author: PER CURIAM. PER CURIAM.

text:
    J. William WOLF et al., Appellants, v. Mallory H. HORTON, as receiver for Industrial Guaranty Bancorp, et al., Appellees.
    Nos. 75-20, 75-21.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Rehearing Denied Dec. 3, 1975.
    Order Enforcing Mandate Feb. 6, 1976.
    Heiman & Heiman, and Judith H. Hayes, Miami, for appellants.
    Gunn, Venney & Buhler, Miami, Frank, Strelkow & Gay, Miami Beach, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is the consolidation of an appeal' and an interlocutory appeal by defendants, J. William Wolf, Pearl M. Wolf, Fred B. Wolf, Sylvia S. Wolf, Allan M. Wolf, Frederick Frankel, Gerald Kasher, Anne Schulman, Bertha Schulman and Ida G. Cohen, and joined by the plaintiff, Mallory H. Horton, as receiver of Industrial Guaranty Bancorp. The appellants seek review of an order awarding attorneys fees and costs to Frank, Strelkow & Gay, the appellees, for services rendered in an action based on a petition for interpleader in the Dade County Circuit Court filed on behalf of Industrial Guaranty Bancorp. The petition for interpleader was filed before Horton was appointed receiver by the federal court.

We have carefully studied the record of this complex litigation involving in excess of thirty-five named parties, and it is our conclusion that the order awarding attorneys fees must be reversed on several grounds.

First, it was the attorneys themselves and not the client, who sought the fees. The attorneys are not entitled to a direct award of attorneys fees. Rather, attorneys fees are to be claimed by, and awarded to, the interpleading party on behalf of his attorney. This is set out in 18A Fla.Jur., Interpleader § 21, as follows:

Where interpleader is sought by a corn-filed in good faith, the complainant is entitled to his costs from the fund held by him. And where the complainant is in no sense responsible for the controversy necessitating the interpleader suit, is free from fraud, reaps no benefit whatever from the result of litigation, is solely interested in distributing the fund, and is merely a disinterested stakeholder, a judgment awarding attorneys’ fees to him is proper . . . (emphasis added)
Where interpleader is sought by a complainant for his own protection, he is not entitled to either costs or attorneys’ fees. So, where the party seeking interpleader is not a disinterested party or an innocent stakeholder, he is not entitled to recover attorneys’ fees. And a plaintiff in an interpleader proceeding is not entitled to attorney’s fees where the bill of inter-pleader is brought by him after the filing of a suit against him by one of the defendants in the interpleader proceedings.”

The attorneys, then, do not qualify under this rule of law. The complainant was Industrial Guaranty Bancorp, not the attorneys. Therefore, any award of attorneys fees would be to Industrial Guaranty Ban-corp, the original plaintiff, or its successor, the receiver for Industrial Guaranty Ban-corp. The receiver, however, did not apply for any award and, in fact, opposed the award in the trial court as well as here. An attorney’s right to fees, if such are awardable to a party, is merely derivative from the party’s right, and the party’s attorney has no right and no standing to request fees in opposition to his client’s wishes. Compare Hope v. Lipkin, Fla.App. 1963, 156 So.2d 659; Simkins v. Simkins, Fla.App.1971, 249 So.2d 444. The attorney’s duty is to represent his client and not his own interest and he cannot, contrary to his client’s wishes, attempt to recover a fee for himself in the same action in which he performed services for that client. See, for example, United States Savings Bank v. Pittman, 1920, 80 Fla. 423, 86 So. 567.

Second, this case did not proceed to a final judgment in interpleader, or to any final judgment. The interpleader action was voluntarily dismissed by the receiver since the matter was pending in the federal district court, which had assumed to take exclusive jurisdiction of the entire cause, including the res. The attorneys themselves then successfully moved the Dade County trial court to vacate the dimissal entered by the receiver, and filed a claim for attorneys fees which was granted while the cause was also pending in the federal court.

Third, assuming that this is a true interpleader action, it is not necessary that in every interpleader action the court award attorneys fees to the interpleading plaintiff. Ellison v. Riddle, Fla.App.1964, 166 So.2d 840, 841. In order to be entitled to such an award, a plaintiff must prove his total disinterest in the stake he holds other than that of bringing it into court so that conflicting claims thereto can be judicially determined. The plaintiff must also show that he did nothing to cause the conflicting claims or to give rise to the peril of double vexation. Ellison v. Riddle, supra. See also Davis v. Davis, Fla.App. 1974, 301 So.2d 154, 157. It does not appear from the record on appeal that these elements have been proven.

