of the deceased. During the opening phases of the trial the defendant offered to stipulate that the appellant fired the shot which caused Meredith’s death. The state rejected this stipulation and defense counsel in the presence of the jury made an admission to that effect. When the state later offered the photographs into evidence, an objection was interposed because the death was admitted and therefore the photographs had no probative value and served only to inflame and prejudice the jury against the defendant.

A coroner’s report on the cause and fact of death was the subject of stipulation in Curry v. State, 328 So.2d 328 (Miss.1976). We nevertheless held that although the photographs served no useful purpose, they were not prejudicial because we did not think they were inordinately gruesome to an adult jury acquainted with the norms of life and death. Again, we discern no useful purpose for the introduction of the photographs, but conclude they were not prejudicial under the circumstances of this manslaughter case.

In our opinion the evidence amply supports the verdict of the jury and there appearing no prejudicial error in the record, the verdict and sentence of the court are affirmed.

AFFIRMED.

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


text:
    CITIZENS AND SOUTHERN FACTORS FINANCIAL CORP. v. Byron H. WEEKS.
    No. 50216.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    John Paul Moore, Starkville, for appellant.
    Thomas A. Coleman, Ackerman, for ap-pellee.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


author: SHORES, Justice.

text:
    M. M. MILES et al. v. BANK OF HEFLIN, a Banking Corp. BANK OF HEFLIN, a Banking Corp. v. M. M. MILES et al.
    SC 2346, SC 2346-X.
    Supreme Court of Alabama.
    July 29, 1977.
    Rehearing Denied Sept. 26, 1977.
    James D. Pruett, Gadsden, W. E. Rutledge, Anniston, for appellants and cross-appellees.
    John S. Casey, Heflin, Robert D. Propst, Anniston, for appellee and cross-appellants.
   SHORES, Justice.

This litigation has already been before this court twice. In Ex parte Miles (In re: Bank of Heflin v. Miles), 294 Ala. 462, 318 So.2d 697 (1975) this court granted writ of mandamus directing that the stockholders-petitioners be allowed to examine and audit “all books and records” of the Bank. In the second case, Miles v. Bank of Heflin, 295 Ala. 286, 328 So.2d 281 (1975), this court held that the trial court erred in granting the Bank’s motion for summary judgment and dismissing the stockholders’ counterclaim seeking the 10% statutory penalty provided for in Title 10, § 21(46) Code.

Pursuant to this court’s ruling in Ex parte Miles, supra, accountants for the stockholders began an examination of the books and records of the Bank on September 29, 1975. The accountants were in the Bank for four 5-hour days, the Bank’s working hours, on September 29 and 30 and October 2 and 3. During the course of these 4 days, it was discovered that expense checks covering an 18-month period were missing. Bank officers subsequently testified that although they knew that there were “any number” of books and records that the accountants had not had an opportunity to see on Friday, October 3, the directors of the Bank held a meeting on Saturday, October 4, and unanimously voted not to permit any further inspection of the records of the Bank. It is the Bank’s position that the stockholders, by letter from their attorney to the Bank’s attorney, had agreed to limit the inspection to the work week beginning Monday, September 29. The record will not support this argument. The letter at most was an estimate by the attorney of the length of time he expected the inspection to take. When the accountants reappeared at the Bank on the following Monday, October 6, 1975, they were not allowed to continue the examination. It is uncontroverted that the examination did not continue on that day, although the officers of the Bank conceded that the examination ordered by this court in Ex parte Miles, supra, had not been completed.

The stockholders then filed a motion with the trial court to “elaborate their rights of examination” and to require certain Bank officials to show cause why they should not be held in contempt for failing to comply with the trial court’s first order. The record before us begins with the hearing on this motion, which culminated in the trial court orally granting the stockholders twelve hours’ additional time to make the inspection. Officers of the Bank testified at this hearing that, although the expense checks had been destroyed, they were readily available on microfilm and could be easily found, because they were filmed in numerical sequence at the beginning of each day’s activities.

Pursuant to the order granting additional time, the accountants returned to the Bank to continue the inspection. This second examination revealed that, contrary to what officers of the Bank had stated, the missing expense checks were not serially filmed at the beginning of each day’s filming but were filed at random, interspersed with customer’s checks. Some 1,000 of the missing checks were not filmed at all. The absence of the checks and no microfilm copies thereof being available required a cumbersome, time-consuming effort to verify payments represented by such checks. In short, the accountants could not finish the inspection within the time allotted.

During the course of the second examination, the stockholders’ examiners were not allowed to see an independent audit of the Bank previously made by Seidman & Seid-man, although the Bank’s president had testified at the hearing that it would be available; they were refused “aging reports” which are lists of past due loans showing how long each has been past due; and they have not been allowed to see the Bank’s loan portfolio including information as to how such loans are collateralized.

When the time allowed by the court for the second examination expired without a full inspection of the records, the stockholders filed a motion with the trial court for reconsideration and rescission of its earlier order. While this motion was pending, the decision of this court in Miles v. Bank of Heflin, supra, was announced. The stockholders then broadened their motion to claim the statutory penalty and also sought attorneys’ fees. It was contended in that motion that the trial court had unreasonably limited the time in which the stockholders were allowed to inspect the Bank’s records. After hearing on this motion, the trial court entered an order holding that the stockholders had had ample time to inspect the Bank’s records “in that they have had seven days for inspection which, as the Court understands after talking to a Federal Bank Examiner, is almost twice the time they would take to examine a similar bank.” The trial court also noted in its order that the “. . . purpose of the examination is mere idle curiosity.” The court allowed the statutory penalty mandated in Miles v. Bank of Hefiin, supra, and denied any attorney’s fee holding that the “. . . Supreme Court’s order of March 5,1976 [i. e., the decision in Miles v. Bank of Heflin ], is res judicata with regard to such claims for attorneys’ fees.” Curiously, after finding that the purpose of the examination was “mere idle curiosity,” the court allowed 8 additional hours for the stockholders to complete the inspection of the books and records of the Bank.

