text:
    Nathan GRAVER v. ZEEMAN ENTERPRISES, INC. and Barry Manufacturing Company.
    No. 9566.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.

      Montgomery, Barnett, Brown & Read, Kenneth V. Faherty, Edward A. Rodrigue, Jr., New Orleans, for defendants-appellants.
    Jacob L. Karno, Metairie, Robert A. Ca-plan, New Orleans, for plaintiff-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff-appellee, Nathan Graver, instituted this workmen’s compensation suit against his former employer, Barry Manufacturing Co., and Zeeman Enterprises, Inc., of which Barry is a subsidiary, on December 23, 1976. He sought total and permanent disability benefits under the Louisiana Workmen’s Compensation Act as a result of a bilateral inguinal hernia suffered on December 24, 1975, for which surgical repair was performed on May 10, 1976. In addition, plaintiff sought a total of $3,522.80 in medical expenses.

Defendants filed a motion for summary judgment based on plaintiff’s failure to comply with R.S. 23:1221(4)(q) according to the allegations of his own petition. The trial judge denied the summary judgment.

The case was then heard on the merits, and judgment was rendered in favor of plaintiff, ordering defendants Barry Manufacturing and Zeeman Enterprises to pay workmen’s compensation benefits to plaintiff at the rate of $85.00 per week for 20 weeks (from May 12, 1976 to September 30, 1976). The award also included $3,261.00 in medical expenses and $300.00 in expert witness fees. Defendants Barry Manufacturing and Zeeman Enterprises have appealed from that judgment.

Defendants allege error on the part of the trial court in finding that plaintiff had complied with the reporting requirements for inguinal hernia, found in R.S. 23:1221(4)(q)(i). That statute reads as follows:

“In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter.”

Plaintiff was employed at Barry Manufacturing as a salesman of men’s clothing. He alleges that he injured himself (“felt a spring”) while attempting to lift two boxes full of clothing on December 24, 1975.

According to plaintiff’s petition, and his testimony in deposition and at trial, he felt pain and noticed a mass in the inguinal area of his groin. However, he testified that he did not realize the severity of his injury and thought it was just a strain or sprain that would go away by itself. Consequently, he did not report the incident to his employer or seek medical attention. Over the next two months, the masses became larger and more painful, so that on March 10, 1976 he finally consulted Dr. Thornhill, who diagnosed bilateral inguinal hernias and recommended surgery.

Upon learning this diagnosis, the plaintiff testified, he informed Mr. Cecil Bagelman at work the next day. The manager, Mr. Biller, was not in that day, but Graver assumed Mr. Bagelman would inform him. Although Mr. Biller testified that Mr. Ba-gelman had no supervisory authority, and was merely another salesman, apparently Bagelman gave the impression of “being in charge” when Biller was out. Mr. Bagel-man testified that he did not recall Graver informing him of the hernia until sometime in April, after Graver had been fired because of a disagreement with Biller. He only remembered Graver coming by his house to tell him that he was suing Barry Manufacturing and wanted him to be a witness.

After the surgical repair, plaintiff Graver had considerable trouble with pain and swelling in the scar areas. In addition, plaintiff complained of numbness in the area until almost one year after surgery. Plaintiff was hospitalized in July 1976 for a non-disabling kidney problem, but was hospitalized again in September for lung cancer. Dr. Blitz testified that this malignancy and general poor health would prevent Graver from returning to work. Consequently, this September date was the date used by the trial judge for termination of disability benefits.

The trial court’s findings of fact regarding the occurrence of a work-related injury and the reasonableness of Graver’s reporting to Mr. Bagelman are not manifestly erroneous, and thus should not be disturbed. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Defendants’ major contentions are that plaintiff failed to promptly report his injury to his employer and clearly did not seek medical attention within thirty days of the injury. In support of their position, defendants cite the case of Womack v. Pickett, 283 So.2d 852 (La.App. 2nd Cir. 1973), writ refused Nov. 16, 1973, wherein the Second Circuit Court of Appeal held that an employee, by not reporting the injury to the employer until five weeks after it had occurred, had failed to meet the statutory requirement that such injuries be “reported promptly to the employer,” and could not recover.

However, the Womack case, to begin with, was a situation opposite to that of the instant case. There the trial court had found against the plaintiff and, therefore, in reaching its conclusion the Second Circuit necessarily was giving weight to the trial court’s discretion as a finder of fact. In the instant case, the trial court had found in favor of the plaintiff so that, applying here the same established test for factual review, that inferential contributing rationale of the Womack case constitutes at the outset some support for the plaintiff Graver’s position.

Moreover, the Womack case — which appellants cite — provides additional support for the plaintiff in the instant case. The court therein stated, “What constitutes prompt reporting of an accident is a matter which must be determined under the facts of each particular case.” 283 So.2d at 855.

Even further support for Graver, with particular reference to an inguinal hernia, is found in the following additional language from Womack: “The requirements of Section 1221(4)(q)(i) are not limitations of time in the sense of prescription or per-emption, but are standards of proof or evi-dentiary rules . . . [Italics supplied.] 283 So.2d at 856.

In the instant case, almost ten weeks passed between the date the injury occurred and the time plaintiff sought medical attention and reported the diagnosis to Mr. Bagelman. Plaintiff contends that he was not aware that he had sustained a hernia or other serious injury, but thought that the “strain” would disappear on its own. It should be noted at this juncture that plaintiff was a 67-year-old man with only a seventh-grade education. It is reasonable that plaintiff would not realize he had a hernia or other permanent or serious problem.

This would appear to vitiate plaintiff’s delay, particularly under the doctrine that the “accident” and resulting pain itself are not necessarily determinative. Rather, in such cases, the applicable time is when it becomes apparent to the employee or to his employer that he is unable to perform his work. Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952); Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956); Bourgeois v. Brown & Root, Inc., 303 So.2d 217 (La.App. 4th Cir. 1974); Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir. 1970); Lindsey v. Hartford Accident & Indemnity Company, 175 So.2d 831 (La.App. 3rd Cir. 1965).

The plaintiff should not be penalized for trying to carry out the duties of his employment for as long as he could. He is not obligated to diagnose and determine the seriousness of his injuries. The duty to report promptly could not arise until he was aware or should have been aware of the nature and cause of his injury.

It is, of course, fundamental that all provisions of the Workmen’s Compensation Act are to be construed liberally in favor of the claimant. Applying such a construction in this case, and giving due weight to the trial court’s discretion, it is our conclusion that the disposition of this case by the court below was proper. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    INDUSTRIALEASE AUTOMATED & SCIENTIFIC EQUIPMENT CORPORATION v. SENTINAL PIPE SERVICES, INC. and Kent A. Russell.
    No. 9625.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearings Denied Oct. 19, 1978.

      Law Offices of Louis R. Koerner, Jr., Terry A. Bell, New Orleans, for plaintiff-appellee.
    McGlinchey, Stafford, Mintz & Hoffman, Joseph W. Rausch, New Orleans, for defendants-appellants.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment rendered against them for $5,051.33 plus attorney’s fees of $2,000 in a suit arising out of a contract of lease confected on May 10, 1973.

Sentinal Pipe Services, Inc., defendant, was the lessee from plaintiff of waterjet equipment to be used in its sewer cleaning operations. The lease provided for monthly payments of $280.17 for a total of 48 months. The contract consisted of a “Short Form Lease” and a separate “Agreement for Leasing.” On May 7 an Agreement of Guaranty as to the lease was signed by defendant Kent A. Russell, Sentinal’s president and only stockholder in his individual capacity.

On April 9, 1974, the parties executed identical forms for the lease of a truck. However, this lease, unlike the first, was accompanied by an option for Sentinal to purchase the truck for the price of $1.00 at the termination of the lease.

From as early as September, 1974, Senti-nal frequently failed to make monthly payments on the water jet lease when due. On at least one such occasion plaintiff had threatened to invoke the default provisions of the lease. Finally, on November 16, 1976, plaintiff demanded payment of rent for the months of September through November. When this demand was ignored the instant suit followed for an amount consisting of past due and accelerated future rent plus the “termination value.”

In answer to the suit defendants alleged that plaintiff’s representative had agreed to certain terms outside of the written documents, including a provision that the rental of the waterjet “would be in connection with the rental of a pump truck.” Defendant also claimed a setoff of $5,000 against plaintiff’s claim based on the following allegations:

“10) As a result of plaintiffs’ breach of the lease of the pump truck, defendants are entitled to a credit in excess of Five Thousand ($5,000.00) Dollars for equity it had earned in the lease with plaintiffs of the pump truck. Since defendant had a right to sell the aforementioned pump truck under the terms of its lease and by plaintiffs seizure of said truck, defendants suffered loss and is entitled to a credit in excess of Five Thousand ($5,000.00) Dollars against any potential liability prayed for herein.”

At the trial evidence of the truck lease and the circumstances surrounding plaintiff’s repossession of the vehicle was admitted over plaintiff’s objection. This evidence, while sketchy, was to the following effect:

On October 15, 1976, plaintiff demanded payment of the truck rent for the months of September and October and granted defendants ten days for compliance before plaintiff would invoke the default provisions of the lease. On October 22, plaintiff learned that the truck had been virtually abandoned by defendants, was being vandalized, had sustained damage and some of its parts stolen. Plaintiff had the truck towed to a gas station and sometime later sold the truck for $6500.