For the reasons stated and on the authorities cited, the order awarding attorneys fees is reversed.

Reversed.

ORDER ENFORCING MANDATE

PER CURIAM.

On consideration of the appellees’ motion to enforce the mandate of this court wherein it appears that the trial court failed to follow the dictates of such mandate and pursuant to the power of this court to enforce its mandate, the trial court’s order, dated December 2, 1974, awarding attorneys fees and costs be and the same is hereby vacated and the cause is dismissed without prejudice.

It is so ordered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Francis X. SEMINO, Appellant (Petitioner), v. Alison K. SEMINO, Appellee (Respondent).
    No. Y-322.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 5, 1975.
    J. Russell Hornsby, Orlando, for appellant.
    John R. Godbee, Jr., DeLand, for appel-lee.
   PER CURIAM.

Upon considering the briefs, record and oral arguments, we find no reversible error. Accordingly, the final judgment is

Affirmed.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


text:
    Bernard James BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-119.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Rehearing Denied Dec. 1, 1975.
    Miller & Russell, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. State v. Sebastian, Fla.1965, 171 So.2d 893; State v. Cullen, Fla.1971, 253 So.2d 861; State v. Baker, Fla.1973, 276 So.2d 470; McArthur v. State, Fla. App.1974, 303 So.2d 359; Rubiera v. Dade County ex rel. Benitez, Fla.1974, 305 So.2d 161.


text:
    Alfred ARONOVITZ, as Trustee, Appellant, v. STEIN PROPERTIES, a partnership, Appellee.
    No. 74-1606.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Rehearing Denied Dec. 3, 1975.
    Aronovitz & Weksler, Miami, for appellant.
    Philip J. Mandina, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant trustee, defendant in the trial court, brings this appeal from a final judgment of the trial court awarding appellees, plaintiffs below, a money judgment pursuant to a deposit receipt contract.

On April 11, 1974, appellees filed a complaint in the Circuit Court of Dade County wherein the name of the plaintiff was set forth as “Stein Properties, a partnership.” This was the only description of the plaintiff in the complaint. The record further shows that the name Stein Properties was not registered pursuant to § 865.09, Fla. Stat., F.S.A., the Florida Fictitious Name Statute.

Among the several assignments of error set forth by appellant are two which we feel are dispositive of this appeal. First, appellant contends that the trial court erred in failing to grant his motion to dismiss the complaint due to appellees’ failure to register the name Stein Properties as required by the Fictitious Name Statute and, two, that the trial court erred in allowing the cause to proceed to trial where only the partnership, i. e., Stein Properties, was named as plaintiff in the complaint.

Section 865.09(3), Fla.Stat., F.S.A., provides that it shall be unlawful for any partnership to engage in business in this state under a fictitious name unless such name is properly registered with the clerk of the circuit court of the county in which its principal place of business is located. Section 865.09(5), Fla.Stat., F.S.A., provides that the penalty for the failure to comply with this law shall be that neither the business nor the members nor those interested in doing such business may maintain suit in any court of this state as a plaintiff until this law is complied with.

Here it is undisputed that Stein Properties was a partnership doing business in this state and we find that the name “Stein Properties” is a “fictitious name” as that term is defined in § 865.09(2) (b), Fla. Stat., F.S.A., because it did not reasonably reveal the names of the partners to appellant. Therefore, since the record shows that Stein Properties was not registered under the Fictitious Name Statute, it may not maintain a suit in any court of this state as plaintiff. However, the failure of appellees to comply with the statute does not prevent the trial court from taking jurisdiction of the cause, but it does act as an inhibition against allowing appellees to prosecute their complaint until the requirements of the statute are met. Payne v. Payne, Fla.App. 1967, 201 So.2d 590; Mileage Realty Co. v. Miami Parking Garage, Inc., Fla.App.1962, 146 So.2d 403; Cor-Gal Builders, Inc. v. Southard, Fla.App.1962, 136 So.2d 244; see 1962 Op.Att’y Gen. 062-112, and 1957 Op.Att’y Gen. 057-283; and cf. Cruse v. Wilson, Fla. § 1957, 92 So. 2d 270.

Secondly, appellant contends that a partnership cannot sue in its company or firm name, but must sue in the names of the individuals comprising it. As stated above, the complaint filed by appellees designated only “Stein Properties, a partnership” as the plaintiff. We agree with appellant’s contention.