Both sides complain about this order on appeal. The stockholders contend they have been denied adequate time for inspection of records of the Bank to which they are entitled. The Bank appeals from the award of the penalty.

It is the Bank’s contention, and the trial court evidently agreed, that the stockholders have been given ample time to complete an inspection of any records to which they are entitled. This court has previously held that the statutory right of inspection must be exercised at reasonable and proper times. Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963). For obvious reasons, no precise time has been judicially determined as a reasonable time. What constitutes a reasonable time is a matter to be decided under the facts of each case. A stockholder has a right to inspect the books and records of his company. The corporation has a concurrent right to carry on its business. These two rights must be accommodated. Smith v. Trumbull Farmers Gin Co., 89 S.W.2d 829 (Tex.Civ.App.1936). The time necessary to make a thorough inspection of a corporation’s books and records is directly dependent upon the accessibility of those records to the stockholder. The corporation can either make those records readily accessible, thereby reducing the time required for a complete inspection, or it can make it difficult for the stockholder to ferret out the information. The difficulty may result from the manner in which the corporate records are kept or from other reasons. It may be inconvenient for the corporation to make its records available, but the stockholder has a right to inspect them; and, although he does not have a legal right to unduly interfere with the conduct of the corporation’s business, his right to inspect cannot be denied merely because it causes an inconvenience to the corporation. State ex rel. Spinney v. Sportsman’s Park & Club Ass’n, 29 Mo.App. 326 (1888). This is especially true where that inconvenience is the result of actions by the corporation itself or the result of circumstances for which neither party is at fault.

It is uncontroverted that the stockholders in this case, since their initial demand in late 1974, have been denied access to the accounts receivable “aging reports,” to the audit made by Seidman & Seidman, independent auditors, and have been unable to locate missing expense checks covering some 18 months. Minutes of meetings of the Board of Directors were withheld until the final day of the inspection period allowed by the trial court.

We have read the entire record in the case before us. The reason for the failure to allow a full inspection as ordered by this court in Ex parte Miles, supra, is expressed in various ways. At page 150 of the record, the Bank’s attorney, referring to the decision of this court, said:

“. . . but the point is here the Supreme Court order . . . it is confusing and a person can’t tell what to comply with or not.”

If the mandate of Ex parte Miles, supra, is confusing to the Bank, we are unable to make it any clearer. It ordered the trial court “. . .to enter an order allowing examination and audit of all books and records of the Bank . . .” (294 Ala. at 466, 318 So.2d at 700).

These stockholders have invested their money to the capital of this Bank. They have a clear legal right to inspect the books and records of that Bank to determine whether its affairs are being conducted in a proper manner.

In addition to its assertion that it cannot understand what the holding in Ex parte Miles, supra, required it to produce for inspection, the Bank also seems to think it is no longer necessary for it to abide by the holding in that case.

After the opinion in Ex parte Miles was announced, the Alabama Bankers Association had sponsored a bill in the legislature to limit the right of inspection by stockholders of banks. The bill became law, and although not before us, and we have not been invited to construe it, it is apparent from the record that Bank officers believed it relieved the Bank of the obligation to allow these stockholders the full inspection ordered in Ex parte Miles. The record shows the following:

“Q Now, Mr. Payne [President of the Bank], Mr. Klein [stockholders’ accountant] testified that you refused to allow him to see certain records of the bank on his last visit to the bank because you took the position that the provision of the Statute of Alabama under which he was examining the records had been changed and that prevented him from seeing those records. Did you take that position with him?
“A Yes, I did.
“Q What records was it that you refused to allow Mr. Klein to see on the basis that this statute adopted at [sic, after] the Supreme Court decision barred him from seeing them?
“A The only records he asked to see, if I recall correctly, that he was refused was the loans and financial statements of customers, bank directors, officers and employees.
“Q Weren’t you advised at the time that the demand was made that the purpose was to ascertain whether there was evidence of any action taken not in accordance with the best interests of the shareholders of the corporation, particularly but not limited to misuse of corporate funds, misuse of corporate assets, diversion of corporate assets to personal benefit of directors, misappropriation or misapplication of corporate assets, or favoring of customers who have personal connection with officers or directors of the corporation? Were you told that?
“A Yes.
“Q Now, going to the Sidman and Sid-man [sic, Seidman and Seidman] report, I take it from Mr. Casey’s question that you don’t have any objection to our seeing the Sidman and Sidman [sic, Seidman and Seid-man] report; is that right?
“A I have an objection to you seeing the Sidman and Sidman [sic, Seidman and Seidman] report. That deals with confidentiality of customers’ records.
“Q Let me see if I understand that properly. You are taking the position, despite the order of the Supreme Court of Alabama, that you object to our seeing any portion of the Sidman and Sidman [sic, Seid-man and Seidman] report relating to what you have phrased as confidential customer relations; is that right?
“A Yes.
“Q What do you include in that?
“A Any mention of names and amounts of the customers.
“Q Names?
“A Such as a certain customer has a certain overdraft, such and such loan is past due in the amount of such and such.”

Mr. Payne gave the same reason for refusing the stockholders access to the “aging reports,” i. e., that such reports revealed the “names and amounts of people who are past due.”