On the other hand, defendant Russell testified that he had made overtures to plaintiff to terminate both leases and to purchase the truck and equipment. However, plaintiff’s representative quoted to Russell a price of over $10,000, which he thought to be twice as much as the price fixed in the agreements.

Throughout the proceedings plaintiff has constantly maintained that the evidence concerning the truck and the lease thereof is wholly irrelevant. It contends that the water jet lease on which it brought this suit is the only contract before the court and defendants are not entitled to have the other matter considered in these proceedings.

Defendants’ evidence of the truck and other lease was admissible and was properly pleaded in their answer against plaintiff’s claim. See LSA-C.C.P. Art. 1062, Comment (b) thereto and Art. 1005. Thus, we have resolved to consider the merits of their case for the setoff, but before doing so will address what defendants have designated as their first argument, to wit, that plaintiff’s custom of withdrawing its requests for prompt payment constituted a waiver of its right to demand strict compliance with the payment schedule.

The lease specifically provides that no express or implied waiver of any default, including acceptance of rent, is to be construed as a waiver of any rights of the lessor or as an extension or enlargement of lessee’s rights under the lease. Moreover, correspondence introduced by plaintiff shows that payment was demanded on each instance when the account was in arrears. Dispositive of defendants’ position is the following from Rex Credit Co. v. Kirsch, 4 So.2d 797 (La.App. Orl.1941):

“It thus appears that there are two lines of cases, one holding that a stipulation providing for acceleration or for some other such harsh right is waived where the holder of the note, or the obligee in a contract, permits a departure from the strict provisions of the contract, and the other line of cases which does not seem to be in conflict, which holds that there is no waiver if the obligor or the maker of the note is put on notice in advance that the granting of such indulgence or delays will not be considered as a waiver of the right to insist upon the strict enforcement of the stipulation of the note or contract. “. . . Even those cases which hold that, by the course of conduct, there is established a waiver of the right to insist on the strict terms of the note or of the contract cannot be extended so as to include a case in which the indulgences were never acquiesced in, and were forced from the other party over his protest.”

Returning to defendants’ argument that they are entitled to a setoff for the price plaintiff derived from the sale of the truck, we have resolved that they failed to carry their burden of proof to support this affirmative defense.

This truck was in Miami, Florida, when it was repossessed by plaintiff. While defendant Russell held to a belief that its condition was not as bad as plaintiff said it was, Russell had not seen it. The only first-hand evidence was in answer of plaintiff’s witnesses to interrogatories propounded to them, and while it is sketchy it is uncontradicted. The truck had been abandoned.

Defendants rely on the option to purchase letter given Sentinal by plaintiff when the truck lease was confected. This provided as follows:

“Provided that you shall have made all payments due under the subject lease and provided, further, that there is no default in compliance with any of the terms or conditions thereof, you shall have the option to purchase the equipment covered by said lease in its then condition and at its then location at the terminal date of said lease.
“This option shall be exercised by delivery of written notice to us at least 30 days prior to the date as of which purchase is to be effected, together with the full net cash price of said equipment as set forth below:
The net cash purchase price will be $1.00 plus tax.”

Defendants contend that plaintiff somehow deprived them of the right to purchase this, truck for one dollar by repossessing and selling the truck. We are unable to follow this argument.

The lease was not scheduled to expire until March, 1977. As of October, 1976, Sentinal was already in default for nonpayment of the rent as well as failure to maintain and store the truck. Thus, the right to purchase was already forfeited by Sentinal. Furthermore, to suggest that plaintiff was to take no action under the circumstances to preserve its, not Sentinal’s truck is absurd. We find no provision in the lease documents which prevented plaintiff from taking this action and are cited no legal authority which would prohibit it.

In effect, we have concluded that defendants failed to prove their affirmative defense of setoff. Since there is no dispute about the principal amount of plaintiff’s claim that part of the judgment for $5,051.33 will be affirmed.

However, we have concluded that defendants are correct in their final contention that plaintiff is not entitled to attorney’s fees. The provision for attorney’s fees incurred by reasons of lessee’s failure to comply with the lease is found within the guaranty, which is an accessory contract. The only provisions of the lease agreement which deal with lessee’s responsibility for attorney’s fees are in those dealing with expenses incurred relative to a sale. The extent of the suretyship obligation is set out in LSA-R.C.C. Art. 3037, as follows:

“The suretyship cannot exceed what may be due by the debtor, nor be contracted under more onerous conditions.
“It may be contracted for a part of the debt only, or under more favorable conditions.
“The suretyship which exceeds the debt or which is contracted under more onerous conditions shall be void, but shall be reduced to the conditions of the principal obligation.”

When the condition of stipulating attorney’s fees in the accessory guaranty agreement is more onerous than the conditions of the principal obligation it is not enforceable. Bonura v. Christiana Bros. Poultry Co. of Gretna, 336 So.2d 881 (La.App. 4th Cir. 1976).

Accordingly, the judgment appealed from is amended to disallow and delete the award of $2,000 for attorney’s fees. In all other respects the judgment is affirmed.

AMENDED AND AFFIRMED.


author: GUIDRY, Judge.

text:
    Dorothy WHITE, Plaintiff-Appellant, v. RADFORD BUICK, INC., et al., Defendants-Appellees.
    No. 6824.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 15, 1978.
    Raggio, Farrar, Cappel & Chozen, Thomas L. Raggio and William L. McLeod, Jr., Lake Charles, for defendants-appellees.
    Woodley & Fenet, Robert W. Fenet, Lake Charles, for plaintiff-appellant.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

MOTION TO REMAND

The defendants-appellees, Radford Buick, Inc. and General Motors Corporation, move to remand this suit to the trial court to enable them to traverse the right of the appellant, Dorothy White, to proceed with her appeal in forma pauperis. The motion is unopposed. We remand.

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

Judgment was rendered in this case on May 22, 1978 in favor of Radford Buick, Inc. and General Motors Corporation and against the plaintiff-appellant, Dorothy White. On July 12, 1978, the appellant, Dorothy White, timely moved for an appeal in forma pauperis, which request was granted by the trial court on that same date. The appellant’s original suit was not filed in forma pauperis, nor had the appellant previously sought a pauper order prior to the time she moved for her appeal.

The jurisprudence is well settled that where a devolutive appeal has been taken in forma pauperis without allowing the appel-lee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the appellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir. 1962).

Under the facts of this case, the appellee has had no opportunity to traverse in the district court, and thus is clearly entitled to an opportunity to do so. Ross v. Hatchett, 247 So.2d 399 (La.App. 3rd Cir. 1971); Darby v. Travelers Insurance Company, 272 So.2d 798 (La.App. 3rd Cir. 1973); Shepard v. Shepard, 349 So.2d 1026 (La.App. 3rd Cir. 1977).

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

APPEAL REMANDED.


author: BOWLING, Justice,

text:
    Jimmy VOYLES v. STATE of Mississippi.
    No. 50648.
    Supreme Court of Mississippi.
    Sept. 20, 1978.

      David R. Sparks, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   BOWLING, Justice,

for the Court:

Appellant, Jimmy Voyles, was indicted and tried in the Circuit Court of Lee County for the crime of capital murder of one Bernice Griggs. The trial was bifurcated as to guilt and sentence under the guidelines set out by this Court in Jackson v. State, 337 So.2d 1242 (Miss.1976), as codified by legislative enactments set out in Mississippi Code Annotated sections 99-19-101 and 99-19-103 (1977 Supp.). The guilty phase of the trial resulted in a unanimous jury verdict convicting appellant of capital murder. The sentence phase of the trial was conducted before the same jury which returned a verdict of death. The procedure in this phase of the trial will hereinafter be discussed in more detail.

Under the requirements for appeal and review by this Court of all capital murder convictions, the Court has studied carefully every aspect of the case — whether or not such were discussed in the briefs submitted. Bell v. State, 360 So.2d 1206 (Miss.1978); Irving v. State, 361 So.2d 1360 decided August 2, 1978; Washington v. State, 361 So.2d 61 decided July 12, 1978. The first requirement is that the Court make a meticulous examination of the evidence presented to the jury. This has been done and a resume of that evidence follows.

Bernice Griggs disappeared on March 12, 1976. Prior to and at that time she was living with her twenty-year-old daughter, Glenda Phillips, near Amory, Mississippi. Other inhabitants of that place of abode were the daughter’s husband and their small child. Mrs. Griggs was forty years old. The testimony of the daughter revealed that appellant, age thirty, and Mrs. Griggs had been dating for approximately two months prior to the time of Mrs. Griggs’ disappearance.

Witness Danny Lee Dunaway, a resident of Saltillo, testified that on July 13 or 14, 1976, he and his brother Guy were in a boat going down stream in the creek known as “Buey Bottom.” They were hunting turtles. About a mile down stream from the Buey Bottom Creek bridge, they saw a log and debris in the water and saw what appeared to be a hand sticking up by the log. This was verified when they reached the scene.

