text:
    LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. Elwyn B. BRAWNER, Defendant-Appellant.
    No. 6249.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      Stephen E. Everett, Alexandria, for defendant-appellant.
    Bolen, Halcomb & Erwin by James A. Bolen, Jr., Alexandria, for plaintiff-appel-lee.
    Before WATSON, GUIDRY and FORET, ■ JJ.
   FORET, Judge.

This is a suit filed by Liberty Mutual Insurance Company against defendant, Elwyn Brawner, for damages arising out of an automobile accident. From a judgment for Liberty Mutual, defendant appeals. We reverse in part, and affirm in part.

On June 10, 1975, at approximately 10:49 A.M., a 1975 Ford Torino 4-door sedan, owned by Bordelon Motors, Inc. of Opelou-sas, St. Landry Parish, Louisiana, and leased by it to the St. Landry Parish Sheriff’s Department, was being driven in a northerly direction on MacArthur Drive in Alexandria, Rapides Parish, Louisiana, by a St. Landry Parish Sheriff’s deputy, Dennis Macip. Mr. Macip was accompanied by Ms. Stella Ardoin, another St. Landry Parish Sheriff’s deputy. MacArthur Drive is a four lane divided highway, with two lanes north and two lanes south-bound. As Ma-cip approached the intersection of MacArthur Drive and Rapides Avenue, the motor vehicle which he was driving collided with a 1969 Dodge 4-door automobile owned and driven by the defendant, Elwyn B. Brawn-er, who was proceeding in an easterly direction on Rapides Avenue.

Plaintiff, Liberty Mutual Insurance Company, was the collision insurer of the owner of the motor vehicle, Bordelon Motors, Inc., and as a result of the collision, paid to its insured, Bordelon Motors, Inc., Seven Hundred Sixty-Three and 81/100 ($763.81) Dollars in property damages, obtaining a conventional and legal subrogation against defendant of the insured’s rights and causes of action. Ms. Ardoin allegedly received personal injuries in the accident.

On February 5, 1976, plaintiff, Liberty Mutual Insurance Company, filed suit against the defendant, Elwyn Brawner, for Eight Hundred Sixty-Three and 81/100 ($863.81) Dollars, the alleged amount of its subrogated collision claim. (At trial, this amount was reduced to $763.81 by stipulation, and is not an issue on appeal.)

Subsequently, on May 27,1976, Stella Ar-doin signed an instrument entitled “Release and Settlement of Claim”, which stated that for the sole consideration of Three Thousand Two Hundred Fifty and No/100 ($3,250.00) Dollars, she released Dennis Ma-cip, Bordelon Motors and Liberty Mutual Insurance Company from any and all liability which they may have as a result of the accident of June 10, 1975.

It was determined that Elwyn B. Brawn-er, the owner of the Dodge automobile, was an uninsured motorist within the meaning and intendment of Liberty Mutual’s insurance policy, and on October 28, 1976, the said Stella Ardoin executed an agreement styled “Release and Trust Agreement”, in which she acknowledged receipt of the aforementioned sum of $3,250.00, and agreed to hold in trust for the benefit of Liberty Mutual all rights of recovery which she had against anyone who might be legally liable for damages for the alleged bodily injuries sustained by her in the June 10th accident.

On November 18, 1976, Liberty Mutual filed a pleading styled “First Amending and Supplemental Petition for Damages”, wherein it amended Paragraph 2 of its original petition, to demand damages in the sum of Four Thousand One Hundred Thirteen and 81/100 ($4,113.81) Dollars, and added a new paragraph to the petition setting forth that: (1) defendant was an uninsured motorist, and (2) that the plaintiff had paid to Ms. Ardoin the sum of $3,250.00 for her injuries, obtaining in return a conventional and legal subrogation from Ms. Ardoin against the defendant for her rights and causes of action against the tortfeasor. The pleading does not contain any specification of the injuries suffered by Ms. Ardoin.

After the filing of the original petition, defendant filed an exception of prescription alleging that the demand for damages for personal injuries to Stella Ardoin was prescribed by the liberative prescription of one (1) year. On December 20,1976, the exception was overruled, without written reasons. Answer to the original and first supplemental and amending petitions was filed, and following trial, judgment was rendered, without written reasons, on April 27, 1977, for Four Thousand Thirteen and 81/100 ($4,013.81), in favor of plaintiff and against defendant, with interest and costs. From this judgment, defendant has appealed, de-volutively. However, on appeal, defendant does not challenge the correctness of the judgment in favor of Liberty Mutual insofar as the $763.81 award for property damage is concerned. We are therefore only concerned with the award of $3,250.00 for damages paid by Liberty Mutual to Stella Ardoin.

Several specifications of error were made on appeal by defendant, one of which was an exception of prescription based on the fact that the first supplemental and amended petition seeking recovery against defendant for the amount which Liberty Mutual had paid to Ms. Stella Ardoin was filed more than one year after the accident, and accordingly was prescribed under the rule of one year tort liberative prescription. We agree with defendant-appellant, and consequently it will not be necessary to discuss the other specifications of error.

Neither appellee nor appellant has furnished us with any Louisiana jurisprudence involving the issue of prescription in an exact factual situation such as exists in this case. Likewise, our research has failed to reveal any Louisiana cases on point.

It is axiomatic, however, that Stella Ar-doin had a cause of action for personal injuries which she may have sustained as a result of the automobile collision. However, her right to exercise that cause of action had a life span of one year from the date of the accident. LSA-C.C. Articles 3536 and 3537. Short of filing suit within the year, there was nothing which Ms. Ar-doin could unilaterally do to extend the period of viability of her cause of action. By the timely filing of a suit therefor, however, her cause of action remained legally effective until it was disposed of in a court of law, paid, compromised, or abandoned. Thus, her failure to file suit within the one-year period resulted in the demise of her cause of action under LSA-C.C. Articles 3536 and 3537.

However, Liberty Mutual claims to be subrogated to Ms. Ardoin’s rights against defendant Brawner, and that its filing of suit against Brawner for property damages (paid under its collision policy) on February 5,1975, within a year of the accident, interrupted the tolling of the one-year prescriptive period. Therefore, it could amend its petition to claim the damages paid to Ms. Ardoin even though the amended petition claiming that amount of damages was filed more than one year after the accident. In essence therefore, Liberty Mutual is claiming a greater right than Ms. Ardoin herself had. There is no question but that Ms. Ardoin could not, on November 18, 1976, have filed a suit against defendant Brawner for injuries received in an accident which occurred on June 10, 1975.

It is appropriate to note at this point that the “Release and Settlement of Claim” signed by Stella Ardoin on May 27, 1976, was a general release, and made no mention of Stella Ardoin assigning or subrogating to Liberty Mutual, or any other party, any rights which she may have had against defendant Brawner. In the said release, she acknowledged receipt of $3,250.00, and released Liberty Mutual, Dennis Macip, and St. Landry Parish Sheriff’s Office, and “any other person or persons, etc.” from any and all claims which she may have arising out of the accident of June 10. Nowhere therein is the word “subrogation” mentioned, nor any phrase even implying that as a result of her execution of the instrument, Liberty Mutual or anyone else became subrogated to her rights against Brawner. It was only by the “Release and Trust Agreement” which Ms. Ardoin signed on October 20, 1976, that she agreed to hold in trust for' the benefit of Liberty Mutual all rights of recovery which she had against anyone who might be legally liable for damages as a result of the June 10 accident. Therefore, Liberty Mutual can only have become sub-rogated to Ms. Ardoin’s rights by virtue of the provisions of LSA-R.S. 22:1406 D(4) which provides as follows:

“In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made. . ."

In United States Fire Insurance Co. v. Lawson, 317 So.2d 217 (La.App. 4 Cir. 1975), writ refused 321 So.2d 367, an uninsured motorist insurer paid claims under its uninsured motorist coverage over a year after an automobile accident, and then sued the uninsured motorist-tortfeasor, to recover the amount paid. The trial court dismissed plaintiff’s suit on an exception of tort prescription, and the Fourth Circuit affirmed. The Fourth Circuit found that the case with which it was confronted was governed by Marquette Casualty Co. v. Brown, 1958, 235 La. 245, 103 So.2d 269. In Brown, a workmen’s compensation insurer’s demand for reimbursement against a tortfeasor was held prescribed by one year. Brown reasoned that no cause of action existed except that granted by the statute, R.S. 23:1101-1103, which was held to be but subrogation to the injured workman’s tort claim. Having said this, Lawson then quotes R.S. 22:1406 D(4) and analogizes Subsection D(4) to R.S. 23:1101-1103 by quoting from and emphasizing pertinent portions of Section D(4) as follows:

“[i]n the event of payment to any person under [uninsured motorist coverage] . the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person ” against tort-feasor, etc. (Emphasis by Fourth Circuit.)

By emphasizing the words “to any person” and “of such person”, obviously the Fourth Circuit was saying, and holding, that a sub-rogee cannot acquire a greater right that that which the subrogor had, albeit whether subrogee derives its rights from the workmen’s compensation act or from the uninsured motorist statute.

Liberty Mutual contends, however, that by the filing of suit against Brawner for its property damage claim, prescription was interrupted as to the claim for personal injuries paid to Ms. Ardoin. Liberty Mutual relies on La.R.S. 9:5801 which states that:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.”