From the foregoing, it is apparent that the stockholders have been denied access to records which this court has held they are entitled. It is also apparent that the Bank’s president, at least, believes the Bank is no longer required to abide by this court’s decision. Although, in brief, the Bank’s attorney does not seem to rest his argument on the passage of the act which followed Ex parte Miles, he does say that the vote of the legislature for passage was “almost unanimous.” We do not address ourselves to the effect of the act passed by the legislature. The trial court has not done so, and its application or validity on the present record is not before us.

Because the evidence is uncontra-dicted that the stockholders have not yet been allowed the full inspection ordered by this court in Ex parte Miles, supra, the order of the trial court limiting that right is reversed. They are entitled to that inspection and should not be limited to a precise, preset time limitation. Although the inspection should not unreasonably interfere with the conduct of the Bank’s business, the time required to complete it is secondary to the right to do so.

We turn now to the other aspect of the stockholders’ appeal. It has long been held by this court that there is no inherent right to have an award of attorneys’ fees in the absence of contract, statute, or a recognized ground of equity. Low v. Low, 255 Ala. 536, 52 So.2d 218 (1951); Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927). Among the recognized grounds in equity for awarding attorneys’ fees is the furtherance of intracorporate litigation by stockholders to the benefit of the corporation. Blythe v. Enslen, 219 Ala. 638, 123 So. 71 (1929); Decatur Mineral & Land Co. v. Palm, 113 Ala. 531, 21 So. 315 (1896).

The stockholders argue that they have bestowed a benefit upon the corporation by compelling it, after unusual effort, to comply with the statute and by forcing a clear and decisive settlement of the stockholders’ rights of inspection. In support of this argument, several cases are cited which deal with the award of attorneys’ fees to stockholders in situations where the benefit to the corporation has been questioned. The leading case on this point is Mills v. Electric Auto-Lite Company, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).

In Mills, minority stockholders alleged that a proxy statement sent out by management to solicit votes in favor of a merger was misleading. The District Court ruled, as a matter of law, that the claimed defect in the proxy statement was a material omission and granted an interlocutory judgment on the issue of liability, referring the case to a master for consideration of appropriate relief. On an interlocutory appeal to the Federal Seventh Circuit, that court affirmed the trial court’s conclusion that the proxy statement was materially deficient, but reversed on the issue of whether the material omission had a causal relation to the outcome of the vote on the merger.

The United States Supreme Court granted certiorari and reversed, holding the minority stockholders had established their cause of action and the Seventh Circuit should have affirmed the partial judgment on the issue of liability. The case was remanded for the determination and award of appropriate relief. That court also ruled that the stockholders were entitled to an interim award of litigation expenses and reasonable attorneys’ fees for having established a violation of the securities laws by their corporation and its officials, it being unnecessary to show a pecuniary benefit to their corporation or to their fellow stockholders.

The stockholders also cite Bosch v. Meeker Cooperative Light & Power Ass’n, 257 Minn. 362, 101 N.W.2d 423 (1960), in support of the proposition that the benefit to the corporation and the other shareholders need not be capable of being measured in monetary terms to justify an award of attorneys’ fees. In Bosch, the Minnesota Supreme Court allowed the reimbursement of a stockholder for his expenses in obtaining a judicial declaration that the election of certain corporate directors was invalid. The court stated its interpretation of a substantial benefit as follows:

“. . . [A] substantial benefit must be something more than technical in its consequence and be one that accomplishes a result which corrects or prevents an abuse which would be prejudiced to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder’s interest.” (257 Minn, at 366, 367, 101 N.W.2d at 427.)

We agree with the holdings in Mills and Bosch that a pecuniary benefit is not essential to justify, under equitable principles, the award of attorneys’ fees. We are aware of the tenacity of the stockholders in the instant case in asserting their rights. But, we are not prepared to state at this stage, where the inspection has not been completed, that their efforts have bestowed a benefit on the corporation and thereby the other stockholders. Their efforts to inspect the records, which every stockholder has, have been Herculean. To the extent that it is unlikely that other stockholders will meet with the same resistance faced by these, other stockholders have, in a sense, benefited from their efforts.

Although the stockholders before this court have established a violation of their statutory right to inspect the books and records of their corporation, on remand of Miles v. Bank of Heflin, supra, the trial court awarded those stockholders a penalty in excess of $34,000. But as yet, they have not established that their corporation and its officials are in violation of other duties to the stockholders. Because the penalty in this case has sufficiently reimbursed these stockholders for expenses thus far incurred in their efforts to inspect the Bank’s records, we think it premature to award additional reimbursement at this time. If a full inspection discloses no evidence of mismanagement or misuse of funds, or other conduct for which management would be answerable, it would not be proper to require reimbursement to the stockholders of attorneys’ fees, notwithstanding the unusual lengths to which these stockholders have had to go to exercise a legal right. Of course, if the Bank continues to deny a full and complete inspection, requiring the stockholders to continue to incur litigation expense, it may well be equitable to require the Bank to reimburse them for such further recalcitrance by the Bank to follow the explicit orders of this court may well constitute contemptuous conduct.

For this reason, we affirm the trial court’s order denying attorneys’ fees. We do not, however, suggest by this holding that the stockholders may not ultimately be entitled to attorneys’ fees upon establishing a substantial benefit to the corporation, pecuniary or otherwise.