The next witness, Douglas West, a deputy sheriff, testified that he received a call pertaining to the find in the creek. He, the sheriff, and other deputies promptly went to the scene. They saw the hand and on investigation found what appeared to be the remains of a body tangled in the debris in the creek. They secured a wool blanket and placed it down in the water under the body remains, lifted all from the water in the blanket, and laid the entire skeletal remains on the ground near the edge of the creek. Photographs were made at that time, prior to further moving of the remains. Four photographs were introduced in evidence as exhibits before the jury. Witness West pointed out in the photographs the remains of a jacket or blouse that was around the rib cage of the disintegrated body and skeleton. This cloth later was removed and retained for evidence and was introduced into evidence by witness West.

Glenda Phillips, the daughter of Mrs. Griggs, described the meeting of appellant and her mother about two months prior to March 12,1976. The two people dated during that period of time. She testified that appellant and his nephew, Hoyt Mayo arrived at her home about seven o’clock A.M. on March 12. The mother carried the daughter to her place of work and the next time the daughter saw Mrs. Griggs was that afternoon about five o’clock when she returned home. Shortly thereafter, the appellant, Hoyt Mayo and Mrs. Griggs left the home in Mrs. Griggs’ car. This was .a brown Malibu vehicle, whereas prior to that date Mrs. Griggs owned a blue Ford vehicle. According to Mrs. Phillips, her mother was going to visit another daughter.

The next time Mrs. Phillips saw or heard from any of the three persons was Sunday, March 14, 1976, when appellant and Hoyt Mayo came to her home. She asked them where her mother was, and was told by appellant that Mrs. Griggs, while at a truck stop, had left for Texas with a man in a truck; and that he (Voyles) had put her clothes and other possessions in the truck before she left. Mrs. Griggs, according to Voyles, had told him he would be hearing from her.

About two weeks later, Voyles came back to Mrs. Phillips’ home. He told her that he was keeping Mrs. Griggs’ car at her request. He further told the daughter that he had received a letter from her mother and would bring it the next time he came by.

Mrs. Phillips identified the remains of the clothing taken from the body hereinbefore described. Her positive testimony was that this was the remains of a “polka dot” jacket that she actually owned, but it was being worn by her mother on March 12, when she left home with appellant and Mayo.

Mrs. Phillips further testified that the only time she heard her mother and appellant arguing was on the night of March 11. The argument was the result of Mrs. Griggs’ refusal to allow appellant to go to his place of abode in her car. Mrs. Griggs was crying while they were in the kitchen, at which time appellant “just drew back his fists, but he never did hit her or nothing.” The argument ended when appellant left the Phillips’ home walking.

Witness J. C. Holley was employed by Crowder Chevrolet Company in Columbus, Mississippi. He testified that on March 12, 1976, Mrs. Griggs, in the company of two men, came to the place of business and the visit resulted in Mrs. Griggs trading cars. She bought a brown Malibu vehicle and traded in a blue Ford. The vehicle was financed through General Motors Acceptance Corporation. Mr. Holley had no further connection with the car for two or three months after its purchase when he learned that it had been repossessed for nonpayment of the purchase price installments. Holley testified that Mrs. Griggs purchased insurance on the vehicle and listed on the application that the appellant would drive the car approximately twenty-five percent of the time.

Witness Nolan Nanney was in the automobile business in Tupelo, and had been for about sixteen years. He had known appellant for a long time. On June 8,1976, at an automobile auction in Baldwyn, the witness was there to purchase vehicles when he found that appellant was at the auction offering for sale a 1974 brown Malibu automobile, for which he wanted the sum of $2500. Nanney offered $2300 and the offer was accepted by appellant, who reported to the witness that the car was owned by him. A draft was issued by Nanney with the condition thereon that acceptance would be completed only if proper title papers were attached thereto. He testified that upon presentation of the draft there were no title papers and therefore he did not accept it and consequently rescinded the proposed sale. The witness identified the serial number of the vehicle as the same serial number previously testified to by the witness Holley. Nanney testified that Voyles told him he had secured the car from his brother-in-law in Memphis.

Dr. Edwin Allen Raines, a pathologist, testified about examining the remains of the body found in the creek. He could not give a cause of death because of the extent of deterioration. He testified that several bones were broken and that the remains were of a human, “probably” of the female species.

Witness George Bobo was employed by General Motors Acceptance Corporation and had been acquainted with appellant for several years. He had had a conversation with appellant around the first of June, 1976, after having ascertained that the appellant was with Mrs. Griggs when the vehicle was purchased. Shortly thereafter, the witness contacted appellant at his place of employment, and asked him if he had knowledge of the location of Mrs. Griggs’ car. Appellant told him that he knew where Mrs. Griggs was in Texas and that he would get in touch with her about getting the car back to Mississippi. Later, the witness had another conversation with appellant, who agreed to go to Texas and return the car for the sum of $150. Appellant did not indicate to the witness that he already had possession of the car in question.

Witness Hoyt Mayo is the nephew of appellant, and had reached eighteen years of age on February 18, 1976. Mayo testified, in regard to the trip to buy the brown Malibu car on March 12, 1976, that he, the appellant Voyles and Mrs. Griggs’ young grandchild accompanied Mrs. Griggs that day. He had only seen Mrs. Griggs a couple of times prior to that day. Continuing, Mayo testified that Mrs. Griggs traded her Ford vehicle for the brown Malibu Classic vehicle and that when they left the dealership, Voyles was driving. Afterwards they all proceeded to the Griggs’ home near Amory, and upon arriving, Mrs. Griggs left in the car and was gone about twenty-five or thirty minutes. Appellant and the witness remained at the Phillips’ home during that time. Upon Mrs. Griggs’ return, she packed some clothes and said she was going to see another daughter who was in a training school in Columbus at that time. With Voyles driving, these three people, Voyles, Mrs. Griggs and Mayo, first went to Amory. There the appellant and Mrs. Griggs went into a store to buy something for the daughter Mrs. Griggs was going to visit. The next stop, according to Mayo, was at a service station to fill the car with gasoline. They then went to Tupelo where they stopped at another service station to check the oil in the car. Mayo testified that he went in the restroom and while he was there appellant came in and said he was going to “Buey Bottom to whip this woman.” Mayo stated he then asked appellant to take him somewhere and let him out. After all had returned to the car, the appellant told Mrs. Griggs he was going to Buey Bottom to take Mayo to see his sister. With the appellant driving the vehicle, no stops were thereafter made until they reached Buey Bottom. The appellant then stopped the car at a bridge which spanned the creek located in this area. According to Mayo, appellant then asked Mrs. Griggs to get out of the car and when she did appellant began beating her with his fists. Mrs. Griggs was beaten until she was unconscious. Before losing consciousness, Mayo stated that she was calling for help, but when he got out of the car to assist her, appellant told him, “If you don’t leave me alone, I’ll kill you too. You don’t mean no more to me than she does.”

Mayo then testified that Voyles got in the car, started the motor, and backed it up over Mrs. Griggs’ body; that he then went down the road, turned around, and then drove forward over her body. Further, Mayo stated that Voyles then told Mayo to roll the body off in the creek. When Mayo refused, Voyles got out of the car, taking the keys with him, and threw the body into the creek himself. Voyles then drove the car down the road about a mile, stopped the car, and took approximately $90 from Mrs. Griggs’ purse, which was still in the car. Voyles and Mayo then went to Tupelo and attended a wrestling match and according to Mayo, appellant reiterated that he would kill him if he told anyone about what occurred. A conversation took place as to whether or not they should return to the scene of the incident and secure Mrs. Griggs' false teeth that had fallen in the roadway. Voyles then stated that he would not do so, as cars passing over the road would run over them.

According to Mayo, about a week after the incident, he went with the appellant to the Griggs’ home to secure some of the clothes that Voyles had previously left there. He related the conversation between Mrs. Phillips and appellant, wherein she asked if he had heard from her mother. Appellant told her that he had received a letter and that she was in Texas, and that such letter was at home but he would bring it to her later.

On direct examination, Mayo was asked, “Did Jimmy Voyles tell you why he did this?” His response was, “Yes, sir, he killed the woman — he told me before that he had killed the woman because she wouldn’t put the car in his name.”

On cross-examination, the attorney for appellant attempted to elicit from Mayo that he was the one who really killed Mrs. Griggs. Mayo denied appellant’s “version” of what happened, but did admit he was a co-indictee for the crime.

The state rested after Mayo’s testimony. Appellant Voyles then testified. He was first asked if he had ever been convicted of a crime. He replied in the affirmative, first stating that it was for armed robbery, and then changed his answer to a conviction of burglary. Actually, he had pled guilty to a second charge of burglary. He then related the circumstances whereupon he met Mrs. Griggs, and stated that he dated Mrs. Griggs for about two and a half months. Voyles then described the trip on March 12 when Mrs. Griggs traded cars. Voyles then related facts pertaining to the trip later that day to take Mrs. Griggs to see her other daughter. He stated that during the trip all three of them consumed alcoholic beverages. His testimony was that during the stop at the service station, Mayo went to the restroom and called him to go with him, whereupon Mayo stated he was going to kill “Bernice” and rob her. According to appellant, he tried to convince Mayo not to take that action. With the appellant driving, they then left the service station, and drove to Buey Bottom, telling Mrs. Griggs that he was taking Mayo to see his sister. When they reached the creek bridge, Mayo told him to stop the vehicle on the bridge, which he did. According to appellant, Mayo then told Mrs. Griggs to get out of the car, and after she did, Mayo began beating her with his fists and a “small lug wrench.” According to Voyles, he told Mayo, “Hoyt, there ain’t no use in that right there,” and Mayo replied, “Jimmy, get back — if you don’t I’ll give you the same thing.” Voyles then testified that Mayo told him to start the car and back up, and that when he did he accidentally backed over Mrs. Griggs’ body. Mayo then threw Mrs. Griggs’ body from the bridge into the water.