We do not agree with Liberty Mutual. Assuming arguendo that Liberty Mutual became subrogated to the rights of Stella Ardoin, that right was a separate cause of action from that which Bordelon Motor Company had against defendant Brawner. The claims of Bordelon Motors and Stella Ardoin could not have even been brought in the same law suit, over objection by either, nor could Stella Ardoin have intervened in a suit by Bordelon Motors, and vice versa. Klotz v. Nola Cabs, Inc., 209 So.2d 158 (La.App. 4 Cir. 1968); Resor v. Mouton, 200 So.2d 308 (La.App. 4 Cir. 1967); St. Paul Fire & Marine Ins. Co. v. Standard Casualty & Surety Co., 3 So.2d 463 (La.App. 2 Cir. 1941).

Additionally, with reference to the date that prescription began to run, St. Paul Fire & Marine stated at Page 466:

“It is true that the right of action did not accrue until the date of payment, but nevertheless, the cause of action arose on January 20,1939, which is the date when the prescriptive period began to run.”

In interpreting LSA-C.C.P. Article 1091, Resor v. Mouton, supra, and Koltz v. Nola Cabs, supra, stand for the proposition that there are two distinct causes of action in a case such as the one at bar, one cause of action belonging to Bordelon Motor Company for property damage, and another cause of action for personal injuries belonging to Stella Ardoin. Resor and Klotz would not even permit an intervention by either one of the parties into a suit filed by the other, although in each of those two cases the causes of action of the various parties arose out of a single accident. In Klotz, the City of New Orleans attempted to intervene for property damage occasioned to a police car, in a suit in which Klotz sought to recover, from a tortfeasor, damages for personal injuries. The intervention was denied, and an exception of prescription was maintained (The intervention had been filed more than a year after the accident.), the court holding that the City of New Orleans had no right to intervene, because the causes of action were different; consequently, prescription had run.

In Resor, an action for personal injuries and property damage was filed by an automobile driver against a truck driver and the truck driver’s employer, and the insurer of the truck. The owner of a building damaged as a result of the automobile-truck accident filed a petition for intervention. The Fourth Circuit held that the building owner could not intervene in the action, observing that the building owner-interve-nor sought to introduce a new and unrelated “object” in the pending litigation.

For the foregoing reasons, we conclude that the trial court erred in overruling defendant’s exception of prescription as to the claim of Liberty Mutual for the damages which it had paid to Stella Ardoin. Accordingly, we dismiss Liberty Mutual’s claim for damages against defendant Brawner for the amounts which Liberty Mutual paid to said Stella Ardoin. We affirm the trial court’s judgment in favor of Liberty Mutual for the amount of $763.81, representing the amount which Liberty Mutual claims for the property damage occasioned to the vehicle of Bordelon Motor Company.

The costs in the trial court are assessed equally against both plaintiff and defendant, and the costs of this appeal are assessed against Liberty Mutual Insurance Company.

AMENDED, REVERSED IN PART, AND AFFIRMED IN PART.

      . Apparently based on the sum of the amounts paid to Bordelon Motor Co. for property damage, $763.81, and $3250.00 paid to Stella Ar-doin for bodily injuries.

      . We were very impressed, however, with another specification of error which defendant-appellant asserted, and that was that the burden of proof of Stella Ardoin’s damages was not borne by Liberty Mutual. The only evidence of her injuries is her own testimony, and that of the police officer investigating the accident who stated that he had seen her once in the hospital on the day of the accident and that her arm was in a sling. No doctor’s reports, testimony, or medical bills were introduced into evidence. For a case practically identical on this point, see Allen v. Baucum, 218 So.2d 662 (La.App. 4 Cir. 1969).

      . By making this observation, we do not concede that had a valid subrogation agreement been executed on May 27, 1976, the running of prescription would have been interrupted. We are of the opinion that this fact would have made no difference in the outcome of this case.

      . Art. 1091. Third person may intervene

        A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      (2) Uniting with defendant in resisting the plaintiffs demand; or
      (3) Opposing both plaintiff and defendant.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Virgie BOLDEN, Plaintiff-Appellant, v. GEORGIA CASUALTY AND SURETY COMPANY, Defendant-Appellee.
    No. 6250.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Granted Feb. 24, 1978.
    E. M. Nichols, Lake Charles, for plaintiff-appellant.
    Hall, Lestage & Lestage, H. O. Lestage, III, DeRidder, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and JOHNSON, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation case involving the prescriptive provision of the Workmen’s Compensation Law, La.R.S. 23:1209. Virgie Bolden, plaintiff, was injured on May 23, 1974. Suit was filed against the employer’s insurer on March 24, 1976.

Plaintiff was engaged in the loading, cutting, and hauling of pulpwood for the Bennett Timber Company, Inc., in Beauregard Parish. Although he operated his own truck and employed other laborers, no issue is raised concerning the employment relationship.

At trial counsel stipulated to the following facts:

1. Plaintiff sustained an accidental personal injury on May 23, 1974, in the course and scope of his employment;

2. Plaintiff’s injury was diagnosed by Doctor Henry S. Carter, as a lumbar sacral sprain;

3. Plaintiff was hospitalized beginning May 23, 1974, and ending June 8, 1974;

4. Plaintiff was discharged as cured by Doctor Carter on August 17, 1974;

5. Plaintiff was paid weekly compensation benefits of $45.50 beginning May 23, 1974, and ending August 21, 1974;

6. Plaintiff’s medical expenses for care and treatment for the injury were paid, the last payment being on September 27, 1974; and

7. Plaintiff did not return to work for the employer after the accident of May 23, 1974.

The present controversy arose when Bol-den attempted to mow lawns in the fall of 1974 and began to experience pain in the cervical region of his back. Although plaintiff continually complained of pain in the lower back the cervical pain did not arise until after Doctor Carter discharged plaintiff. In November of 1974 this pain became so severe that plaintiff reported it to Doctor Carter. Doctor Carter undertook conservative treatment.

Pain in the cervical region of the back apparently continued and Doctor Carter was consulted again in April of 1975. Doctor Carter continued conservative treatment, whereupon plaintiff went to another physician in Hattisburg, Mississippi. Doctor McCarthy, the Hattisburg physician, referred plaintiff to Doctor Robert Smith, a neurosurgeon in Jackson, Mississippi.

Doctor Smith examined plaintiff on September 5, 1975. He performed a myelo-gram and determined that surgery was indicated. A decompressive laminectomy was performed on September 26, 1975, and at this time it was discovered that plaintiff had a small herniated disc at the 4th and 5th level of the vertebral column.

Plaintiff brought this suit against the employer’s compensation insurer, Georgia Casualty and Surety Company, alleging that by virtue of the herniated disc he is totally and permanently disabled from the date of the original accident. He seeks maximum compensation benefits, maximum medical expenses, and an increase in the compensation payments already made.

Suit was filed on March 24, 1976, and defendant raised the plea of prescription, claiming that suit was filed more than one year after the last compensation payment.

The trial court referred the exception to the merits. After trial the court sustained the plea of prescription. Plaintiff appealed. We affirm.

The threshold issue raised by plaintiff on appeal is whether the trial judge was correct in finding the claim prescribed.

The prescriptive periods for workmen’s compensation claims are contained in La. R.S. 23:1209. Generally, claims prescribe one year from the date of the accident or one year from the date of the last compensation payment. There are, however, exceptions, one of which is known as the development of injury rule. In pertinent part, the statute states:

“. . . [WJhere the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Although there is an abundance of cases interpreting this exception, three cases are continually cited in the reports: Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952); Johnson v. Cabot Carbon Company, Inc., 227 La. 941, 81 So.2d 2 (1955), and Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956). These cases state the basic features of the rule. The phrase, “the limitation shall not take effect until the expiration of one year from the time the injury develops” means that there is no running of prescription until such time as an employee can no longer perform the duties of his employment. As the court stated in Wallace v. Remington Rand, Inc., supra:

“. . . Development, as applied to a compensable injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.” [Italics by the court]

The exception has a beneficent purpose. It is clear from the plain wording of the statute that the Legislature sought to give an employee who only realizes at some point in time after the occurrence of an accident that he has sustained an injury, one year in which to file suit, provided suit is filed within two years from the date of the accident. It usually operates to avoid penalizing an injured employee who attempts to continue to work or who returns to work after sustaining a compensable injury which is unknown to the employee. See, e. g., Harris v. Seaboard Fire & Marine Insurance Company, 337 So.2d 262 (La.App. 2nd Cir. 1976); Hebert v. Hartford Accident & Indemnity Company, 331 So.2d 222 (La.App. 3rd Cir. 1976); Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3rd Cir. 1974).

We must determine in this case whether there was a development of the injury, and, if so, the time that this injury became manifest.

I. DEVELOPMENT OF THE INJURY

It is apparent that the injury sued upon did not develop until some time after the accident. The report of Doctor Carter, filed into evidence, stated that plaintiff’s initial injury was diagnosed as a lumbo-sacral myofascia strain for which he was treated and subsequently discharged as cured on August 17, 1974. This report notes that at the time of discharge there were no complaints of pain in the cervical region of the back. Doctor Carter states that plaintiff only complained of pain in this region at the examination in November of 1974.

In addition to the report of Doctor Carter, plaintiff stated that he was unaware of any pain in the cervical region of his back at the time of discharge. Plaintiff’s testimony clearly indicates that this pain began when he attempted to mow lawns around November of 1974, at which time he reported the pain to Doctor Carter. It was this symptom that ultimately led to Doctor Smith’s diagnosis and surgery in September of 1975, which revealed the herniated disc. Since this did not arise until after plaintiff’s initial discharge, we agree with the trial court that there was a development of the injury at some point after the accident.