The Bank appealed from the order of the trial court granting the stockholders the statutory penalty under the mandate of Miles v. Bank of Heflin, supra. It candidly admits that the arguments advanced for reversal of that case are the same as those made in application for rehearing on original deliverance of that opinion. Those arguments were carefully considered at that time and have been reconsidered here. The court declines to overrule its opinion in that case.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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


author: EMBRY, Justice.

text:
    James H. WHIGHAM, Individually, et al. v. TRAVELODGE INTERNATIONAL, INC., et al.
    SC 2235.
    Supreme Court of Alabama.
    Aug. 19, 1977.
    Rehearing Denied Sept. 30, 1977.

      E. D. McDuffie, of McDuffie, Holcombe & Prince, Tuscaloosa, for appellants.
    N. Lee Cooper, Donald J. Stewart, Birmingham, Sam M. Phelps, Tuscaloosa, for appellees.
   EMBRY, Justice.

This appeal, by James H. Whigham, Individually and as Executor of the Estate of Bessie A. Whigham, is from a judgment that denied recovery from Travelodge International, Inc., a corporation; Tuscaloosa TraveLodge, a copartnership; and Lloyd M. Baker and Janice Ann Baker, of the sum of approximately $180,000 plus, which Whig-ham claimed the estate of Bessie A. Whig-ham was compelled to expend for defendants’ benefit in order to protect an interest in certain improved real estate.

We affirm.

Whigham sought recovery under the theories that: there was fraud or overreaching by defendants resulting in execution of a 1973 mortgage by him and Mrs. Whigham; there was breach of a contract obligation regarding the 1973 mortgage; and defendants were liable to him or Mrs. Whigham’s estate as sureties for monies paid on their behalf by Whigham or the estate of Mrs. Whigham.

The trial court heard this action without a jury and its findings of fact is an excellent summary of the evidence, and amply supported by it:

“On December 12, 1962, the TraveLodge Corporation, a California corporation, and Loyd M. and Janice Ann Baker entered a ‘Joint Venture Agreement.’ The stated purpose of this joint venture, which was named the Tuscaloosa TraveLodge, was to jointly construct and operate a motel. Tra-veLodge Corporation assigned to the joint venture a lease of certain property upon which a motel had been partially completed.

“In March of 1963, a lease was executed. TraveLodge Corporation entered the agreement as lessee and throughout the lease Bessie A. Whigham was referred to as lessor. However, in executing the lease both Bessie A. Whigham and James H. Whigham signed as lessor. The lease was for a term of forty-eight years and five months expiring August 31, 2011, on a parcel of property located in Tuscaloosa, Alabama, on which TraveLodge proposed to build and operate a motel as a joint venture with Defendants Loyd and Janice Baker. Prior to that time, TraveLodge, with the approval of the lessor, had executed a mortgage to Life and Casualty Insurance Company of the property in question to secure a loan of $140,000 financing the construction of the motel. Under the terms of the lease, Travelodge agreed to pay rent of $400 per month plus 7V2% of the gross annual income in excess of $64,000 and to make the payments on the mortgage to Life and Casualty Insurance Company. The lease also stated that Tra-veLodge had the right at any time before the full payment of the mortgage to refinance ‘the principal balance remaining due’ at an interest rate not in excess of 614%, provided that the maturity date of the refinancing was not later than April 7, 1973. In the event of a refinancing of the principal balance remaining upon such terms, TraveLodge agreed in the lease to pay the refinanced balance. The lease expressly provided that ‘[u]pon written request from TraveLodge, Lessor shall execute any documents not to include the execution of any mortgage NOR THE ASSIGNMENT OF THIS LEASE which may be required to accomplish said refinancing.’

“TraveLodge entered into the lease in accordance with its obligation under a joint venture agreement with Defendant Loyd and Janice Baker dated December 15, 1962. After its construction, the motel on the property leased from the Whighams was operated as a joint venture of TraveLodge and the Bakers pursuant to the joint venture agreement.

“In the early part of 1972, after the motel had been in operation for a number of years, Defendant Loyd Baker proposed to Bessie and James Whigham that a new mortgage on terms not contemplated by the refinancing provision of the lease be placed on the motel and property. Under Baker’s proposal, the proceeds of the new mortgage loan would be used to pay off the existing mortgage to Life and Casualty Insurance Company and to upgrade the motel facility. The remainder of the proceeds would be divided evenly between TraveLodge and the Bakers, the intent of the Bakers being to use their share to establish a second TraveLodge motel in Tuscaloosa which they felt would generate more business for the existing motel. On May 5,1972, James and Bessie Whigham signed an agreement stating that they consented to the execution of a new mortgage loan in the principal amount of ‘$180,000.00, payable over 15 years at an interest rate of 9%,’ that they would subordinate their interest in the motel property to the new mortgage, and that they would directly receive none of the proceeds of the new mortgage loan.

“In August of 1973, some 15 months after the May 5, 1972, agreement was signed, the new mortgage loan was obtained. A promissory note payable to City Federal Savings and Loan Association of Birmingham in the amount of $180,000 payable over 15 years at an interest rate of 9% was signed by the joint venture and endorsed by TraveLodge as guarantor. Simultaneously, a new mortgage in favor of City Federal was executed by Plaintiffs Bessie and James Whigham, TraveLodge, and the joint venture. The property pledged as security under the mortgage was the motel property itself

together with the interest of all the undersigned in that certain lease recorded in Deed Book 488, Page 740, and any amendments and/or modification thereto; (said lease being dated March 20, 1963, and filed for record on April 4, 1963) by and between the above referred to corporation as Lessee and the above referred to individuals as Lessors and the above referred to copartnership as Assignee of the above described real estate situated in Tuscaloosa County, Alabama.