Thereafter, Voyles stated that he then drove the car away from the bridge and that Mayo then proceeded to take $96 from Mrs. Griggs’ purse. (This purse was later discarded in a nearby garbage container). Voyles further stated that Mayo admonished him not to say anything about the matter or “I’ll give you the same thing.”

According to Voyles, Mayo and Mrs. Griggs “argued a lot” before the day of her death. His only explanation for such arguments was that Mrs. Griggs did not want Mayo along when she and Voyles were together.

On cross-examination, the appellant reiterated the same facts, contending that Mayo was the one who killed Mrs. Griggs and that the killing was over his protest. He denied that he, at any time, either planned or attempted to rob and kill Mrs. Griggs. The defense introduced one other witness, John Brown, manager of Home Credit Company of Tupelo. He testified that appellant had an account with his company and that he knew both appellant and Hoyt Mayo; that he had gone to the place where Voyles was employed and there had seen Mayo standing by a brown 1975 Malibu vehicle. Brown testified that Mayo told him that he owned the car. On cross-examination, Brown stated that he had seen appellant driving the car but had never seen Mayo driving it.

After receiving instructions the jury retired to consider the guilt phase of the trial and returned into court the following verdict:

“We, the jury, find the defendant guilty of capital murder.”

The jury was then instructed as to the sentencing phase of the bifurcated trial, and after receiving instructions and hearing arguments of attorneys, returned into court the following verdict (which was written in pen and signed by the foreman):

We, the jury, unanimously find that the aggravating circumstances of (1) the capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy or the unlawful use or detonation of a bomb or explosive device. (2) The capital offense was committed for pecuniary gain; and (3) the capital offense was especially heinous, atrocious and cruel, are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we unanimously find the defendant should suffer death.

After judgment was entered on the findings of the jury, appellant, through his attorney, filed a motion for a new trial, which motion was overruled.

On this appeal, appellant propounds nine assignments of error. They are:

1. The trial court erred in overruling defendant’s motion for a new trial.

2. The trial court erred in allowing the jury to view photographs of a badly decomposed body (alleged to be that of the victim) in that such evidence tended to prejudice the defendant in receiving a fair, impartial and unbiased trial.

3. The trial court erred in allowing the introduction of items into evidence by the state when it had failed to comply with a court order requiring the state to submit such evidence to the defendant prior to the deadline as set out by the court.

4. The trial court erred in refusing to grant the defendant’s motion for a directed verdict or peremptory instruction when the state failed to prove essential elements of the charge as stated in the indictment.

5. The trial court erred in refusing to grant the defendant’s motion for a directed verdict or peremptory instruction after the state had failed to prove corpus delicti.

6. The trial court erred in limiting counsel’s closing argument to twenty minutes.

7. The trial court erred in limiting the defendant to only six instructions in a cápi-tal case.

8. The trial court erred in refusing to grant defendant’s Instruction No. 42.

9.Reversible error occurred in the sentencing stage of appellant’s trial after the state had failed to prove any aggravating circumstances, where the jury, in rendering its verdict, stated that its decision to impose the penalty of death was reached after considering the mitigating and aggravating circumstances of the case surrounding the crime with which the appellant was charged.

PROPOSITION 1. The alleged errors of appellant here are all covered under the succeeding allegations of error and shall be discussed therein.

PROPOSITION 2. Appellant contends that the introduction of four photographs made by the law enforcement officials of the remains of the body taken from the creek were inflammatory and prejudicial and should not have been admitted.

As hereinbefore related, the testimony of the deputy sheriff, who took the pictures, was that the pictures were made with the remains exactly as they were lifted from the water — in the blanket and placed on the ground. In addition to this, each photograph shows the article of clothing that was partially connected to the remains. This clothing was subsequently identified and retained as evidence. Mrs. Griggs’ daughter, Glenda Phillips, testified positively that the article of clothing shown in the pictures and introduced in evidence at the trial was her jacket, that the jacket was being worn by her mother at the time she last saw her on March 12, 1976.

This Court has held that in considering the competency, relevancy and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose. Irving v. State, 228 So.2d 266 (Miss.1969); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Coleman v. State, 218 Miss. 246, 67 So.2d 304 (1953). We observe that upon presentation of the photographs by the state, appellant’s attorney did not object to their admissibility on the grounds that they were inflammatory and prejudicial against the accused. This Court has held in many cases that alleged error will not be considered unless objections thereto are made at the trial level in order to give the trial judge an opportunity to rule thereon. However, we do not reach that decision here, because due to the nature of the case, the Court is obligated to review all evidence. In the first place, we do not find that the photographs are such that a jury would be influenced or prejudiced by an inspection of what is shown. They merely confirm the testimony of witness West as to the contents of the blanket immediately after taking them from the water. In the second place, each picture shows a positive item of evidence necessary to establish the identity of the body and each photograph is an important piece of affirmative evidence. Hence, the court’s allowing such photographs to be admitted into evidence cannot be reversible error in this case.

PROPOSITION 3. Appellant contends that he was prejudiced by the failure of the state to produce tangible state’s evidence for inspection by his attorney prior to the actual trial. Admittedly, the proper motion was made and an order was entered on April 25, 1977, sustaining the motion and directing the state to produce such evidence by May 3,1977. For some reason not clear from the record, the items were not presented by that date. However, the court extended this original order until May 30, 1977, by a second order dated May 25, 1977. Both parties agree that on May 26 the investigator for the office of the district attorney brought the items requested to the office of appellant’s attorney. However, the appellant’s attorney refused to accept the items and refused to sign a receipt therefor. He also refused to make any further effort to examine tangible evidence in the possession of the state, even though these items were presented to him four days prior to the deadline under the extended order. The trial began on June 7, 1977, thirteen days after the items were submitted to appellant’s attorney and refused.

Appellant has not shown any prejudice by his attorney being offered the inspection of the items of evidence on May 26, pursuant to the extended order, rather than on May 3. Furthermore, the only items of evidence were the four photographs and the remains of the jacket found around the skeleton taken from the water. Certainly, thirteen days would have been sufficient time for the appellant’s attorney to examine these items and do anything he wanted pertaining thereto, even to the extent of requesting further time before trial. However, this was not done.

PROPOSITION 4. Appellant contends that the evidence was not sufficient for the jury to find beyond a reasonable doubt that the alleged killing occurred while appellant was engaged in committing the crime of robbery and, therefore, the appellant could not be guilty of the crime of capital murder, which is a crime punishable by death. Miss.Code Ann., § 97-3-19 (Supp.1977). There is no .contention that the jury was not completely, fully and adequately instructed by the court on the questions of law involved in a so-called felony-murder. The court fully instructed the jury on the statutory definition of robbery, which, according to Code section 97-3-73, is as follows:

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

Appellant questions the sufficiency of the evidence to prove that he had the “intent” to commit the crime of robbery. This Court said in Shanklin v. State, 290 So.2d 625 (Miss.1974):

Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts shown in each case. The intent to commit a crime or to do an act by a free agent can be determined only by the act itself, surrounding circumstances, and expressions made by the actor with reference to his intent. Thompson v. State, 258 So.2d 448 (Miss.1972); Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962).

The Court further said in Thompson v. State, 258 So.2d 448 (Miss.1972), the following:

Unless one expresses his intent, the only method by which intent may be proven is by showing the acts of the person involved at the time in question, and by showing the circumstances surrounding the incident.

As we heretofore have seen in the analysis of the evidence, appellant and Mrs. Griggs had “gone together” for a period of approximately two months without any noticeable difficulty. The only evidence obtainable to show any difficulty occurred the night prior to the alleged crime, when appellant and the deceased had an argument because she would not let him have the car. On this occasion, according to the daughter of the deceased, appellant “drew back his fists” but did not complete the act of striking Mrs. Griggs. We therefore have the situation, that on the following day when the alleged crime took place, there was no known motive for appellant killing the deceased other than regarding possession of the car.

Witness Mayo, the eighteen-year-old nephew of the thirty-year-old appellant, testified that the appellant told him that “he killed the woman — he told me before that he had killed the woman because she wouldn’t put the car in his name.”