Defendant argues, however, that even if there was a development of a subsequent injury the employee in this case cannot assert the exception because he did not return to his former employment. It apparently maintains that if an employee receives an initial injury following an accident and does not return to his employment, the initial injury should be considered as continually manifesting itself and the development of a second injury would be irrelevant for purposes of the exception. It contends that since Bolden did not return to his employment because of pain in his lower back, Bolden’s injury continually manifested itself and the subsequent development or manifestation of an injury in the cervical region of the back is of no consequence.

We reject defendant’s argument. It attaches too much significance to Bolden’s failure to return to work with the timber company. Continuation or resumption of employment may be highly persuasive to a court in indicating that an injured employee was unaware of a compensable injury or that an injured employee’s injuries were latent and did not develop until some time after the accident, but they are not necessarily controlling. An employee who sustains an accident may decide to cease employment, even though he is capable or feels that he will be capable of continuing employment, and, if a subsequent injury manifests itself after the accident, he may still sue provided suit is brought within one year following the manifestation and within two years from the date of the accident. The important factor is that an injured employee is not aware that he cannot pursue gainful employment.

In the instant case Bolden testified that he did not feel capable of returning to his original employment with the Bennett Timber Company. He did, however, attempt to perform some duties as a grass cutter. Although the trial court found that this was not a return to gainful employment, it does indicate that plaintiff thought he would eventually be able to work. Bolden’s failure to return to the timber company does not preclude application of the development of injury rule.

II. TIME OF MANIFESTATION

The trial court made the factual determination that plaintiff's cervical injury became manifest in November of 1974, when Bolden consulted Doctor Carter. Accordingly, the claim prescribed in November of 1975, and, therefore, suit filed on March 24, 1976 was untimely.

Plaintiff argues, however, that the injury actually manifested itself in September of 1975, when Doctor Smith discovered the herniated disc. He contends that the consultation with Doctor Carter in November of 1974 only suggested cervical myositis as stated in the doctor’s report. Alternatively, plaintiff contends that the injury manifested itself in April of 1975, when Doctor Carter thought the symptoms suggested cervical nerve root irritation.

We reject plaintiff’s contention that the herniated disc manifested itself in September of 1975 and his alternative contention that the herniated disc manifested itself in April of 1975. It seems clear that Bolden’s injury manifested itself in November of 1974 when his pain reached such an intense level after mowing lawns that he was forced to see Doctor Carter. At this time it became apparent that plaintiff could no longer engage in gainful employment. Plaintiff’s testimony on cross-examination bears upon this point.

Well, Virgie, isn’t it a fact that you didn’t have any trouble in your neck until you went to work in those yards for Mr. Hood and Mr. Stewart? Isn’t that a fact? Q-
A. I had some misery.
Q. In your neck?
A. I had some light misery in my neck, but it wasn’t severe. I didn’t have to knock off. I could stir around as long as I didn’t try to do no work.
Q. Since you were doing that work in those yards, it came on you pretty severe then, didn’t it? Your neck?
A. It got worser right now.
Q. It got pretty bad though when you were working in those yards?
A. Bad — Bad.
Q. And it’s been bad ever since right up to the time they operated on your neck, wasn’t it?
A. Well, I got eased some when they operated on my neck, but if I get out to do anything now.
Q. But I mean from the time in November of 1974, when you first started having severe trouble in your neck because of working in those yards, it was severe up until that time that doctor in Jackson operated on you, isn’t that right?
A. From the time I worked on Mr. Stewart’s and them’s yard?
Q. Yes. From that time until you went to Jackson for the surgery?
A. I was just about out. I didn’t know nothing hardly.
Q. And it was pretty much a constant thing?
A. It was tough. It was tough. I had to be handled like a baby nearly.”

Although it is true that “development of the injury” as construed by the cases means something more than the initial occurrence of pain, it is also true that it does not mean definite diagnosis by a physician. Wallace v. Remington Rand, Inc., supra; Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir. 1970); Guillory v. Maryland Casual ty Company, 227 So.2d 620 (La.App. 3rd Cir. 1969). Development of the injury refers to the time it becomes manifest to an employee that he will no longer be able to pursue gainful employment.

We think the facts indicate that it was manifest to plaintiff in November of 1974 that he could not return to gainful employment. We therefore do not find error on the part of the trial court in determining that the manifestation took place in November of 1974. Plaintiff’s claim prescribed in November of 1975, one year after the manifestation, and consequently, suit filed on March 24, 1976, was untimely.

For the above reasons we affirm the judgment of the district court at appellant’s costs.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Dorothy Louise Fisher FOWLER v. M. J. FISHER and Grace Fisher.
    No. 50115.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Lawrence W. Rabb, Meridian, for appellant.
    Bourdeaux & Jones, Thomas D. Bour-deaux, Charles C. Pearce, Meridian, for ap-pellees.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Dorothy Fowler brought suit alleging that her father’s will, which had been probated in common form, was the product of undue influence and made without testamentary capacity. The cause was tried before a jury in the Chancery Court of Laud-erdale County. At the close of contestant’s case, the trial court sustained a motion to exclude the evidence and directed a verdict for the proponents of the will. The contestant appeals contending the trial court erred in denying a jury trial in a will contest, in granting a directed verdict and in suppressing evidence in limine. The issues are:

1. Is a jury’s verdict merely advisory in a will contest in chancery?

2. Was there sufficient evidence of testamentary incapacity and undue influence to be submitted to the jury?

3. Did the court err in sustaining a motion in limine restricting testimony on undue influence?

I.

THE ROLE OF A JURY IN A WILL CONTEST IN CHANCERY

At the conclusion of the contestant’s case, the proponents of the will moved to exclude the testimony on the lack of testamentary capacity and undue influence and to direct a verdict upholding the will. The court prior to sustaining the motion stated:

. This Court is conscious of the province of the jury to decide certain issues, but it is also the province of this Court and the duty of this Court to either accept the jury’s finding or not accept it. The jury in Chancery Court, according to my understanding of the law, is purely advisory, is not binding on the court in any respect.

And:

. Therefore, the Court could not allow the issue or the question of mental capacity to even be submitted to the jury because under the facts we have had up to this point, the Court would have to override that verdict if they decided otherwise.

The proper role of a jury in chancery court has long been a subject of debate in Mississippi. See Griffin v. Jones, 170 Miss. 230, 154 So. 551 (1934) [Chief Justice Smith dissenting]; Griffith, Mississippi Chancery Practice, § 597 n.. 17 (2d ed. 1950).

Three statutes appear to be controlling on the present facts. The first, Mississippi Code Annotated section 11-5-3 (1972) provides in part as follows:

Issue may be tried by a jury.
The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried to be made up in writing. . . . (Emphasis added.)

The second, Section 91-7-29, states:

Trial of issue deyisavit vel non.
On the trial of. such issue, the proponent of the will shall have the affirmative of the issue and be entitled to all the rights of one occupying such position. The witnesses shall be examined orally before the jury, except where in the circuit court depositions would be admissible; and the testimony taken on the probate of the will shall be admissible if the witnesses who delivered it be dead, out of the state, or have since become incompetent. (Emphasis added.)
Sources: Codes,. 1880, § 1971; 1892, § 1825; 1906, § 2000; Hemingway’s 1917, § 1665; 1930, § 1612; 1942, § 508.

The third, Section 91-7-23, provides in part:

Validity contested in two years.
Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not. .

The first case to consider the role of a jury in chancery after passage of the general statute (Section 11-5-3) in its present form Was Carradine v. Carradine, 58 Miss. 286 (1880). On allegation of error for refusal to grant a jury trial, this Court first ruled that no question of fact was presented, but went on to state that “the granting of a jury trial in the chancery court where no statute prescribed one, is always discretionary with the chancellor.” (58 Miss, at 293. Emphasis added.) Subsequent interpretations of the statutory language “necessary and proper to be tried by a jury” left to the chancellor’s discretion the decision of a jury trial being necessary and proper but limited the discretion to those occasions when no statute required a jury trial. Studdard v. Carter, 120 Miss. 246, 82 So. 70 (1919). Significantly, those cases which did not expressly contain the limitation, apparently did so by implication. See First State Bank v. Lincoln, 97 Miss. 720, 53 So. 387 (1910), a case involving a bankruptcy accounting, which omitted the language restricting the chancellor’s discretion to cases not statutorily requiring a jury, but found no statute requiring a jury trial.

Other decisions hold that when a jury is discretionary, no proper complaint could be made to error in the jury instructions because the chancellor could either submit the issue to a jury or decide the issue himself. See Pittman v. Lamb, 53 Miss. 594 (1876), and Studdard v. Carter, 120 Miss. 246, 82 So. 70 (1919), which stated the following:

While the chancellor has the power to set aside a jury verdict in cases where jury trial is not granted by statute, and decide it in accordance with his own conception of the truth of the facts in issue, he will ordinarily not do so unless in his judgment the jury’s finding is manifestly wrong; and, where a jury’s verdict is approved by the chancellor by rendering judgment thereon, this court will not reverse for misdirection of the jury unless we could say that the facts did not support the verdict, or unless we were convinced from the whole record that the chancellor misconceives the law applicable to the case.
(120 Miss, at 255, 82 So. at 72)

More recent decisions have indulged this rule only to issues where a jury trial was not required by statute. Cases containing “since grant of a jury trial is wholly discretionary, the court may disregard the finding of the jury when made . . . ” noted that a jury trial was discretionary and not mandated. Laub v. Reason, 217 Miss. 475, 64 So.2d 637 (1953), determination of conflicting claims to realty; Griffin v. Jones, 170 Miss. 230, 154 So. 551 (1934), in equity on replevin damages.