“The proceeds of the new mortgage loan were used to pay off the $58,722.70 balance on the Life and Casualty Insurance Company mortgage and the $18,892.62 balance on a $20,000 loan that had been taken out for purposes of upgrading the motel furnishings in November of 1972. The excess was divided between the Bakers and Tra-veLodge as specified in the Agreement of May 5, 1972. TraveLodge’s share amounted to $47,847.62; the Bakers’ share also amounted to $47,847.62, out of which they purchased a TraveLodge franchise for $10,-000 and used the remainder to invest in land on which the new TraveLodge was to be located.

“Payments on the new mortgage debt were made from August, 1973, until November 1974, when the income from the operation of the motel became insufficient to meet the mortgage payments as they became due. Defendant Loyd Baker testified that the joint venture began exploring various methods of remedying the past due status of the debt. He personally contacted the mortgagee with a request that the joint venture be allowed to pay only the interest on the loan until such time as business improved, but the mortgagee rejected this proposal. Travelodge offered to put up one half of the money to cure the arrearage and to lend the Bakers an equal amount to be used by them as their contribution, but Baker was reluctant to increase his personal indebtedness in view of his existing obligations.

“On March 4, 1975, Bessie A. Whigham died, naming her husband James H. Whig-ham as her sole testamentary heir and as the executor of her estate. On March 21, 1975, Plaintiff James Whigham purchased the note and mortgage from City Federal for the sum of $186,374.98. By letter to TraveLodge dated March 28,1975, Plaintiff James Whigham’s attorney gave notice that the note had been purchased from City Federal and requested TraveLodge to contact him if it ‘care[d] to discuss settlement of this matter with [him] before foreclosure proceedings [were] started. . . . ’ By a letter to Plaintiff James Whigham’s attorney dated April 16, 1975, in response to his letter of March 28th, TraveLodge advised him of the negotiations between TraveL-odge and the Bakers concerning the remedy of the mortgage arrearage and indicated that ‘[i]n any event, it should not be necessary for your office to initiate foreclosure proceedings.’ On the next day, April 17, 1975, Plaintiff James Whigham’s attorneys published the first foreclosure notice.

“On April 30,1975, the original complaint in this action was filed requesting (1) an accounting of the proceeds of the August, 1973, loan transaction and a determination of the portion of such proceeds due the plaintiff as executor of the estate of Bessie A. Whigham, (2) immediate possession of motel premises, and (3) the sum of $185,-374.98.

“On May 9, 1975, a foreclosure sale was conducted by Plaintiff James Whigham’s attorney. James Whigham attended the sale, as did George Maynard, an attorney representing TraveLodge who testified at trial that he was authorized by TraveLodge to bid up to the amount of $190,000 and that he had made bank wire arrangements for that sum of money to be available in Tuscaloosa on the date of sale. Upon the opening of the bidding, Plaintiff James Whigham instantaneously bid $190,000, the amount of the indebtedness plus legal charges, thereby preempting a bid by Maynard on behalf of TraveLodge. There were no other bidders, and Plaintiff James Whig-ham purchased the property for himself at the sale. TraveLodge and the Bakers surrendered possession of the motel premises to Plaintiff James Whigham after the sale on May 9, 1975.

“An amended complaint was filed on June 10,1976, in which certain of Plaintiff’s original factual allegations were amended and plaintiff’s demand for relief was reduced to a prayer that the Court ‘issue a judgment in favor of Plaintiffs against said Defendants in said sum of One Hundred Eighty Thousand Dollars, interest and other legal charges paid by the Estate of Bessie A. Whigham for the benefit of the aforesaid Defendants, and the costs of this proceeding.’ Plaintiff has advanced three legal theories upon which he claims entitlement to the demanded sum: fraud or overreaching in connection with the August, 1973, mortgage financing; breach of contract obligation with regard to the 1973 mortgage; liability on a suretyship basis for money paid on behalf of the defendants by James Whigham or the estate of Bessie A. Whigham. Based upon the testimony and evidence adduced at trial and on the applicable statutory and case law of Alabama, the Court is constrained to find that the plaintiff is not entitled to recover under any of these theories. The trial court then made the following conclusions:

“I. Plaintiff’s Theory of Fraudulent Conduct

“In his original complaint, the plaintiff alleged ‘that the Estate of Bessie A. Whig-ham, Deceased, has been fraudulently deprived of $180,000.00.’ At the pre-trial conference plaintiff’s counsel informed the Court that the plaintiff no longer alleged fraud on the part of the defendants. Therefore, in his amended complaint, the plaintiff struck the word ‘fraudulently’ from the above allegation. However, the ^same amended complaint contains the allegation that ‘while both of [the Whighams] were aged and infirm they were approached by Mr. Loyd Baker, one of the Defendants in this cause, and he persuaded them to agree that the mortgage indebtedness on said real property ... be refinanced. . ’ Moreover, counsel for plaintiff in the brief submitted in lieu of closing argument has contended that ‘[i]t is even probable that Defendants may be liable for a criminal prosecution for the acts that they have done in this matter as a conspiracy to defraud Plaintiffs, . . . and, certainly, in a Court of Equity they should not be relieved of their liability created by their own acts and conduct which amount to fraud.’ For these reasons, the Court understands the plaintiff as urging fraudulent deprivation of property in connection with the August, 1973, mortgage financing or some other species of fraud as a theory of recovery and therefore addresses this theory.

“Under the evidence presented at trial, this Court is compelled to find that the consent of the Whighams to the August 1973, mortgage financing was not obtained by means of fraud, misrepresentation, duress, coercion, overreaching or any other improper means and that no other act or omission on the part of the defendants during the entire course of their dealings with the Whighams relative to the August 1973, mortgage furnishes the basis for a claim of fraud, misrepresentation, duress, coercion, overreaching or other improper conduct on the part of the defendants. Accordingly, plaintiffs theory of fraudulent conduct as a basis of recovery cannot be sustained.