As stated above, the jury was fully instructed that it was necessary for them to find that appellant had the intent to rob when the act of killing was done. As we have heretofore seen, this intent may be shown by the acts of the person involved as well as the circumstances surrounding such actions. It is not necessary for that intent to be express and the subsequent acts were an important factor for the jury to consider. After having his first argument with the deceased, regarding taking the car the night before, it is certainly reasonable for the jury to conclude that the appellant actually took the car after performing the acts as testified to by Mayo, his accomplice. In addition to this, he took either $90 or $96 in money from the purse of deceased shortly after the killing. He then kept the vehicle for at least three months before trying to sell it. All of the surrounding facts and circumstances clearly authorize the jury to find that appellant did, according to Mayo, “kill the woman because she wouldn’t put the car in his name” and killed her for the purpose of taking the car and/or the money. The record is devoid of any other reason for the killing, and this Court cannot say that there is any other reasonable hypothesis upon which to reverse the jury’s findings.

PROPOSITION 5. The state clearly proved corpus delicti. The testimony of Mayo, which was obviously believed by the jury, clearly was sufficient to find that appellant either killed, or rendered Mrs. Griggs unconscious with his bare fists; he then ran over her twice with the car; and thereafter threw her either unconscious or dead body, with its broken bones, into the creek. The testimony of Glenda Phillips, daughter of the deceased, clearly identified the body in question as that of her mother.

PROPOSITION 6. Appellant’s attorney alleges that the lower court erred in granting him only twenty minutes in closing argument. He does not say whether this contention is in regard to the argument at the end of the guilt phase of the trial or the sentencing phase. An examination of the record shows absolutely nothing in regard to time limit on arguments at the guilt phase. The only thing therein is an admonition by the trial judge to the spectators in the courtroom that no one would be allowed to enter or leave during presentation of the case to the jury, and his estimation was that it would take approximately one and one-half hours.

At the sentencing stage the only thing in the record is the following:

BY THE COURT: All right, C-l will be given. All right, gentlemen, that takes care of the instructions of law. Each side has requested, or rather the state has requested twenty minutes to present closing arguments to the jury. Does the Defendant wish to present final argument?
BY MR. TIMMONS: Yes, sir.
BY THE COURT: All right, then, are you ready for the jury?
BY COUNSEL: Yes, sir.

No where in the record is there a request for a specific time by appellant’s attorney or any limitation by the court. This alleged error, therefore, is without merit.

PROPOSITION 7. Appellant’s attorney contends that the trial court erred by limiting appellant to six instructions on the guilt phase of the case. This purportedly was pursuant to the rules of procedure of the trial court. The record shows that no such limitation was made by the court. On page 165 of the record the court stated: “Under the circumstances of this case, the rule will be waived and more than six instructions will be considered, but you have offered one or two that’s almost repetitive to the ones given before.”

On page 168 of the record, the court, shortly before presenting the case to the jury, further clarified its position and we find the following:

BY THE COURT: Anything else?
BY MR. YOUNG (District Attorney): If I might clarify one thing for the record, Your Honor. I am not objecting or anything here, I just want to say this. This last thing you said for the record, it is my understanding that you did point out to Mr. Sparks that he could put in additional instructions if they are substantive law that hasn’t already been covered?
BY THE COURT: That’s correct, but the Court pointed out to defense counsel that the Court would consider additional instructions if counsel pointed out to the court why they were needed for this particular kind of case. All right, gentlemen, we will be in recess until 1:30.

An examination of the record showing the instructions requested by appellant, reveals that the jury was fully instructed as to appellant’s defense in the case. Those marked “refused” on the guilt phase of the trial were either erroneous or repetitious of other granted instructions.

In regard to the sentencing phase of the trial, there can be no doubt from the record that all fifteen instructions offered by appellant’s counsel were fully considered by the trial court.

PROPOSITION 8. Appellant contends that the refusal to grant Instruction No. 42 for the penalty phase of the trial was erroneous. This instruction states:

The Court instructs the Jury that in considering any prior record of conviction of an offense by the Defendant, the jury cannot consider prior convictions as indicative of a pattern of criminal conduct or habit that warrants the inference or belief of incorrigibility or the belief that the Defendant is an habitual criminal.

An examination of the record and all the instructions to the jury clearly reveals that it was thoroughly, properly and plainly instructed regarding the sentencing feature of the case. The jury could not have been confused or misled. The granting of the refused instruction D-42 would have been a clear comment by the court on the evidence. The only prior criminal record was a conviction and a plea of guilty to burglary. There was no indication of accusing the appellant as being a “habitual criminal.”

As a further indication that the jurors clearly understood the instructions and the scope of their inquiry, is the fact that out of all statutory aggravating circumstances they could consider, they made three definite findings: (1) The offense was committed while the defendant was engaged in the commission of, or an attempt to, commit robbery; (2) the capital offense was committed for pecuniary gain; and (3) the capital offense was especially heinous, atrocious and cruel. Therefore, this proposition cannot be reversible error.

PROPOSITION 9. Appellant complains that the state did not introduce any further evidence on the sentencing phase of the trial. Neither did the appellant. Under the prior guide lines of this Court, the state is not required to produce additional aggravating circumstances. In fact, the defendant in such cases should have an advantage if the state makes no further offer of proof. It is clear from the record in this case that all the aggravating circumstances in connection with the commission of the alleged crime were already before the jury. The Court cannot speculate as to whether or not there were any possible mitigating circumstances that were not submitted. The jury found three separate and distinct aggravating circumstances from the testimony presented to it. Under the applicable statute, it was only necessary for them to find one aggravating circumstance. Clearly, the jury could find from this record that there were insufficient mitigating circumstances to outweigh the aggravating circumstances, both from the evidence already heard and the fact that no mitigating circumstances were offered.

As is our duty so to do, we have examined carefully the entire record and after a thorough study of the assignments of error, as well as any other possible errors, we are forced to the conclusion that no reversible error was committed. The jury found that this was an especially heinous, atrocious and cruel crime, and we are compelled under the facts and circumstances of this case to agree with such a finding. The case is therefore affirmed.

AFFIRMED AND WEDNESDAY, NOVEMBER 1, 1978, IS SET AS THE DATE OF EXECUTION OF THE DEATH SENTENCE.

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

       Underlining made by the jury.


author: LEE, Justice,

text:
    MEMPHIS BANK & TRUST COMPANY v. Leland D. PATE.
    No. 50578.
    Supreme Court of Mississippi.
    Sept. 20, 1978.

      Yancy & Easley, Cliff R. Easley, Jr., Bruce, Gary L. Jewel, Memphis, Tenn., for appellant.
    Meek & Meek, Buchanan Meek, Jr., Eu-pora, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Memphis Bank & Trust Company filed suit in the Circuit Court of Webster County against Leland D. Pate, seeking possession of an automobile. Judgment was entered in favor of Pate and Memphis Bank & Trust Company has appealed, assigning the following errors in the trial below:

(1) The execution sale was void, therefore, Springer received no title to the subject vehicle at that sale and cannot convey more than he received.

(2) The lien of the appellant is valid in Mississippi and superior to the interests of Springer and Pate.

(3) The procedure described by the Motor Vehicle Act is exclusive for protecting security interests, therefore, even if Mississippi Code Annotated Section 75-9-307 (2) (1972) applies, appellant has a recorded security interest.

(4)The judge erred in his determination that Subsection (2) of Mississippi Code Annotated Section 75-9-307 (1972) allowed Pate to take free and clear the security interest of appellant.

The appellant is a state banking institution chartered under the laws of the State of Tennessee with its principal place of business in Memphis. On February 6,1976, one Lester Eugene Tuck, a resident of Memphis, purchased a 1976 Datsun station wagon from Pat Patterson Motor Sales, Inc., (in Memphis) and executed an installment sales contract and security agreement. This security agreement was assigned to appellant on the same date and the lien of appellant on the station wagon was perfected March 1, 1976, when the bank’s lien was shown on the Tennessee certificate of title.

Tuck became delinquent in his monthly payments on the contract. He was contacted by the bank on September 28, 1976, at which time he advised that the station wagon had been attached. The bank notified its attorney, but the automobile was sold at a sheriff’s execution sale in Memphis on October 5,1976. The vehicle was purchased at the sale by T. J. Springer, manager of Springer Motor Company in Mantee, Mississippi. He listed his address as being in Memphis. Springer paid four hundred seventy-five ($475.00) for the vehicle and it was subsequently sold by him (Springer Motor Company) to the appellee for the sum of thirty-one hundred dollars ($3,100.00). Pate purchased the vehicle for family purposes.

Appellant was unable to locate Springer in Memphis, and finally, through the Motor Vehicle Comptroller’s Office in Mississippi, ascertained that a tag had been obtained by appellee and also determined that Springer had sold the vehicle to him. Appellee did not know about the lien until he was notified in 1977. He had purchased the vehicle to be used as a family vehicle and for personal use.

I.

Was the execution sale void preventing T. J. Springer from conveying title to Leland D. Pate?

Appellant argues that regardless of whether the execution sale was void, as it contends pursuant to Chumbley v. Carrick, 194 Tenn. 612, 254 S.W.2d 732 (1953); Franklin Savings & Loan Corporation v. Snapp, 179 Tenn. 151, 163 S.W.2d 332 (1942); Tibbs v. Zimmerman, 26 Tenn.App. 321, 171 S.W.2d 832 (1941); and Evans v. Belmont Land Company, 92 Tenn. 348, 21 S.W. 670 (1893); the sale was ineffective to vest title in Springer and did not terminate or supersede appellant’s perfected security interest, and was subject to that interest.