We think these cases illustrate that while a chancellor may deny a jury trial, disregard the verdict of the jury, or not be subject to error due to erroneous instructions, that each category is based upon the premise that a jury trial was not required by statute. These restrictive interpretations indicate that a chancellor’s discretion is not as broad where a jury trial is mandated.

The question remains — to what extent is a chancellor’s discretion limited in a jury trial required by statute?

The issue of devisavit vel non in common law was traditionally sent from chancery to the circuit court for jury determination of the factual issues. Asay v. Hoover, 5 Pa. 21, 45 Am.Dec. 713 (1846). Early Mississippi chancery procedures tracked the common law in submitting factual issues on wills to a jury in circuit court. Hutchinson’s Code (1848), ch. 49, Art. 1(29) [the forerunner of § 91-7-23] specified that a will contest “shall be tried by a jury in the circuit . court . . . or in the court of chancery as the chancellor shall direct, whose verdict shall be final between the parties saving to the court a power of granting a new trial, for good cause as in other trials . . . (Emphasis added.)

The language in later statutes has varied somewhat; however, the requirement of a jury trial on devisavit vel non has remained consistent. Moreover, the current wording of Mississippi Code Annotated section 91 — 7— 29 (1972), “The witnesses shall be examined orally before the jury, except where in the circuit court depositions would be admissible . . .” (Emphasis added.) implies that the rules applicable on the issue of devisavit vel non are the usual rules of a jury trial in circuit court. This interpretation is consistent with prior versions of the statute which stated, “the evidence in such cases shall be produced as in circuit courts . ” [Miss.Code (1880) § 1971] and “a jury . . . verdict shall be final between the parties, saving to the court a power of granting a new trial ... as in other trials.” Hutchinson’s Code (1848), ch. 49, Art. 1(29). Additionally, this Court has indicated that a jury verdict in a will contest is not “merely advisory.” In Shee-han v. Kearney, 82 Miss. 688, 21 So. 41 (1896), in reversing because a peremptory instruction was granted, we stated:

. This was peculiarly a case for the jury, under proper instructions from the court, as to the law. A verdict for either party, on this testimony, should not have been disturbed by the court . Facts are for the jury, the triers of issues of fact. .
(82 Miss, at 689, 21 So. at 41)

Also, in Woodville v. Pizzati, 119 Miss. 442, 81 So. 127 (1919), the following appears:

. The testimony on behalf of the contestant was sufficient to put the issue of undue influence to the jury and, if believed by the jury, makes out a case. This issue of fact is solely one for the jury to pass on, and their findings in this case should not be set aside.
(119 Miss, at 456, 81 So. at 129)

It is argued, however, that a jury trial in chancery is merely advisory either because (1) since 1880 the words “the verdict of the jury shall be final” have been omitted from the will contest statute or (2) Section 159 of the Mississippi Constitution (1890) vests in the chancery court full equity jurisdiction, thereby empowering the chancellor to make final decision of fact. Griffith, Mississippi Chancery Practice, § 597 n. 17 (2d ed. 1950).

The phrase, “the verdict of the jury shall be final” was indeed omitted from the Code of 1880 and subsequent codes; however, in determining the intention emanating from the omission, consideration need be given to the time of the occurrence. Prior to 1880, Section 1099 of the Code of 1871 (Will Contest statute) specified “the verdict of the jury shall be final between the parties to the issue, saving the right to grant new trials as in other cases. . . . ” A literal interpretation of these words could connote absolute finality to a jury verdict saving to the chancellor only the authority to grant a new trial for other reasons. Yet, in 1879 in Broach v. Sing, 57 Miss. 115, Justice Campbell, who was then revising the 1871 Code and who in 1880 omitted the above language in his revision, when confronted with the issue of whether it was error to sustain a demurrer to the evidence, held:

A demurrer to the evidence on the trial of an issue devisavit vel non is admissible.
(57 Miss, at 116)

Based on this exception to a jury verdict’s finality, the more likely interpretation of the omission, we think, was to clarify that a verdict in a will contest was to have the same role as in a court of law and be the subject of rules of law concerning directed verdicts and peremptory instructions.

The contention of the appellees that the fact-finding function of a jury in chancery contravenes the constitutional grant of equity jurisdiction is not persuasive in a will contest. While it is true that the chancery court has jurisdiction in all matters of equity, Mississippi Constitution (1890), section 159(a), and matters testamentary and of administration, Section 159(c), it does not follow that implementation of these constitutional provisions by statutory enactments for jury trials in any way lessens the jurisdiction of the chancery court. The language of Mississippi Code Annotated section 91-7-23 (1972), “An issue shall be made up and tried as other issues,” and that of Section 91-7-29, “The witnesses shall be examined orally before the jury,” rather than diminishing equity jurisdiction, merely continues the common law practice of jury determination of factual issues. Asay v. Hoover, 5 Pa. 21, 45 Am.Dec. 713 (1846); and Whitfield v. Rogers, 26 Miss. (4 Cush-man) 84 (1853).

Other cases have perhaps indicated, but not held, that a jury in a will contest is advisory. An examination of them, however, removes the inference. In Darby v. Arrington, 194 Miss. 123, 11 So.2d 220 (1942), the unsupported statement, “nor can we assent to appellant’s contention that the issue of devisavit vel non was required to be tried to a jury,” was dictum inasmuch as the case involved a collateral attack upon a will which had been previously probated in solemn form. Neither does Wall v. Wail, 30 Miss. 91 (1855), support the premise that a jury’s verdict is advisory. It holds only that the question of whether a writing was a deed or a will was a question of law requiring no resolution of fact by a jury.

Other cases have withheld the issues of undue influence or testamentary capacity from the jury, not on the theory of being advisory, but rather where as a matter of law the contestant’s evidence when considered as true together with all reasonable inferences, created no issue for jury resolution. Ellis v. Ellis, 160 Miss. 345, 134 So. 150 (1931); Barnett v. Barnett, 155 Miss. 449, 124 So. 498 (1929); and Scally v. Wardlaw, 123 Miss. 857, 86 So. 625 (1920). And, in jury trials in courts of law we have stated in ruling on directed verdicts, peremptory instructions and judgments notwithstanding the verdict that the judge is not permitted to substitute his judgment of the facts for that of the jury, but may consider only evidence that is not in conflict. “The jury resolves conflicts of fact— the court resolves issues of law arising from nonconflicting facts.” Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975), and cases collated at 656-657.

We conclude that the role of a jury in a will contest is the same as that of a jury in a civil trial in a court of law and is not “merely advisory.”

II.

THE DIRECTED VERDICT

Applying the customary standards on a motion for a directed verdict, was there sufficient evidence, conceding its truth and reasonable inferences, to overcome the presumption of validity of the will arising from its probate?

Without contradiction the psychiatric staff of East Mississippi State Hospital conducted an examination of the testator at the time of the will’s execution and testified that he was then competent to make a will, but the record also reveals a qualified psychiatrist gave his opinion in testimony that based upon an examination of the record the testator was incompetent to make a will. Other testimony discloses the testator had been committed to institutions for mental illness in 1947,1959,1964,1972, and was on leave from the mental institution at the time the will in question was executed. Additionally, there was testimony the testator had been certified as incompetent and had a conservator appointed for him because of his inability to conduct his business affairs.

There was also testimony that he was on medication for manic-type depressive illness at the time the will was made. We make no judgment regarding which evidence was credible nor the weight it merited, but we are of the opinion on the evidence presented, with its inferences, there was an issue of fact sufficient to require resolution by a jury.

Without detail, the same circumstances exist as to the issue of undue influence. Of some significance is the testimony that the testator resided with the proponents and to a degree was dependent upon them, was taken to their attorney by the proponents and a favorable will to them resulted. Again, we make no judgment on the credibility or weight of the evidence, but only state that in our opinion an issue was made for jury determination,

III.

THE MOTION IN LIMINE TO EXCLUDE EVIDENCE

After the trial began on November 15, 1976, the proponents served on the contestant a motion in limine and requested its disposition without previous notice. The effect of the motion, when granted, was to exclude “any testimony or documentary evidence relative to the administration of the estate of J. E. Fisher and of the actions of M. J. Fisher or Grace Fisher in regard to the property of J. E. Fisher or of his estate.” Under the contestant’s theory of the case, as evidenced by her sworn bill of particulars, M. J. and Grace Fisher harbored a hostile attitude to the financial interest of the testator by contesting his entitlement to the entire estate of his deceased brother J. E. Fisher. From this, if we understand contestant’s theory, the proponents would not likely be the natural object of the testator’s bounty absent undue influence.

Not having a sufficient record before us, we make no determination on the merits of the order granting the motion in limine. However, since the case is to be remanded for a new trial, we think it appropriate if the motion is renewed, the contestant should be afforded sufficient notice to permit time for preparation to resist. See, Griffith, Mississippi Chancery Practice, §§ 404-405 (2d ed. 1950).

REVERSED AND REMANDED.

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

      . Justice Campbell was appointed to revise the Code in 1878, 1878 Mississippi Laws ch. 86, §§ 1-4. His revision was accepted in 1880, 1880 Mississippi Laws ch. 1, §§ 1-4. See also Skates, A History of the Mississippi Supreme Court 1817-1948 at 66 (1973).


text:
    Mitchell FALVEY v. STATE of Mississippi.
    No. 50067.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Guy & Dowdy, C. Wayne Dowdy, McComb, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before INZER, P. J., WALKER and BROOM, JJ.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, LEE and BOWLING, JJ., concurring.


text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY v. Frank FARRIS, Mrs. Lorene Farris and Government Employees Insurance Company.
    No. 50107.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Aultman, Pope, Aultman & Tyner, Lawrence C. Gunn, Jr., Hattiesburg, for appellant.
    Heidelberg, Sutherland & McKenzie, D. Gary Sutherland, Hattiesburg, for appel-lees.
    Before SMITH, P. J., and LEE and BOWLING, JJ., and HOWARD R. PIG-FORD, Commissioner.
   Appeal from Chancery Court, Perry County; John M. Dunnam, Chancellor.