“II. Plaintiff’s Theory of Breach of Contract

“Plaintiff also advances the theory that the defendants breached a covenant contained in the lease by not maintaining the August, 1973 mortgage and are therefore liable to the plaintiff. In the Amendment to the Complaint, it is alleged that defendants had a duty to pay the installments of the August 15, 1973, mortgage pursuant to the terms of the March 20, 1963, lease, and that any refinancing of the mortgage was to be in accordance with the terms of the lease. While it is true that TraveLodge agreed in the lease to maintain the Life & Casualty mortgage and any refinancing of that mortgage, it appears from the evidence that the August, 1973 mortgage was not a refinancing of the Life and Casualty mortgage as defined in the lease. Under Article III of the lease, a refinancing to which Travelodge’s lease covenant to maintain the Life & Casualty mortgage applied was one (a) limited to the principal balance remaining due on the Life and Casualty mortgage, (b) payable on equal or lessor terms of interest than 614%, and (c) maturing not later than April 7, 1973. Article III specified that in the event of such a refinancing, the lessor could not be required to execute a new mortgage or to assign the lease as security. The August, 1973 mortgage loan (a) was in the amount of $180,000 rather than in the amount of the principal balance remaining due on the Life and Casualty mortgage ($58,722.70), (b) was at an interest rate of 9% rather than a rate equal to or less than a 614%, and (c) had a maturity date in 1983 rather than April 7, 1973. Moreover, the lessor agreed to and did in fact execute the new mortgage, in which the lessor’s interest in the lease was assigned as security. Under the facts, the August, 1973 mortgage financing was not a refinancing within the terms of the lease, and the lease therefore did not oblige Tra-veLodge to make payments on the August, 1973 mortgage debt. This Court concludes that none of the defendants breached any contractual obligation owed to the Whig-hams relative to the payment or financing of the August, 1973 mortgage, and therefore the plaintiff has no contractual basis for the relief he demands.

“HI. Plaintiff’s Theory of Suretyship

“Plaintiff has urged as an alternate theory of recovery that either the estate of Bessie Whigham, by suffering the foreclosure and sale of its property, or Plaintiff James Whigham, by paying the mortgage indebtedness to City Federal, paid a debt owed by the defendants, and therefore the defendants are liable to the estate of Bessie Whigham or to James Whigham on a sure-tyship basis. This theory is not supported by either the facts or the law.

“Throughout this case the plaintiff has sought to treat the estate of Bessie Whig-ham as a legal entity wholly separate and apart from James Whigham and to persuade this Court that the actions of James Whigham after the death of Bessie Whig-ham should not be attributed to the estate. This Court finds that such a separation of interests and actions cannot be made as a matter of fact and of law. On March 4, 1975, Bessie Whigham died, naming in her will her husband James Whigham as her sole devisee and legatee and as the executor of her estate. Under well-established principles of Alabama law, the title Bessie Whigham held to interests in the mortgaged property vested in her sole devisee, James Whigham, on March 4,1975. ‘On the death of a testatrix the title to and right to possession of land devised vests as of that date subject to certain statutory rights and duties of the executor, though the will is, of course, not probated until a later date.’ Whorton v. Snell, 226 Ala. 525, 526, 147 So. 602, 603 (1933); accord, Glasgow v. Blackwell, 285 Ala. 204, 207, 231 So.2d 80, 82 (1970); Whorton v. Moragne, 62 Ala. 201, 207-08 (1878); Hall’s Heirs v. Hall, 47 Ala. 290, 297 (1872). James Whigham therefore acquired the mortgagor’s interest of Bessie Whigham in the August, 1973 mortgage. When James Whigham purchased the mortgage from City Federal Savings and Loan Association, he acquired the mortgagee’s interest in the August, 1973 mortgage as an assignee of the original mortgagee. By the doctrine of merger, when a mortgagor acquires the note and mortgage from the mortgagee, the debt, and mortgage are extinguished. Barnett & Jackson v. McMillan, 176 Ala. 430, 58 So. 440 (1912). James Whigham’s interest as a mortgagor merged with his interest as a mortgagee and with respect to the mortgagor’s interest acquired from Bessie Whigham the mortgage was extinguished.

“No legal or actual distinction ever existed between the interests of James Whig-ham individually and the interests of James Whigham as the executor and sole beneficiary of the estate of Bessie Whigham. Accordingly, all of the acts and interests of James Whigham after March 4, 1975 — the purchase of the debt from City Federal, the institution of foreclosure proceedings, the purchase of the foreclosed interest at the sale — are to be considered the acts and interests of the estate of Bessie Whigham as well. Thus narrowed, the considerations ostensibly before the Court are whether James Whigham became a surety by his purchase of the indebtedness from City Federal and, if so, what rights he thereby obtained with respect to the defendants. Rather than belabor the former question, the Court will assume that James Whigham enjoyed the status of a surety, since it is clear that his rights were the same whether or not he is accorded surety status. Title 9, section 78 of the Code of Alabama provides:

“ ‘A surety who has paid his principal’s debt is entitled to a transfer of the original and collateral security which the creditor holds; he has all the rights to realize thereon and to reimburse himself to the same extent as the creditor might have done before the surety paid him, whether paid before or after judgment or decree. He shall be substituted for the creditor and subro-gated to all his rights and remedies; in effect, he shall be a purchaser of the debt and all its incidents.’ (emphasis supplied.)