Mississippi Code Annotated Section 75-9-202 (1972) provides: “Each provision of this chapter with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debt- or.”

79 C.J.S. Supplement Secured Transactions § 61, at 66 (1974) provides:

“A purchaser of collateral at an execution sale conducted without regard to any default on the part of the debtor acquires only the title of debtor, and the collateral continues subject to the lien of the secured party.”

In Allstate Insurance v. Estes, 345 So.2d 265 (Miss. 1977), this Court held that a purchaser can acquire only that interest which the seller had.

Powell v. Whirlpool Emp. Federal Credit Union, 42 Mich.App. 228, 201 N.W.2d 683 (1972), holds that an execution sale passes only the interest held by the debtor and any purchaser takes subject to a validly perfected security interest.

In Tennessee, a security interest in an automobile is perfected by noting on the certificate of title the lien and the name of the lienholder [Tenn. Code Ann. § 59-327], Appellant claims that the sale was void. The Tennessee statute was complied with in the present case, and we are of the opinion that the sheriff’s sale, if not void under Tennessee decisions, was subject to appellant’s interest.

II.

Was appellant’s lien on the vehicle still valid in Mississippi?

III.

Is the procedure prescribed by the Motor Vehicle Title Law the exclusive means for protecting the security interest in question?

Mississippi Code Annotated Section 75-9-103 (1972) read in part as follows:

“(3) If personal property other than that governed by subsections (1) and (2) is already subject to a security interest when it is brought into this state, the validity of the security interest in this state is to be determined by the law (including the conflict of laws rules) of the jurisdiction where the property was when the security interest attached. However, if the parties to the transaction understood at the time that the security interest attached that the property would be kept in this state and it was brought into this state within thirty (30) days after the security interest attached for purposes other than transportation through this state, then the validity of the security interest in this state is to be determined by the law of this state. If the security interest was already perfected under the law of the jurisdiction where the property was when the security interest attached and before being brought into this state, the security interest continues perfected in this state for four (4) months and also thereafter if within the four-month period it is perfected in this state. The security interest may also be perfected in this state after the expiration of the four-month period; in such case perfection dates from the time of perfection in this state. If the security interest was not perfected under the law of the jurisdiction where the property was when the security interest attached and before being brought into this state, it may be perfected in this state; in such case perfection dates from the time of perfection in this state.
(4) Notwithstanding subsections (2) and (3), if personal property is covered by a certificate of title issued under a statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of the jurisdiction which issued the certificate.”

Mississippi Code Annotated Section 75-9-203 (1972) provided: “. . . [I]n the case of conflict between the provisions of this chapter and any such statute, the provisions of such statute control. Failure to comply with any applicable statute has only the effect which is specified therein.”

If the Mississippi Code section relating to Uniform Commercial transactions applied to the present case, under those sections and the facts here, appellant still would hold a valid perfected security interest which is superior to any interest acquired by Springer and appellee. However, we are of the opinion that the provisions of the Mississippi statute dealing with motor vehicle titles control.

■ Mississippi Code Annotated Section 63-21-43 (1972) provided:

“(3) If a vehicle is subject to a security interest when brought into this state, the validity of the security interest is determined by the law of the jurisdiction where the vehicle was when the security interest attached, subject to the following:
(b) If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached, the following rules apply:
(i) If the name of the lienholder is shown on an existing certificate of title issued by that jurisdiction his security interest continues perfected in this state.
(ii) If the name of the lienholder is not shown on an existing certificate of title issued by that jurisdiction the security interest continues perfected in this state for four months after a first certificate of title of the vehicle is issued in this state, and also thereafter if within the four-month period it is perfected in this state. The security interest may also be perfected in this state after the expiration of the four-month period, in which case perfection dates from the time of perfection in this state.”

The above section is exclusive as set forth by Mississippi Annotated Section 63-21-55 (1972), as follows:

“Except as provided in section 63-21— 53, the method provided in this chapter of perfecting and giving notice of security interests subject to this chapter is exclusive. Security interests subject to this chapter are hereby exempted from the provisions of law which otherwise require or relate to the filing and recording of instruments creating or evidencing security interests.”

Where the name of the lienholder appears on the face of the title, which is the situation here, the perfection of the security interest continues. There has been no issuance of a title certificate in Mississippi, and we are of the opinion that the perfected security interest in Tennessee is valid in Mississippi.

IV.

Did the trial judge err in determining that Subsection (2) of Mississippi Code Annotated Section 79-9-307 (1972) permitted appellee to take free and clear of the security interest of appellant?

We have held, supra, that the Mississippi Vehicle Title Law controls in this ease rather than Mississippi Commercial Code. However, the trial judge based his decision on Section 75-9-307 (2) holding that the subject vehicle constituted consumer goods and the section merits some discussion here. It provided:

“(2) In the case of consumer goods and in the ease of farm equipment having an original purchase price not in excess of two thousand five hundred dollars ($2,500.00) (other than fixtures, see Section 9-313) [§ 75-9-313], a buyer takes free of a security interest even though perfected if he buys without knowledge of the security interest, for value and for his own personal, family or household purposes or his own farming operations unless prior to the purchase the secured party has filed a financing statement covering such goods.”

The evidence indicates that appellee (1) bought without knowledge of the security interest, (2) for value and (3) for his own personal family or household purposes. The definition of consumer goods is stated in Mississippi Code Annotated Section 75-9-109 (1972):

“Goods are
(1) ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes;
* * * * * *
(4) ‘inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, of if they are raw materials, work in process or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment.”

Consumer goods are defined as goods in the hands of the seller as well as the buyer, otherwise, the goods would constitute a part of the seller’s inventory. The seller must hold the property for personal, family or household purposes at the time of the sale and the buyer likewise must buy and use the property for those purposes. White & Summers, Handbook of the Law Under the Uniform Commercial Code, § 25-14, at 943-944 (1972) gives the following discussion on this question:

“Perhaps a word is in order to explain how we arrived at the conclusion that the goods must be consumer goods in the seller’s hands. We find that requirement in the prepositional phrase which introduces 9-307 (2): ‘in the case of consumer goods . . . ’ That phrase must refer to the status of the goods in the hands of the seller or it would be redundant, for the next to the last clause in the sentence (‘and for his own personal, family or household purposes’) refers to the status of the goods in the buyer’s hands. Thus, to give meaning to the introductory phrase, one must find it refers to the status of the goods in the seller’s hands. This interpretation is also supported by earlier drafts of the Code in which subsection (1) was introduced by the phrase ‘In the case of inventory,’ an apparent reference to the status of the goods in the seller’s hands under subsection (1). That reference was ultimately removed on the ground that it was superfluous because a buyer in the ordinary course is defined as one who must buy out of inventory. Finally, our interpretation is supported by the bulk of the judicial and scholarly opinion on the subsection. For the foregoing reasons, we conclude that the section applies only to the sales ‘by amateurs to amateurs.’ ”

79 C.J.S. Supplement Secured Transactions § 63, at 69 (1974), states the rule as follows:

“A provision of the Uniform Commercial Code (9-307-(2)) gives protection to the buyer of consumer goods against a perfected security interest under specified circumstances. This provision is limited in its application to transactions between a consumer seller and a consumer buyer, and the goods must be consumer goods in the hands of both buyer and seller.
A buyer does not take free of a security interest under this provision where prior to the purchase a financing statement has been filed with respect to the security interest.”

For decisions from other jurisdictions answering the question, see New England Merchants National Bank of Boston v. Auto Owners Finance Company, Inc., 355 Mass. 487, 245 N.E.2d 437 (1969); Everett National Bank v. Deschuiteneer, 109 N.H. 112, 244 A.2d 196 (1968); National Shawmut Bank of Boston v. Jones, 108 N.H. 386, 236 A.2d 484 (1967); Muir v. Jefferson Credit Corporation, 108 N.J.Super. 586, 262 A.2d 33 (1970).

In the present case, Springer Motor Company did not acquire and hold the vehicle primarily for personal, family or household purposes, but for retail sale, and the vehicle constituted a part of the inventory of said company. Therefore, even if the Mississippi Commercial Code governed in this case, Section 75-9-307 would not be applicable.

V.

May the defense of estoppel be raised for the first time on appeal?

Appellee argues that appellant knew for approximately one week that the vehicle had been attached and would be sold, yet, did nothing to protect its security interest. He contends that appellant is estopped from now asserting that interest. No answer or affirmative matter set up the defense of estoppel. Appellee says, however, that the defense developed during the trial and that he should be able to rely on it here. Appel-lee did not request permission to amend the declaration in order to state the defense of estoppel or to conform his answer and pleading to the evidence. He cannot raise the defense of estoppel for the first time on appeal. In addition, appellant had perfected its security interest and was under no duty to act in connection with the sheriff’s sale.

For the reasons stated, the judgment of the trial court is reversed and judgment is rendered here in favor of appellant granting unto it possession of the vehicle.

REVERSED AND RENDERED.

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


author: KENNETH B. ROBERTSON,

text:
    Mrs. E. A. HANEY v. DEPOSIT GUARANTY NATIONAL BANK, CENTREVILLE BRANCH.
    No. 50609.
    Supreme Court of Mississippi.
    Oct. 4, 1978.