APPEAL DISMISSED WITHOUT PREJUDICE AS HAVING BEEN IMPROVIDENTLY GRANTED.


text:
    VAUGHN & BLACK CONTRACTING COMPANY, INC. v. Minnie JOHNSON and James Hallie.
    No. 49854.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    J. W. Kellum, Sumner, for appellant.
    Luckett, Luckett, Luckett & Thompson, Clarksdale, for appellees.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Coahoma County; J. C. Feduccia, Judge.

AFFIRMED.


text:
    Raymond A. WRIGHT v. STATE of Mississippi.
    No. 50072.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Herbert W. Wilson, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., ROBERTSON and SUGG, JJ., and JOHN C. LOVE, Commissioner.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

AFFIRMED.

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


text:
    NORTHEAST MISSISSIPPI COCA-COLA BOTTLING COMPANY, INC. v. C. W. SANDERS.
    No. 49366.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Richard B. Booth, Aberdeen, Tubb, Stevens & Morrison, Thomas J. Tubb, T. Murray Tubb, West Point, for appellant.
    Michael Malski, Amory, Gary L. Carna-than, Tupelo, for appellee.
    Before PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., and JACK B. WELDY, Commissioner.
   Appeal from Circuit Court, Monroe County; L. T. Senter, Jr., Judge.

AFFIRMED.

BOWLING, J., took no part.


text:
    EMMCO INSURANCE COMPANY v. H. D. BOUDROAUX.
    No. 49796.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    King & Spencer, Robert W. King, Jackson, for appellant.
    George D. Runnels, Magee, for appellee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

AFFIRMED.

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


text:
    The ARMSTRONG RUBBER COMPANY and Liberty Mutual Insurance Company v. James D. ANDERS.
    No. 49680.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Daniel, Coker, Horton, Bell & Dukes, Jackson H. Abies, III, Roger C. Clapp, Jackson, for appellants.
    Gwin & Gwin, Lucien C. Gwin, Jr., Natchez, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   Appeal from Circuit Court, Adams County; Lenox L. Forman, Judge.

REVERSED AND THE ORDER OF THE WORKMEN’S COMPENSATION COMMISSION, AS AMENDED, REINSTATED.

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


text:
    In the Interest of Ricky A. TUBBS by Richard Allen Tubbs.
    No. 50112.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Brown & Stanfield, Percy Stanfield, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   Appeal from Youth Court, Yalobusha County; Kermit R. Cofer, Chancellor.

AFFIRMED IN PART AND REMANDED.

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


text:
    Charles W. JONES v. Judith B. JONES.
    No. 49945.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    John L. Hatcher, Cleveland, for appellant.
    Levingston, Jacks, Levingston & Land, Alfred A. Levingston, Cleveland, for appel-lee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

AFFIRMED IN PART, REVERSED IN PART.

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


author: FAULKNER, Justice.

text:
    W. E. COWDEN v. Fred M. HUGHES.
    SC 2511.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    James B. Morton of Morton & Evans, Birmingham, for appellant.
    Hugh A. Nash of Nash & Walker, Oneon-ta, for appellee.
   FAULKNER, Justice.

Cowden brought a bill to quiet title against Hughes, who also brought a bill to quiet title by counterclaim. After a hearing ore tenus, the Circuit Court of Blount County found that Hughes had purchased the property at a tax sale in 1961, had obtained and recorded a duly executed and acknowledged tax deed from the judge of probate in 1964, and, since then had adversely possessed the property for ten years, a period of time in excess of three years as required under Tit. 51, § 295, Code of Alabama 1940.

Where the trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed unless palpably wrong. Lott v. Keith, 286 Ala. 431, 241 So.2d. 104 (1970); Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965). There is ample evidence to support the trial court’s finding of three years adverse possession.

Cowden is barred by Tit. 51, § 295, supra, from redeeming the property sold at the tax sale since Hughes was in continuous adverse possession for three years after he became entitled to demand a tax deed from the judge of probate. Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972); Family Land & Investment Co., Inc. v. Williams, 273 Ala. 273, 138 So.2d 696 (1962).

The decree of the trial court is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Senia MORTON v. CHRYSLER MOTORS CORPORATION, a corp., and Car Center, Inc., a corp., d/b/a Roebuck Chrysler Plymouth Imperial.
    SC 2545.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      James C. Pino of Leo E. Costello, Birmingham, for appellant.
    J. Pat Hardy, Jr., Birmingham, for Chrysler Motors Corp.
    Anthony L. Cicio, Cicio & Nolen, Birmingham, for Car Center, Inc.
   TORBERT, Chief Justice.

Senia Morton appeals from an order of dismissal of the Circuit Court of Jefferson County which was entered March 14, 1977. Appellees, Car Center, Inc., and Chrysler Motors Corporation, have filed motions to dismiss this case for failure to timely file the appeal. We are persuaded by the arguments of appellees and therefore must dismiss the case without review of the merits.

On November 6,1973 Morton purchased a new Chrysler automobile from appellee, Car Center, Inc., doing business as Roebuck Chrysler-Plymouth Imperial. A written “Retail Buyers Order,” which purported to disclaim any warranties upon the car, was given to Morton at the time of her purchase. A separate written warranty was later mailed to her by appellee, Chrysler Motors Corporation.

Problems developed with the new car which necessitated returning the automobile to Car Center on several occasions for repair work. Morton subsequently filed suit against Car Center only, alleging misrepresentation and breach of warranty on the sale of the car. She later added Chrysler Motors Corporation as a “necessary” or “indispensable” party under Rule 19 of the Alabama Rules of Civil Procedure, without alleging any independent wrongdoing on its part.

On December 10, 1974 summary judgment was granted in favor of Car Center based upon the disclaimer provisions found in the Retail Buyers Order. The trial court entered the following upon the case docket sheet and also upon the motion itself:

“12-10-74. The plaintiff not resisting, the foregoing motion for summary judgment is granted. A summary judgment is granted in favor of the deft., Car Center, Inc., a corporation, doing business as Roebuck Chrysler, Plymouth, Imperial, and said party is dismissed as a deft, in this action.”

No appeal was taken from this order.

On September 3, 1975 Morton filed an amendment to her original complaint, charging Chrysler Motors Corporation with breach of an implied warranty of merchantability. Chrysler Motors Corporation thereafter filed a motion for summary judgment based upon its written warranty. The motion was argued and granted by the trial court on July 7, 1976. This court order, which was also written on both the docket sheet and the motion, stated the following:

“7 July 1976 Motion of the defendant, Chrysler Corporation, is well taken and the same be and is hereby granted.”

No appeal was taken from this second order.

On February 25, 1977, this case was set for trial by notation on the case docket sheet. Shortly thereafter, on March 14, 1977, the following docket entry was made by the presiding judge:

“March 14, 1977. It appearing that summary judgments have heretofore been rendered in favor of all defendants in this action and that all of said defendants have been dismissed as parties defendant to this action, all costs are taxed against the plaintiff.”

On April 21, 1977 Morton filed notice of appeal to this court from the March 14, 1977 order.

Appeals to this court lie only from final judgments. Tit. 7, § 754, Code of Alabama 1940 (Recomp.1958). The test of finality of a judgment or decree to support an appeal is whether such judgment or decree “ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated or necessarily involved in the litigation.” McClurkin v. McClurkin, 206 Ala. 513, 514, 90 So. 917, 918 (1921).

It is clear that the March 14, 1977 order of the trial court was not a final judgment sufficient to support an appeal on the merits. It did not adjudicate the rights and liabilities of the parties, but simply noted past actions taken in the case and routinely taxed costs to the losing party. Further, this order did not enlarge the time limit to appeal the case on the merits. The entry of a judgment and the taxation of costs are entirely separate legal acts and the entry of a judgment will not be delayed for the taxing of costs. Ala.R.Civ.P. 58(c).

The December 10, 1974 summary judgment order in favor of Car Center was also not final for purposes of an appeal. On that date, Chrysler Motors Corporation still remained as a party in the suit. Rule 54(b) of the Alabama Rules of Civil Procedure provides that, in the absence of an express order to the contrary, no judgment is final where multiple parties and multiple claims are involved in an action until the rights and liabilities of all parties in the case have been adjudicated. Therefore, an order granting summary judgment in favor of one of two defendants is not a final judgment and will riot support an appeal unless the trial judge makes an express determination and entry of judgment as required by Rule 54(b). Nelson-American Developers, Ltd. v. ENCO Eng. Corp., 295 Ala. 185, 326 So.2d 103 (1976); Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974). See also Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975), in which the history of Rule 54(b) is traced.

It is the position of the appellees that the July 7, 1976 order granting summary judgment in favor of Chrysler Motors Corporation was the final judgment in this case from which Morton should have taken her appeal on the merits. Thus, the central question to be answered is whether, in an action against multiple defendants, the granting of a motion for summary judgment in favor of the last remaining defendant constitutes a final judgment from which the forty-two day time for appeal to this court runs, even though the trial court fails to enter a single order dismissing the entire action and taxing costs at that time. We find that it does.