As a surety, then James Whigham would enjoy the identical rights he possessed as assignee of the mortgage and mortgage debt.

“As assignee of the mortgage and mortgage debt, James Whigham had available two mutually exclusive remedies against the defendants. He could sue the joint venture as maker and TraveLodge as guarantor on the note and recover the sums owing or he could foreclose on the property secured by the mortgage and satisfy the debt in the foreclosure sale. Although his original complaint included what appeared to be a demand for relief under the former remedy, James Whigham subsequently elected the latter remedy and purchased for himself at the sale; in so doing he foreclosed any further claim against the defendants on the indebtedness:

“ ‘[WJhere a mortgagee or assignee of mortgage on land purchases the premises on foreclosure for a sum equal to the mortgage note or debt and lawful expenses and charges secured thereby, this action operates as an extinguishment of the notes secured by the mortgage, and the mortgagee or assignee of the mortgage cannot thereafter maintain an action on the note or debt.’

Oden v. King, 216 Ala. 504, 508-9, 113 So. 609, 612, (1927); see Osborne, Handbook on the Law of Mortgages § 333, at 698-99 (2d ed. 1970). Whether considered as surety or assignee of the debt and mortgage, James Whigham elected a remedy for the defendants’ indebtedness which preempts his present demand. The plaintiff is entitled to only one satisfaction of the debt, and he has already received it.

“The final observation that the Court must make with regard to the plaintiff’s demands for relief is that, holding aside the invalidity of his legal theories, the plaintiff has failed to establish that he suffered any injury by the acts or omissions of the defendants. Rather, the evidence shows that the circumstances plaintiff complains of are circumstances he intentionally and advisedly brought about himself and from which he has substantially benefitted. The plaintiff now holds title to the motel premises in fee, unencumbered by lessor mortgages. It is clear from the evidence that the securing of such title was the plaintiff’s objective from the time he acquired the note and mortgage from City Federal. As suggested above, the plaintiff could have recovered against the defendants by suing on the note. Such a recovery would have reimbursed the plaintiff for the money he expended to purchase the note and mortgage and would have entirely freed the motel property from mortgages; however, the property would have remained subject to TraveLodge’s leasehold interest for an additional thirty-six years at a fixed rental. The undisputed testimony at trial demonstrated the substantial value that the right to possess and operate the motel for the remaining leasehold period had. The testimony of Gene Dilmore, the expert appraiser that City Federal hired in 1973 to value the motel, was to the effect that, based on projected earnings, he had placed a value of approximately $345,000 on TraveLodge’s leasehold interest in August, 1973, and that its value as of May, 1975, the time of foreclosure, would have been in excess of $344,000. Moreover, defendant Loyd Baker testified that the joint venturers had invested at least $317,000 in the motel facility itself since 1963. While the plaintiff has at various points contended that the foreclosure was necessary to protect the plaintiff’s interests in the property, there was in fact no danger to the plaintiff’s interests after he had purchased the note and mortgage. His interests in the property could not have been lost by foreclosure since he was then the mortgagee; his investment in the purchase of the note and mortgage could be recouped in a suit on the note. The record clearly shows that self-interest rather than the compulsion of circumstance prompted the foreclosure. As plaintiff James Whig-ham himself testified at trial, he foreclosed the mortgage ‘to get rid of the Bakers and Travelodge,’ and the foreclosure had precisely that effect. Because the lessor’s and lessee’s interests were pledged as security for the August, 1973, mortgage, the lease was an interest subject to the mortgage and the very act of foreclosure operated to destroy it. See, e. g., First National Bank v. Welch, 222 Ala. 144, 132 So. 44 (1930). Moreover, even if the lease had survived the foreclosure, both the lessor’s and lessee’s interests would have vested in the plaintiff as purchaser at the foreclosure sale, and accordingly the lease would have been destroyed under the doctrine of merger. See, McMahan v. Jacoway, 105 Ala. 585, 17 So. 39 (1894); Otis v. McMillan & Sons, 70 Ala. 36 (1881); Martin, Bradley & Co. r. Searcy, 3 Stew. 50, 52 (1830). Following his foreclosure and purchase on May 9, 1975, plaintiff James Whigham assumed exclusive possession of the motel facility and has operated the motel himself since that date.

“The net result is that for an investment of $190,000 plaintiff James Whigham has obtained title to physical improvements totaling in excess of $300,000 and has obtained exclusive possession of that property, in which the present right to possession alone has been valued in excess of $344,000. The plaintiff has failed to show any injury at all, much less an injury occasioned by the defendants.

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT that judgment be and the same is hereby rendered in favor of the defendants and against the plaintiff. Costs taxed to the plaintiff.”

Whigham, by his statement of the issues presented for review, says the trial court committed reversible error in its findings of fact and misapplied the law to the facts. He says this is true in four particulars:

1. The evidence was undisputed that the Whighams were ill and aged, and by improper conduct upon the part of the defendants were induced to join in the August 1973 mortgage pledging the Whigham motel property together with their lease from TraveLodge, therefore, defendants are indebted to Whigham, or Mrs. Whigham’s estate.

2. The evidence was undisputed that the Whigham’s pledged their real property as security for the $180,000 loan to defendants; defendants did not pay the loan; defendants breached a contractual obligation to pay that loan, therefore, defendants are liable in damages for the breach.

3. That he, Whigham, as mortgagee, or assignee of same; or surety with rights of a mortgage, or assignee of same, when he purchased the motel premises on foreclosure for a sum equal to the mortgage indebtedness, plus lawful charges, secured by the mortgage it did not operate to extinguish the indebtedness and bar an action to recover it.