      Pool & Hudson, John N. Hudson, Natchez, for appellant.
    Watson, Wilkerson & Walsh, Richard T. Watson, Woodville, for appellee.
    Before ROBERTSON, P. J., SUGG and COFER, JJ., and ROBERTSON, Commissioner.
   KENNETH B. ROBERTSON,

Commissioner for the Court.

This case is here on appeal from the Chancery Court of Wilkinson County, wherein a general demurrer was sustained to appellant’s bill of complaint, following which she declined to amend, and instead, took the appeal.

Her bill of complaint alleged that appel-lee loaned to one Loyd Clanton a sum of money to purchase a motor vehicle; the loan was evidenced by a combination note and disclosure statement dated June 1975 exhibited to her bill of complaint and that, as security therefor, the borrower executed a security agreement on the property being purchased with the loan proceeds also exhibited to her bill of complaint, and appellant signed the note and disclosure statement, as an accommodation party, for the sole purpose of lending her name thereto, receiving no benefit therefor, having done so “relying upon the bank as an experienced lender to perfect the security interest” in the collateral.

She further alleged that, thereafter, the bank delivered to the borrower both the collateral and all necessary documents to perfect the security interest, but the security was never to the date of her suit, perfected, and that the borrower defaulted under the note and that, while writing several demand letters to the borrower, appellee initiated no action to recover the collateral and prevent further depreciation in its value. As a result of appellee’s failure to recover the security promptly, and its further failure to acquire a valid security interest appellee “unjustifiably impaired the collateral,” thus discharging her obligation as an accommodation party to the note.

She alleged that throughout early 1976, appellee on several occasions represented to her that, due to the borrower’s default she, appellant, was obligated to pay the debt, and that it was looking to her therefor when, in fact, her obligation was discharged by appellee’s unjustly impairing the collateral. On or before May 18, 1976, appellee made demand on her to pay the debt, and represented to her that she was obligated to pay it and additional interest running on the note as well as collection costs should the debt not be promptly paid. Believing these representations to be true, and that, in return for her payment, she would receive a good and valid lien on the collateral, “and in order to withdraw other funds on deposit with the bank,” she was induced to pay the total amount then payable on the note and that, on doing so, appellee assigned all rights under the note and disclosure statement security agreement, and an unfiled financial státement, and as a further inducement for the payment, appellee represented to her that it would use its resources to help her locate and recover the security.

She charged that, when making the representation to her, appellee and its representatives knew that it had not perfected the security interest and, in fact, had knowledge that all documents being delivered to her were totally worthless, causing total failure of consideration for her liquidating the debt; that, after her payment of the debt, she first realized that the papers in her possession were worthless, and that her payment was made under the mistaken belief that the security interest she was receiving was good, valid and perfected. Therefore, she alleged due to appellee’s failure to perfect the security interest, she paid the monies to appellee under the mistaken fact that the sum paid was necessary for the discharge of an obligation, when the said obligation had been discharged.

She notified appellee of the mistake and demanded reimbursement of the amount she had paid to it, which request was denied and appellee continues to refuse to make such refund.

She prayed for money decree against ap-pellee for the amount she paid plus interest and costs.

The combination note and disclosure statement she exhibited to her bill of complaint contains the provision “. . . the Bank may at its discretion surrender any collateral without affecting the liability of any obligor.”

Appellee assigned absence of equity on the face of the bill as ground of its general demurrer. We affirm the lower court.

At the threshold of the case lies the well-known legal principle that, where there is a conflict between the allegations of a pleading and an exhibit thereto the content of the exhibit governs, when, as in this case, the exhibit is the basis upon which relief is prayed. Robinson v. Martel Enterprises, Inc., 337 So.2d 698, 704 (Miss.1976).

Mississippi Code Annotated, section 75-3-606(l)(b) (1972) provides:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder .
(b) Unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse. (Emphasis added).

While relying on Section 75 — 3-606(1)(b) appellant overlooks (1) the unjustifiable impairment of collateral must be without the consent of the party claiming discharge thereon, and (2) the very instrument on which she became a party has her consent that appellee might surrender any collateral without affecting her liability.

We have not heretofore spoken to the particular issue, but we can only conclude that failure to perfect the security interest is one method of surrendering the collateral and that in this case, and with appellant’s consent, failure to perfect the security interest did surrender the collateral.

In the Georgia case of Green v. Bank of Upson, 231 Ga. 287, 201 S.E.2d 463 (1973), suit was between appellee, holder of a note, and appellant, guarantor. There was a guaranty of payment agreement providing in part that the holder of the note there involved might, without notice, “surrender, compromise, substitute or exchange all or any part of the collateral . . .” The Supreme Court stated that “the question here is whether the bank’s failure to file a financing statement impaired the collateral so as to discharge the appellant who was an endorser and guarantor of the obligation,” and answered the question saying, “We hold that under the agreements here the appellant consented to the impairment of the collateral and can not now complain.”

In the decision, the Court cited Etelson v. Suburban Trust Co., 263 Md. 376, 379, 283 A.2d 408, 410 (1971). In the Etelson case, it was held:

Etelsons by agreeing to the broad language of the endorsement limited the protection to which they might have otherwise been entitled under the UCC. It is clear from the express wording of the endorsement that the Bank could have released the collateral at any time without notice to the Etelsons and without the release affecting the Etelson’s obligation to pay. It would be illogical to rule that the Bank had a duty to file the financing statement and its failure to do so released the endorsers, when under the endorsement, it could have released the collateral with impunity. (283 A.2d at 410).

The demurrer was properly sustained.

AFFIRMED.

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

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


author: SUGG, Justice,

text:
    GULF NATIONAL BANK v. George H. KING, a/k/a Harold H. King and Elna M. King, a/k/a Elna N. King.
    No. 50688.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Mize, Thompson & Blass, John C. Ellis, Gulfport, for appellant.

      White & Morse, George M. Morse, Gulf-port, Vlahos & Caranna, Matt G. Lyons, Biloxi, for appellees.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

This appeal is from a judgment of the Circuit Court of Harrison County holding plaintiff’s suit was barred by the statute of limitations. We affirm.

On March 29,1974, defendants executed a promissory note to plaintiff in the amount of $13,228.20 secured by a deed of trust on real property owned by the defendants. Defendants defaulted, the deed of trust was foreclosed on August 28,1975, plaintiff purchased the property for $750 at the foreclosure sale and credited this amount toward reduction of the note. Plaintiff filed suit against the defendants for a deficiency judgment on May 24, 1977 and the defendants, who were then residents of Houston, Texas, were sued under section 13-3-57 Mississippi Code Annotated (1972), the “Long Arm Statute.”

The defendants each filed an answer and set forth separately in each answer the defense that the cause of action was barred by the one year statute of limitations contained in section 15-1-23 Mississippi Code Annotated (1972). Defendants then moved that the matter separately set up in their answers be heard and disposed of before the principal trial of the cause as authorized by section 11-7-59 Mississippi Code Annotated (1972).

Plaintiff filed its replication to the answer of the defendants and asserted that both defendants were absent from and residing out of the State of Mississippi, thereby invoking the provisions of Section 15 — 1— 63, Mississippi Code Annotated (1972), which tolls the statute of limitations while defendants are absent from the state.

The question is whether the statute of limitations was tolled by the long arm statute (Section 13-3-57). We have not passed on this question, but have adhered to the rule since 1859 that a defendant’s absence from the state does not toll a statute of limitations if defendant may be served with process and is amenable to suit.

In French v. Davis, 38 Miss. 218 (1859), one of the questions before the Court was whether the period of the absence of the defendant from the state was to be deducted from the time of the running of the statute of limitations there involved. The Court, in holding that the statute of limitations was not tolled, stated:

The reason on which the exception of the time of the defendant’s absence from the State, from the running of the statute, depends, is, that during such absence the plaintiff has been prevented from pursuing his remedy to recover his debt, and in order to protect the rights of the plaintiff when his failure to sue has been occasioned by the act of the defendant. But still the policy of statutes of limitation is to promote diligence, and to discountenance delays in bringing suits, and to allow no indulgence to the failure of parties to bring their actions, except where their right to do so has been prevented by the conduct of the defendant, or certain disability of the parties suing. Hence, if the right to sue, be, according to the due course of law, open and available to the plaintiff, so as to enable him effectually to assert his right by suit, he will not be excused for his failure to sue, and will not be entitled to the benefit of an alleged exception to the time of the running of the statute.
It is clear that the Statute of 1852, provided a mode by which the plaintiff could prosecute his suit, notwithstanding the absence of the defendant from the State. It enabled the plaintiff to sue and obtain his judgment against the administrator, to be levied of the assets of the estate in his hands, as effectually as he could have done if the administrator had been in this State, and personally served with process. (38 Miss, at 225)

In Dent v. Jones et al., 50 Miss. 265 (1874) we held that diligence in the commencement of suits is necessary, and if process can be served, absence from the state should not be deducted to save the bar of the statute. Later cases follow the rule.