The July 7, 1976 order, like the earlier summary judgment order, contained neither an express direction for entry of judgment as required by Rule 54(b) where multiple parties are involved, nor a recitation of the earlier order dismissing Morton’s claim against Car Center. However, on July 7, 1976, only one defendant remained in the action and, as multiple parties were no longer involved in the matter, Rule 54(b) had no further application to a trial court order adjudicating Morton’s claim against Chrysler Motors Corporation. As noted by the appellees, this result is in accord with several federal cases which have held that Rule 54(b) of the Federal Rules of Civil Procedure has no application to a judgment once all claims against all parties have been adjudicated. Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973); Johnston v. Cartwright, 344 F.2d 773 (8th Cir. 1965); Marotta v. Milestone, 114 U.S.App.D.C. 237, 314 F.2d 242 (1963); Lundgren v. Freeman, 292 F.2d 489 (9th Cir. 1961). .

The July 7, 1976 order itself, except for the application of Rule 54(b), was a final judgment with respect to Morton’s claim against Chrysler Motors Corporation. Phrased in clear and simple language, the order indicated the trial court’s intention to adjudicate as well as the substance of the adjudication. Rule 58(c) and the committee comments thereto of the Alabama Rules of Civil Procedure provide that such a judgment is effective when it is either noted in the civil docket, as in the present case, or on separately maintained bench notes, or upon the filing of a separate judgment or order. Further, absent a request for post judgment relief, the time limitation in which to attack such a judgment runs from the occurrence of any of the above specified events. Ala.R.App.P. 4(a)(1); Ala.R.Civ.P. 58(c) and committee comments thereto.

Thus, the July 1976 order, taken in conjunction with the previous order, constituted a complete adjudication of the rights and liabilities of all parties to the action. The order of December 10, 1974, became appeal-able on that date as did the July 7, 1976 order itself. Notice of appeal not being filed by Morton until April 21, 1977, this appeal is untimely and is therefore dismissed.

APPEAL DISMISSED.

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


author: FAULKNER, Justice. SHORES, Justice

text:
    In re Eddie JONES, Jr. v. ALABAMA STATE BAR. Ex parte Eddie Jones, Jr.
    SC 2671.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Houston L. Brown of Davis & Brown, Birmingham, for petitioner.
    Eddie Jones, Jr., pro se.
    William H. Morrow, Gen. Counsel, Alabama State Bar, Montgomery, for respondent.
   FAULKNER, Justice.

Eddie Jones, Jr., petitioned this court for a writ of mandamus compelling his admission to the Alabama State Bar Association under the “diploma privilege” of Title 46, § 26, Code 1940. Because he would have been admitted to the Bar under the “diploma privilege” if he had attended and graduated from the University of Alabama Law School instead of an out-of-state school, Jones asks us to hold that he should now be admitted to the practice of law in this state under the “diploma privilege.” We deny the writ.

Jones, a resident of Alabama, graduated from law school at Howard University in Washington, D. C., in 1957. He alleges that since the State of Alabama provided no legal education for members of the black race in 1953, when he began law school, he was forced to attend an out-of-state school. Jones has unsuccessfully taken the bar examination four times: February, 1958; July, 1958; February, 1959; and July, 1975. He also made applications to the Bar Commissioners to sit for the examination a fourth time in November, 1961, March, 1967, October, 1969, and June, 1972. Each application was denied. In October, 1972, he was a named plaintiff in an action in federal court, unsuccessfully seeking, inter alia, admission to the Bar under the “diploma privilege.”

The State Bar Association argues that Jones’ requested relief is barred by the one-year statute of limitations of Tit. 7, § 26, Code of Alabama 1940. We disagree. This statute of limitations has no application here. We agree with a statement made in In re Evans, 42 Utah 282, 130 P. 217 (1913), wherein the court stated:

“The summary jurisdiction which the court has over its attorneys as officers of the court is also invoked. That jurisdiction is inherent, continuing, and plenary, and exists independently of statute or rules of equity, and ought to be assumed and exercised as the exigencies and necessity of the case require, not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys.”

This court has the inherent power to govern admissions to the bar. Board of Com’rs of the Alabama State Bar v. State ex rel. Baxley, 295 Ala. 100, 324 So.2d 256 (1976). This power is not only inherent and plenary; it is continuing. While this court could, if it desired, set a limitation on when a person, otherwise qualified, must apply to be licensed to practice law in this state, there is no such rule now in existence.

We hold that Jones cannot be given the right to practice law because of the so-called “diploma privilege.” While we appreciate the fact that Jones’ decision not to apply to attend the University of Alabama Law School may have been influenced by the laws and customs in force during the 1950’s, we cannot say that had he applied, his application would have been refused because of his race. Moreover, we cannot assume that he would have graduated had he been admitted to the University of Alabama Law School. Therefore, we cannot waive the requirements and grant him a license to practice law based on the “diploma privilege.” (We point out that all out-of-state law school graduates have always been required to take and pass the Alabama Bar exam, before being granted a license to practice law in Alabama.)

This court, by order dated November 30, 1977, has provided that Jones can, if he so desires, take the bar exam again in February, 1978.

This court has under advisement an amendment to Rule IV(D) which would permit an applicant to take the bar examination a total of five times.

The writ is denied.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, MADDOX, ALMON, EMBRY and BEAT-TY, JJ., concur.

JONES and SHORES, JJ., concur specially.

SHORES, Justice

(concurring specially):

I agree with the majority that the petitioner should not be admitted to the Bar under the diploma privilege. I also agree that he may take the bar examination again by this court’s order dated November 30, 1977. However, I think he is entitled to pursue one other avenue toward admission to the Bar.

Mr. Jones attended and successfully completed his legal education at an approved law school outside the State. He was graduated from that institution in 1957. At that time, such persons were admitted to practice law in this State either by passing the bar examination or by completing one year’s work at the University of Alabama School of Law, then the only accredited law school in the State. Unless both of these alternatives are available to this petitioner, it cannot be said that he has had a11 of the alternatives available to others. Because this court has the inherent power to govern admissions to the Bar, I would allow this petitioner to be admitted to the Bar if he successfully completes one year’s work at one of the accredited law schools in the State of Alabama.

JONES, J., concurs.

      . Tit. 46, § 26, was amended in 1961 so that the “diploma privilege” would “. apply only to graduates of the law department of the University of Alabama who, having been students there on or before August 31, 1961, graduate therefrom on or before August 31, 1965, and to no others.” Tit. 46, § 26, Code 1940 (1973 Supp.).

      . Jones did not apply for admission to the University of Alabama School of Law. Rather, he asserts that because of the social and political climate of the times, such application would have been futile.

        .Parrish v. Board of Commissioners, 505 F.2d 12 (5th Cir. 1974), withdrawn 509 F.2d 540 (5th Cir. 1975), affirmed and remanded on rehearing, 524 F.2d 98 (5th Cir. 1975), reversed and remanded, 533 F.2d 942 (5th Cir. 1976). (All on other grounds).
      We pretermit discussion of the res judicata effect of the federal decisions since we do not have the benefit of the record in that case.


author: WRIGHT, Presiding Judge.

text:
    ANONYMOUS v. ANONYMOUS.
    Civ. 901.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1977.
    Rehearing Denied Feb. 23, 1977.

      John W. Cooper, Cooper & Huey, Birmingham, for appellant.
    Thomas L. Foster, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a divorce and child custody case. The husband filed suit for divorce and custody of a 29-month-old daughter, charging adultery of the wife. The wife filed cross-suit for divorce and custody of the child. The judgment granted divorce to the husband upon finding of fact that the wife was guilty of adultery. Custody of the child was granted to the paternal grandparents with visitation periods by the mother to be determined by the grandparents. The wife appeals. We affirm.

There are several issues presented by the appeal; however, it is primarily contended that the evidence was insufficient to establish adultery by the wife and her unfitness to have custody of the child. Our discussion of these two issues will necessarily encompass some of the other stated issues.

There are nearly eight hundred pages of the transcript in this case. We see no value to parties, counsel, or precedent, in stating the testimony in detail. We find that there is ample legal evidence with reasonable inference to support the finding that defendant was guilty of adultery during, at least, the month preceding the filing of the husband’s suit for divorce. Such finding, accompanied by the presumption of correctness of the judgment of the trial court after oral hearing, completes the duty of this court in our review of the issue of the insufficiency of the evidence to support the judgment.

Briefly stated, the evidence supportive of the charge of adultery is as follows: Wife was a surgical nurse at the Veterans’ Administration Hospital in Birmingham, Alabama; she worked with several other nurses and with physicians who were either residents or interns at the University of Alabama Hospital; she worked a shift usually beginning at 7:00 A.M. and ending at 3:00 P.M.; often she left home at 5:00 to 5:30 A.M., leaving the husband and child sleeping; in February, 1975 wife and another nurse, using the aid and name of a physician friend, surreptitiously leased an apartment near the Medical Center for one year; they shared payment of the rent; in January, 1976 wife, acting alone, renewed the lease for another year, signing the name of the wife of the physician who originally aided in securing the lease; the physician did not know of such act nor did he have a wife at the time; wife brought various personal articles from the apartment she shared with her husband to the leased apartment, including a T.V. set; the husband was unaware of the wife’s lease of a second apartment; husband became suspicious of the activities of wife and began to follow her and check on her whereabouts when she left home and left the child in his care; her absences became longer and more often in March of 1976; she purported to be visiting friends in and out of town; one such trip was supposed to be to Huntsville for the weekend, but her car was observed parked near the leased apartment; the odometer reading on her car before and after the trip showed a difference of only 15 miles; husband and an investigator observed her automobile and one of the same make and appearance as that of her alleged lover parked at the apartment; on another occasion wife and a man were observed coming from the apartment and kissing on the walk; the wife and her last alleged lover were found together in the apartment when service of husband’s suit was made; when called as a witness by husband and when taking the stand as her own witness, wife repeatedly invoked the privilege of the Fifth Amendment of the U.S. and Alabama Constitutions when questioned as to her activities and sexual relationships with several married physicians; those physicians all claimed the privilege when deposed or appearing on the stand; wife’s nurse friends also claimed the privilege when questioned as to their knowledge of her actions. (We are unable to determine how the nurses were entitled to the privilege when they were questioned as to their knowledge concerning the activities of the wife and not their own acts.) Wife admitted smoking marijuana on various occasions including in her home when the child was sleeping.