4. That he, Whigham, in this case is not limited to two mutually exclusive remedies, foreclosure or an action for recovery of the mortgage indebtedness, because his interest in the mortgaged property was insufficient to pay the indebtedness; in other words, there was a deficiency.

As to Whigham’s first assertion of error, we must state that not only was the evidence in dispute but the substantial weight of it was against the conclusion he would draw from it. Under this state of the record we cannot disagree with the trial court’s findings of fact in this regard nor can we say he misapplied the law to the facts. Rule 52(a), ARCP. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975)

Regarding Whigham’s contention that defendants breached a contractual obligation owed him, we observe there was a finding by the trial court that the August 1973 mortgage loan was not a refinancing within the purview of the terms of the lease. It follows, then, there was no contractual obligation breached when the mortgage indebtedness, secured by the August 1973 mortgage, was not paid by defendants. The evidence supports the trial court’s finding and we cannot disturb it. Eubanks, supra.

Although Whigham raises on appeal, for the first time, the point made in his fourth contention it is inherent in his third contention and adequately dealt with by the trial court under the judgment heading: “Plaintiff’s Theory of Suretyship.” The trial court’s reasoning and conclusions under that section of the judgment are sound and amply supported by the evidence and the authorities cited by the trial court. Whigham had mutually exclusive remedies under the facts in this case; and under those same facts it is clear there was no deficiency according to the evidence of the value of the real property and improvements together with the benefits accruing from termination of the lease and regaining possession of the property unencumbered either by the mortgage or lease.

AFFIRMED.

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


text:
    J. C. DU BOISE v. Burie BREWER, Jr., et al.
    SC 2423.
    Supreme Court of Alabama.
    Aug. 19, 1977.
    Champ Lyons, Jr. and Larry U. Sims, Mobile, for appellant.
    James C. Wood and Jonathan P. Gard-berg, Mobile, for appellees.
   EMBRY, Justice.

On this appeal we must decide the question of whether a prior judgment in an action for trespass to lands, and the cutting of timber therefrom, will bar a subsequent action between the same parties to establish a boundary line. Under the prior case law we are compelled to hold the former judgment is not a bar to the latter action; and, accordingly, we reverse and remand.

A background of the essential facts will aid in understanding the controversy involved on this appeal. In December 1972, Burie and Helen Brewer, appellees and defendants in the instant case, filed an action against J. C. Du Boise, appellant here, claiming damages for trespass to certain described land because of the cutting of timber from, and the removal of a fence on, those lands. Du Boise answered by general denial, and thereafter, a jury verdict was rendered in favor of the Brewers for $2,000.

On August 11,1976, Du Boise commenced this action against the Brewers for a determination of a boundary line between their respective lands. The complaint charges there is an area in dispute consisting of a strip of land which is seventy-eight (78') feet in width which belongs to Du Boise and is also claimed by the Brewers without title or the right of possession.

The Brewers responded by filing a motion to dismiss, or in the alternative for summary judgment, based on Du Boise’s failure to assert this claim as a compulsory counterclaim, pursuant to Rule 13(a) of the Alabama Rules of Civil Procedure, in the former action. From the trial court’s order, dismissing this action with prejudice, Du Boise appeals.

In brief, the Brewers set out the same argument that was the basis of their motion to dismiss in the trial court. They contend the present action to establish a boundary line involving the same property flows from the same transaction and subject matter as their prior suit and should have been asserted as a compulsory counterclaim under Rules 13(a) and 13(f), ARCP.

It should be noted that ARCP became effective shortly after Du Boise filed his answer in the first suit. The Brewers rely on this fact to support their contention that Du Boise’s present action is barred by his failure to raise it in the earlier trial.

At first glance, it seems the applicability of Rule 13(a) will be dispositive of this appeal. However, after a careful review of the case law in this area, we hold the present action not barred and there is no need to address the issue of whether ARCP governed this proceeding.

In support of this holding is Dollar v. McKinney, 272 Ala. 667, 133 So.2d 673 (1961), where the factual setting is quite similar to the present case. There, we held that a judgment in favor of the plaintiff in a prior proceeding at law for money damages for trespass arising from the cutting of timber did not preclude a subsequent proceeding against that party, brought by the defending party in the prior action, to establish a boundary line.

In Dollar, we conceded that title and boundary could not be determined in an action for cutting timber. We said:

“ * * * In actions for trespass to realty and trespass to personalty, the gist of the action is the injury to the plaintiff’s possession, and possession, whether founded on a good or bad title, will support the action against a wrongdoer or stranger * * * ”

Further support is found in Alexander v. Smith, 203 Ala. 9, 81 So. 677 (1919), an action for the statutory penalty for cutting timber. This court commented:

“It is needless to say that this judgment is no bar to a real action or one in the nature thereof to try titles between these two claimants as to this strip of land.”

From these decisions, it is clear that a prior action for cutting timber, filed before adoption of ARCP, does not preclude this subsequent action to determine a boundary line. We conclude that, in this case, Du Boise’s claim is not barred by the Brewers’ prior judgment.

We do not address the applicability of ARCP to situations such as these in actions filed after the effective date of ARCP.

In the interest of bench and bar, we make this comment about ARCP. Rule 1(c) states: “These rules shall be construed to secure the just, speedy and inexpensive determination of every action.” In adhering to this mandate, it should be remembered that the procedural differences between law and equity have been abolished and there is only one form of action, known as a “civil action,” in which all claims between the parties should be litigated. This prevents a multiplicity of actions between the same parties which places a burden upon our judicial system.

For the reasons stated in this opinion, we reverse the judgment of dismissal and remand the action.

REVERSED AND REMANDED.

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