A majority of courts in other jurisdictions, when confronted with the question presented in this case, have refused to give effect to a tolling statute where a defendant claims the benefit of a statute of limitations and is amenable to suit under a long arm statute. 55 A.L.R.3rd 1163 (1974) These courts hold that tolling a statute of limitations where the defendant is amenable to suit and may be served with process would frustrate the purpose of long arm statutes. 55 A.L.R.3rd 1187 (1974).

Section 13-3-57 Mississippi Code Annotated (1972) provides a method for suing a non-resident defendant and obtaining process on him. If a plaintiff can obtain process on a non-resident defendant, in a suit filed under the long arm statute, he will not be excused for his failure to sue and will not be entitled to claim that the statute of limitations is tolled during the absence of the defendant from the state. Stated differently, section 15-1-63 Mississippi Code Annotated (1972) does not toll the statute of limitations in such cases.

Plaintiff argues, however, that the burden of proof rests on the non-resident defendant to prove that he was amenable to process during his absence from the state. As a practical matter, the rule urged by plaintiff would require a non-resident defendant to prove that the plaintiff knew defendant’s address so that process could be served on him in accord with Section 13-3-63 Mississippi Code Annotated (1972). We do not agree that this is the proper rule.

When a defendant pleads a statute of limitations as a defense and shows that the suit is barred by limitations, he has met his burden of proof. If the plaintiff claims his suit is not barred by a statute of limitations because the statute was tolled by the defendant’s absence from the state, the burden is on him to show the duration of defendant’s absence. The burden is also on the plaintiff to show that defendant cannot be served with process under any of the ways provided by statute for service of process on a person who is absent from the state.

This suit was filed under our long arm statute (Section 13-3-57) which requires that process be served in accordance with section 13-3-63 Mississippi Code Annotated (1972). When process is served on the secretary of state as authorized by 13-3-63, service is not complete until the secretary of state mails, by certified or registered mail, to the defendant notice that the summons has been served on him. State Farm Mutual Automobile Insurance Company v. Stewart, 209 So.2d 438 (Miss.1968). Plaintiff argues that it could not file suit until the address of the defendants could be ascertained and they could furnish the secretary of state with defendants’ address. It therefore contends that the statute of limitations should be tolled.

The record is devoid of any proof that plaintiff did not know where the defendants were. To the contrary, the allegations in the declaration and defendants’ answers to interrogatories indicate that plaintiff knew where the defendants were. Defendants stated in their answers to plaintiff’s interrogatories that one of the defendants moved to Houston, Texas in August, 1974, the other defendant moved to the same city in December, 1974, and both have resided there continuously since that time. Plaintiff’s declaration and exhibits show defendants’ note was for $13,228.20 payable in sixty equal monthly installments, the first installment of $220.47 was due May 10, 1974, and when suit was filed the balance due on the note was $9,591.90. The balance included late charges and allowed a credit of $750 from the foreclosure sale. From the above information we deduce that defendants made thirteen monthly payments on the note making default occur on the July 10, 1975 installment.

The declaration charges, “The said note was not paid, demand having been made for payment of same . . .’’If demand was made on defendants after they defaulted, then the demand could not have been made until after default of the July, 1975 installment. It naturally follows that plaintiff had to know where the defendants were to make the demand for payment, so the plaintiff must have known defendants were in Houston, Texas.

So far as this record is concerned, plaintiff could have filed its suit any time after the foreclosure on August 28, 1975, but delayed filing suit until the statute of limitations had barred its action. We therefore affirm.

AFFIRMED.

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


text:
    Lola Tippitt CALLAHAN v. Roy G. CALLAHAN.
    No. 50731.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Christopher A. Tabb, Charles H. Ram-berg, Brandon, for appellant.
    McKinley, Zebert & Childre, Thomas L. Zerbert, Pearl, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concurring.


text:
    Mary PETERSON, Administratrix of Estate of Walter Peterson, Deceased v. Walter L. ROBINSON, Jr.
    No. 50657.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Nobles & Ferguson, William W. Ferguson, Jackson, for appellant.
    Heidelberg, Woodliff & Franks, Sam E. Scott, Timothy R. Smith, Jackson, for ap-pellee.
    Before ROBERTSON, P. J., WALKER and BROOM, JJ., and NEAL B. BIGGERS, Jr., Commissioner.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Affirmed.


text:
    PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY and Mace Siegel d/b/a Battlefield Mall Shopping Center Company, a partnership v. T. G. & Y. STORES COMPANY.
    No. 50655.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Young, Scanlon & Sessums, Robert Brad Sessums, Jackson, for appellant.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Baine, Moore, Simmons & Thompson, Eugene A. Simmons, Frank T. Moore, Jr., Jackson, for appellee.

Before ROBERTSON, P. J., WALKER and BROOM, JJ., and NEAL B. BIGGERS, Jr., Commissioner.

Affirmed.


text:
    Charles WATSON v. THAMES STANDARD OIL SERVICE STATION and Travelers Insurance Company.
    No. 50653.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    John L. Walker, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Terry R. Levy, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

Affirmed.


text:
    H. J. WILSON COMPANY, INC. v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Eula Armon.
    No. 50652.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Gerald, Brand, Watters, Cox & Hemle-ben, Si M. Bondurant, Jack W. Brand, Jackson, for appellant.
    Leopoldo T. Aragon, Jackson, for appel-lees.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Karen Jackson GOODE v. CASTLEWOOD ARMS, INC.
    No. 50660.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Reynolds & Mockbee, David W. Mockbee, Jackson, for appellant.
    Fred A. Ross, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Gladys HOLMES v. STATE of Mississippi.
    No. 50715.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    E. Howard Tucker, Jackson, Emory E. Morgan, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

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

AFFIRMED.


text:
    CLINTON PUBLISHERS, INC., et al. v. Jack Renny MATTHEWS and Jeanette Yvonne Matthews.
    No. 50656.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Brunini, Grantham, Grower & Hewes, Holmes S. Adams, W. Timothy Jones, Jackson, for appellant.
    Paul D. Snow, III, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    E. W. WILSON et al. v. J. R. CAMPBELL et al.
    No. 50893.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Ben F. Hilbun, Jr., Starkville, for appellants.
    Tubb, Stevens & Morrison, Thomas J. Tubb, West Point, for appellees.
   Appeal from Circuit Court, Clay County; Joe 0. Sams, Sr., Judge.

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

AFFIRMED.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 16.
    Supreme Court of Alabama.
    Oct. 3, 1978.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION DOCKET FEE — APPEAL FROM A DISTRICT COURT TO THE CIRCUIT COURT

Mr. Jimmy Lindsey, Circuit Clerk of De-Kalb County, has submitted the following inquiry regarding Rule 7, Alabama Rules of Judicial Administration:

“Would you please advise me in writing as to what authority, if any, I have to collect a docketing fee for district court civil cases appealed to circuit civil court.”

Section 12-2-19(d), Code of Alabama 1975, authorizes the Clerk of the Supreme Court to “give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the Supreme Court to any other officer or official of the state who shows a need for such opinion and requests the same.”

It is my opinion that Rule 7, Alabama Rules of Judicial Administration, considered with §§ 12-19-71, 12-12-70 and 12-12-71, Code of Alabama 1975, authorizes a circuit clerk to collect a docket fee on an appeal of a civil case from the district court to the circuit court. Rule 7, supra, is as follows:

FEES FOR MISCELLANEOUS FILINGS

“Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

“Consolidated fee structure” in Rule 7 means the fees prescribed in Chapter 19 of Title 12, Code of Alabama 1975. Opinion of Clerk, Ala., 356 So.2d 636 (1978). There is no express cost under Chapter 19 of Title 12 for filing in the circuit court an appeal from the district court.

In my opinion, the words, “an original filing for cost purposes,” refer to § 12-19-71(3).

The part of § 12-19-71 pertinent to this opinion reads as follows:

“The docket fees collected in civil cases shall be: .
(3) Thirty-five dollars for cases filed in circuit court.”

The right of appeal and the procedure for appeals from the district courts to the circuit courts are stated in § 12-12-70, Code of Alabama 1975.

The prevailing rule in Alabama is that an appeal is the institution of a new statutory proceeding. Ohio Cas. Ins. Co. v. Gantt, 256 Ala. 262, 54 So.2d 595 (1951); Anders Bros. v. Latimer, 198 Ala. 573, 73 So. 925 (1917); Cook v. Adams, 27 Ala. 294 (1855); Mazange v. Slocum & Henderson, 23 Ala. 668 (1853). The rationale of this rule is stated in Anders Bros. v. Latimer, supra, as follows:

“An ‘appeal,’ in this state, is the mode of commencing a new and independent suit in this court, the object of which is a revision of the proceedings of the inferior court. It is the mode of initiating a judicial proceeding before a court of competent jurisdiction.”

Section 12-12-71, Code of Alabama 1975, provides that, with certain exceptions not pertinent to this opinion, “all appeals from final judgments of the district court shall be to the circuit court for trial de novo.”

In Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970), the Supreme Court of Alabama wrote:

“The very word de novo itself means anew, afresh, trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.”

It is my opinion that an appeal from a district court to a circuit court is a case within the meaning of the words, “cases filed,” in § 12-19-71; that a filing of an appeal is a filing under Rule 7, Rules of Judicial Administration; and that the fee for docketing an appeal from the district court to the circuit court is $35.00.