We reiterate that what we have related is not all the testimony. We have set this small summary out to indicate that there is legal testimony together with inferences reasonably drawn, which fully support the finding of the trier of fact that the wife was guilty of adultery. That finding being supported by legal evidence, this court after full review of the testimony, cannot say the trial court was in error.

The wife contends that the claiming of the privilege against self-incrimination may not be considered against her. She cites criminal cases as precedent. These are not applicable to civil cases. It is the law that the refusal or failure of a party, when present at trial, to testify to a fact in issue is a matter which may be brought to the attention of the trier of fact. Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908); Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). It further raises a presumption that it would operate against him. Kirkland v. Kirkland, 236 Ala. 120, 181 So. 96 (1938).

It was said in Morris v. McClellan, supra, as follows:

“The plaintiff in a civil action has rights as well as the defendant; and one of these rights is to secure evidence to support his cause in court, even to calling upon the defendant as a witness to supply it. It has always been the rule in civil actions that the failure of a party to the suit, when present at the trial, to testify as to a fact in issue, furnished legitimate ground of comment in argument to the jury by the opposite party. The defendant availed himself of his constitutional right of refusal to answer on the ground stated, and he had his benefit and protection from prosecution in exercising his privilege; but he could not expect to extend this privilege to the deprivation of the plaintiff of his right to comment in argument on his silence, no matter upon what ground he might put it.” 154 Ala. 639 at 653, 45 So. at 646.

In this case the record does not disclose to what extent, if any, the refusal of defendant to answer numerous questions upon the ground of privilege against self-incrimination was considered by the trial court. The circumstantial evidence against her was sufficiently strong, standing alone, to support the finding of her guilt. So the argument that the court committed prejudicial error in permitting witnesses to be examined repetitively when they were claiming the privilege against self-incrimination is largely moot. As previously stated, we are unable to determine how the witnesses were entitled to privilege in many instances when questioned as to their knowledge of the acts of the wife. The privilege is personal and must be claimed in each instance. Long v. O’Mary, 270 Ala. 99, 116 So.2d 563. It is only by presenting the question that the right to privilege may be determined. Ex parte Blakey, 240 Ala. 517, 199 So. 857. We find no prejudicial error in regard to the issue of privilege.

The issue of error in awarding the custody of the 29-month-old girl to the paternal grandparents is not easily answered. We recognize the difficulty of the trial court’s decision. Though the mother has been guilty of adultery, that is not necessarily determinative of her right to custody of the child. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965). However, it is a circumstance to be considered in seeking the pole star of the matter — the best interest of the child. In re Brill v. Johnson, 293 Ala. 435, 304 So.2d 595 (1974). This court has, in recent cases, followed the principle enunciated by the line of cases of which Anonymous v. Anonymous, supra is representative. Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489, cert. denied, 294 Ala. 759, 317 So.2d 492 (1975); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214 (1975). We quickly concede that there is another line of cases decided by the Supreme Court of Alabama of which Hanby v. Hanby, 229 Ala. 527, 158 So. 727 (1935) is representative. The principle of those cases is that a finding of adultery of the wife is conclusive as between the parties of her relative unfitness to have the care and custody of the child. Johnson v. Johnson, 215 Ala. 487, 111 So. 207 (1927).

It is only possible for a trial court to consider the facts and circumstances in each case and using its experience and best judgment decide what custodian will best serve the present and future welfare of the child. That decision weighs heavily upon the conscience of the court, for there is no guarantee of its absolute correctness. This court in reviewing the decision is not free to substitute its judgment for that of the trial court. Harrell v. Long, 49 Ala.App. 322, 272 So.2d 248 (1973).

It is only after determination that the judgment, in light of the facts, the law and a presumption of correctness, is palpably wrong, that this court has the right and responsibility to reverse. Anonymous v. Anonymous, supra. We must hold in this case that we are unable to make such determination.

Wife presents the action of the court in granting custody of the child to the paternal grandparents when they were not parties to the action as error. We do not agree. This court stated in the case of White v. Appleton, 53 Ala.App. 702, 304 So.2d 206 (1974) that it was not necessary for a grandmother to be a party to receive custody. The relationship of the court to the child in a custody action is like no other case. When the jurisdiction of the court is properly invoked, the child immediately becomes the ward of the court. Murphree v. Hanson, 197 Ala. 246, 72 So. 437 (1916). It is not a case to be decided by niceties of pleading. Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212 (1948). It is the duty of the court to determine the best interest of the child, giving due consideration to the inherent rights of parents. White v. Appleton, supra.

In this case, the court determined that the mother had been shown by the evidence to be morally unfit to have custody of her child. There had been testimony as to the home and character of both sets of grandparents. There had even been inquiry by the court as to the willingness of the grandparents to accept custody. The parties had notice that the court was giving some thought to the custodianship of the grandparents. No material question is presented as to the fitness of the grandparents to have custody.

This court does not endorse nor necessarily approve the involvement of persons in the judgment who were not parties. However, we can see no injury when the party complaining has been determined from the evidence to be personally unfit to have custody and there is evidence of fitness of the grantee of custody before the court.

It is charged that it was error for the court to have conducted in camera interrogation of the grandparents.

The court states in its judgment that it had post-trial conferences with the parents of both parties. There is no other reference to such occurrence in the record. The wife in brief states it was done without consent of the attorneys. The husband in brief states that it was done with consent of wife’s counsel. There being no record of impropriety, this court will assume the trial court acted properly.

The court feels that it has already sufficiently discussed the matter raised by wife’s issue IV. That is, the finding that the plaintiff sustained the burden of proof by the great weight of the evidence. Such finding by the trial court was not necessary to its judgment. However, if that was its judgment, we discern no error in so stating. It is not the role of this court in reviewing the judgment of a trial court after oral hearing to determine whether such judgment is sustained by the great weight of the evidence. We have previously stated herein that we look only for support of the judgment by credible evidence. Anonymous v. Anonymous, supra. The weight of the evidence is determined by the trial court. Massengale-Ma-naster Poultry Co. v. Burnett, 284 Ala. 465, 225 So.2d 869 (1969).

Did the court err in its division of property, failing to order support for the child, and failing to award attorney fees to the wife? We hold it did not err in any of those aspects.

The judgment went to great length to specify in detail a division of personal property. There was only personal property of such nature as automobiles, furniture, clothing and wedding gifts. The court attempted to divide these items according to origin as stated by the parties. We find no abuse of the court’s discretion. Pettis v. Pettis, 334 So.2d 913 (Ala.Civ.App.1976).

We know of no mandatory requirement that a court direct payment of child support in every case. There was no testimony as to the failure or denial of support by the father or the need for an order under the custody provisions. The question of support is never closed during the minority of the child. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969). Should the need for an order be shown to the court, it may take appropriate action. Donald v. Donald, 50 Ala.App. 9, 276 So.2d 436 (1973).

The evidence shows that the wife is employed and earns as much or more than the husband. The matter of attorney’s fee for the wife is for the discretion of the trial court. Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704 (1976). The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    In re ANONYMOUS v. ANONYMOUS. Ex parte Anonymous.
    SC 2394.
    Supreme Court of Alabama.
    Aug. 12, 1977.

      John W. Cooper of Cooper & Huey, Birmingham, for petitioner.
    Thomas L. Foster, Birmingham, opposed.
   BLOODWORTH, Justice.

We granted certiorari to review petitioner’s claims of error in the Court of Civil Appeals’ decision, 353 So.2d 510, in approving an in camera conference between the trial judge and the maternal and paternal grandparents, and in approving an award of custody by the trial judge to the paternal grandparents, who were nonparties.

The Court of Civil Appeals’ opinion, 353 So.2d 510, with respect to the in camera conferences held:

“The court states in its judgment that it had post-trial conferences with the parents of both parties. There is no other reference to such occurrence in the record. The wife in brief states it was done without consent of the attorneys. The husband in brief states that it was done with consent of wife’s counsel. There being no record of impropriety, this court will assume the trial court acted properly.” [Our emphasis.]

With respect to the award of custody to the nonparty paternal grandparents, the Court of Civil Appeals, 353 So.2d 510, held:

“This court does not endorse nor necessarily approve the involvement of persons in the judgment who were not parties. However, we can see no injury when the party complaining has been determined from the evidence to be personally unfit to have custody and there is evidence of fitness of the grantee of custody before the court.”

Petitioner’s arguments are twofold. First, petitioner contends that the in camera conference between the judge and the maternal and paternal grandparents was reversible error because she had no notice of the conferences, and, therefore, no opportunity to object. Second, petitioner contends that the award of custody of the minor child to nonparties was violative of her due process rights in that she had no notice the nonparties were being considered for custody and no opportunity to be heard on that issue.

Respondent, on the other hand, contends that petitioner consented to the in-chambers interview by the judge with the non-parties. In support of this, respondent has attached affidavits of both the judge and respondent’s attorney. Respondent further contends that petitioner was fully aware of the possibility that the judge might award custody of the child to the paternal grandparents, since both sets of grandparents testified that they would be willing to take custody of the child. Therefore, respondent argues, petitioner did have notice and an opportunity to be heard and her due process rights were not violated.

At the close of the case, the judge made the following statement: “Two or three things that I want to do before I make a decision in the case. The first thing that I want to do right now, as soon as we walk out of the Court Room, is to have the two parties alone in chambers with me if there’s no objection on the part of counsel.” (Our emphasis.) Respondent’s affidavits state that the judge requested an interview with the maternal and paternal grandparents. Petitioner’s affidavits deny this, and point to the above-quoted portion of the record to support their argument.

Alabama has long recognized that judges may conduct in-chambers interviews with minor children, who are the subject of divorce custody proceedings, [Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722 (1974); Hagler v. Hagler, 50 Ala.App. 266, 278 So.2d 715 (1973)], provided that the judge has first notified the parties of his intention to do so, and the parties have either expressly consented to the interview or failed to object after notice thereof. Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722 (1974).

In the case at bar, there are a number of distinguishing factors. First, and perhaps most important, the record fails to disclose any reference to the judge’s intention to have a conference with the grandparents in chambers. Thus, of course, the record is silent as to any objection on the part of the petitioner to such proceedings. Furthermore, an interview with minor children is not at issue; here, the trial court conferred with the child’s grandparents.

Our decisions, in explaining the rationale behind “in-chambers” colloquies with minor children have said this: “[T]he private examination of children in such cases, no doubt, [is] more helpful in obtaining full and frank disclosures from them than if examined as ordinary witnesses.” Ruck v. Ruck, 265 Ala. 29, 32, 89 So.2d 274, 276 (1956). [Emphasis added.]

Certainly, a child’s grandparents may have an important contribution to make to the court’s determination as to the child’s best interest. However, this contribution must be made in open court unless the parties agree otherwise.

Respondent contends that petitioner was fully cognizant of the judge’s intention to interview the grandparents, and he has included two affidavits supporting his position. Petitioner has also offered affidavits supporting her contention.

It has long been the rule in Alabama that this Court is bound by the record. Birmingham Southern R. Co. v. McDonald, 339 So.2d 1004 (Ala.1976); Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976). Ex parte affidavits of the kind in question, not being a part of the record, cannot be considered by the Court. Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So.2d 90 (1963).

“To allow parties to file for the first time in the Supreme Court ex parte affidavits giving evidential support to an alleged error that does not appear in the record proper would leave this court open to a deluge of new issues being raised for the first time oh appeal.” Id. at 654, 158 So.2d at 94.

Respondent then contends that Rule 47, ARAP, authorizes the use of these affidavits. That rule states:

“No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby; provided, however, agreements made in open court or at pretrial conferences are binding, whether such agreements are oral or written.” [Our emphasis.]

We may say here that this rule is a rewriting of former Supreme Court Rule 20, which stated the requirement that private agreements between parties or their attorneys must be in writing and signed by the party to be bound thereby. Although the old rule contained no specific provision authorizing the use of agreements made in open court or at pre-trial conferences, Alabama has long recognized and approved of their use. See e. g., Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411 (1953); Samuels v. Scott, 212 Ala. 679, 103 So. 848 (1925); Prestwood v. Watson, 111 Ala. 604, 20 So. 600 (1895).

This rule has no application here, however. As has been stated, former Supreme Court Rule 20, which made no mention of allowing oral agreements made in open court, was construed in such manner that their validity was sometimes recognized nonetheless. It was reasoned that courts necessarily act upon such agreements daily and that the refusal to recognize their validity would delay the transaction of court business and would cause unneeded time and expense for the parties and their attorneys. See e. g., Prestwood v. Watson, 111 Ala. 604, 20 So. 600 (1895). See generally “Stipulations—Form Requirements,”1 A.L. R.3d 1394.

While Rule 47, ARAP, explicitly adopted this practice, it is still necessary that the oral agreement be made in open court. There is nothing of record to show this alleged agreement was so made.

New York’s statute regarding stipulations is virtually identical to Alabama’s. It explicitly provides for agreements made in open court. The term “open court” has been explained thusly by the New York courts:

“Judicial proceedings in ‘open court’, wherever held, including chambers of course, and informal conferences in chambers or robing rooms or even a courtroom are manifestly disparate. Even before full reporting in open court became universal in courts of record, the formality, publicity, and solemnity of an open court proceeding marked it as different from the preliminary atmosphere attached to informal conferences elsewhere. Moreover, the proceedings in open court would always have some formal entries, if only in the clerk’s minutes, to memorialize the critical litigation events. In the latter days, it has also meant an available full transcript beyond dispute and the fallibility of memory.”

In re Dolgin Eldert Corporation, 31 N.Y.2d 1, 334 N.Y.S.2d 833, at 840, 286 N.E.2d 228 at 233.

We think this is a correct interpretation of the term. We also think that this definition negatives respondent’s contention that the alleged oral agreement is within the ambit of this rule. For here, there is no record of the alleged agreement in the court reporter’s transcript, nor on the docket sheet nor in the minute entry, and the appended affidavits evidence a dispute, not an agreement. Where, as here, there is a dispute and the agreement is not shown of record to have been made in open court, the rule has no applicability.

We turn now to petitioner’s contention that the award of custody of the minor child to the nonparty paternal grandparents, without notice to petitioner and an opportunity to be heard, was a denial of due process.

Although this clearly appears to be a question of first impression in Alabama, we are not bereft of any guidelines. In the very recent case of Thorne v. Thome, 344 So.2d 165 (Ala.Civ.App.1977), a husband had filed a petition against his former wife seeking modification of his visitation rights with his children. The former wife had been granted custody in the divorce decree. At the close of the hearing, the court asked the husband’s second wife if she felt that she and the husband could look after the children if they were placed in their permanent care and custody. She responded in the affirmative. The judge then asked if she felt this would be in the children’s best interest, and she responded that she did not know. In its final judgment, the court changed the custody from the wife to the husband and gave the wife the same visitation period which had formerly been given the husband. The court made this change although change of custody was not an issue in the case.

The Alabama Court of Civil Appeals held, and we think properly so, that the mother had been denied due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution, when the trial court changed custody of the child from the mother to the father without notice to her and an opportunity to litigate the issue. In so holding, the court (speaking through Judge Bradley) concluded that the “parental right to due process far outweighs any burden that would be placed on the proceeding to determine that right.” Id. at 171. We think the Thorne opinion is well written, well reasoned and eminently correct. We follow it in this case.

The petitioner here likewise has been denied due process of law guaranteed by both the state and federal Constitutions. The issue of custody was the issue before the court, but the custody dispute centered around and was focused upon, the parties. During the trial, both the paternal and the maternal grandparents were asked hypothetically if they would be willing to take custody of the child and all replied they would. However, they were not parties to the case, and it cannot be said that the petitioner had notice and an opportunity to be heard, the hallmarks of due process, regarding this issue. However, respondent argues that the questions directed to the grandparents put petitioner on notice that award of custody to one of the sets of grandparents was an issue. A similar contention was made and rejected in Thorne, supra, viz:

“. . . The first indication to either party that custody of the children might be an issue was when, at the close of the father’s evidence, the trial judge asked the father’s present wife whether she thought it would be in the best interest of the children to be removed from the mother’s custody. The mother contends this was not adequate notice to her of the custody issue and therefore she was denied due process of law. We agree.
“The question is not whether a trial judge, sitting in equity to determine rights as between parents which affect the welfare of their minor children, can grant relief for which neither party asked, but rather whether the judge can grant different relief without giving the parents adequate notice and an opportunity to be heard.” Id. at 168.

The court went on to recognize the equity court’s wide discretion in proceedings involving the welfare of children, viz:

“. . . the equity court’s discretion is not unlimited or arbitrary, but rather subject to the limitation that the court may not act contrary to the best interest of the child.
“There is another limitation placed on an equity court in exercising its discretion in child custody disputes between parents, and that is the right of the parents to due process of law in the proceedings. . . . ” Id. at 168-69.

It is thus we reverse the Court of Civil Appeals’ decision, with directions to remand this cause to the trial court for a hearing solely on the question of custody with due notice and an opportunity to be heard to be accorded all parties, original and those who may be joined after remand.

We are certain that any in camera conference between parties and the court on remand will only take place with approval of the parties or without objection from them in accordance with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.

      . Nothing we say should be taken to mean that the record can never be corrected on appeal. See Rule 10(f), ARAP. Cf. Cockrell v. Ferrier, 375 F.2d 889 (5th Cir. 1967); 9 Moore’s Federal Practice ¶ 210.08(1), pp. 1646-49.


text:
    ANONYMOUS v. ANONYMOUS.
    Civ. 901
    Court of Civil Appeals of Alabama.
    Sept. 7, 1977.
    Rehearing Denied Oct. 26, 1977.
   WRIGHT, Presiding Judge.

Upon remand to this court by the Supreme Court of Alabama, the judgment of this court, entered January 20, 1977, 353 So.2d 510, is hereby set aside and the judgment of the trial court granting divorce to the husband upon the ground of adultery is affirmed. Judgment as to the custody of the minor child is reversed and the matter is remanded to the trial court for further hearing and consideration of the question of custody after due notice and opportunity to be heard is afforded all parties now joined or who may be properly joined hereafter.

At the request of appellant, she is hereby granted $1,000.00 as a reasonable attorney fee on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

Certiorari denied, Ala., 353 So.2d 520.


text:
    Ex parte ANONYMOUS.
    SC 77-138.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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