Since the common law does not recognize a partnership as a legal entity distinct from and independent of the persons composing it, a partnership cannot, as such without statutory authority, sue in its firm name. All actions by a partnership must be brought in the names of its individual members. Johnston v. Albritton, 1931, 101 Fla. 1290, 134 So. 563; I. Epstein & Bros. v. First Nat. Bank, 1926, 96 Fla. 796, 110 So. 354; and 24 ;Jur., Partnership, § 191. Even though our Legislature in 1972 adopted the Uniform Partnership Act, § 620.56 et seq., Fla.Stat., F.S.A., we can find no authority in the Act which would permit a partnership to sue in its firm name. In the instant case, since each partner had an interest in the deposit receipt contract sued on arising out of a partnership transaction, each partner was an indispensable party to the complaint seeking its enforcement. Therefore, the trial court should have granted appellant’s motion to dismiss for failure to join an indispensible party.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is reversed and remanded for further action not inconsistent with this opinion.

Reversed and remanded.


author: SCHEB, Judge.

text:
    TRIMEX CORPORATION and Maclin R. Milner, Appellants, v. Connie D. VOSS et al., Appellees.
    No. 74-1076.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 8, 1975.
    Richard T. Bennison of MacKenzie, Cas-tagna, Bennison & Gardner, Clearwater, for appellants.
    Norman Bie, Jr., Clearwater, for appel-lees.
   SCHEB, Judge.

The trial court entered a judgment holding the Appellants Trimex Corporation and Maclin R. Milner, jointly and severally, liable to Appellee Connie D. Voss in respect to certain loans by appellee to Gulf Marketing, Inc. We affirm the judgment against Trimex and reverse the judgment against Milner.

The operative facts are:

Gulf Marketing, Inc. was a corporation formed in 1966. Milner, its president, together with his wife, owned 44 percent of its stock. Milner and Johnston were co-owners of certain patents to an anti-pollutant product called Trimex, being promoted by that corporation. In 1969, Gulf Marketing borrowed funds from the Appellee Connie D. Voss; this indebtedness being represented by two notes in the aggregate principal sum of $25,000. Appellee Voss testified that she loaned the money to Gulf Marketing because of the potential sales appeal of the product being developed from the Trimex patents. She relied on representations made by her ex-husband, David Voss, who was assisting Milner in raising capital for Gulf Marketing. In addition she mentioned one phone call in which she talked to Milner. From Milner’s testimony it appears some minor portion of these funds were disbursed for payment of his expenses, some of which could be construed as personal to him.

Milner and Johnston, co-owners of the Trimex patents, then transferred their patents to the Trimex Corporation, a corporation formed in January 1970, “to get some other vehicle that was debt free and put the patent rights into it.” Milner was president of Trimex and owned 51,000 of its 109,000 shares.

David Voss, then vice president of Trimex Corporation, testified that the corporation made every possible effort to pay Gulf Marketing’s obligations. It made some interest payments on the indebtedness due Appellee Voss by decision of Milner and David Voss. Milner signed corporate checks to make these payments; however, the. Board of Directors later disapproved and charged these checks against Milner’s draw. Milner testified that Trimex never assumed any of the obligations of Gulf Marketing.

Over appellant’s objection, Appellee Voss introduced a copy of a letter which contained an admission that Trimex Corporation had assumed some of Gulf Marketing’s debts. Also over appellant’s objection, an accounting sheet called “Trimex Corporation — adjusting entries,” was admitted into evidence. This accounting statement was prepared by one George Kicklighter, a C.P.A. who was a Director of Trimex and who, according to David Voss, was vested with all of Trimex’s account activities. This statement showed the assumption by Trimex Corporation of certain liabilities to appellee Voss and others. Appellants argue against admission of the latter document on basis that a sheet marked “adjusting entries” cannot be admitted in the absence of the entries being adjusted. We are aware of no authority for this proposition and cannot find that the trial court abused its discretion in this regard. Mastan Co. v. American Custom Homes, Inc., Fla.App.2d, 1968, 214 So.2d 103.

Irrespective of the letter containing an admission that Trimex Corporation had assumed certain indebtedness of Gulf Marketing, which letter may have been improperly admitted into evidence, there was competent substantial evidence from which the trial court could properly conclude there had been an assumption by Trimex Corporation of Gulf Marketing’s notes to Appellee Voss. While the corporate machinations involved in this case are somewhat obscure, still the testimony of Appellee Voss, the financial statement, and the part payments by Trimex Corporation are probative of an assumption by Trimex. An assumption of debts can be raised by reasonable implication where the evidence as to the facts and circumstances surrounding the transaction is susceptible to that conclusion. 19 Am.Jur.2d, Corporations, §§ 1549-50.

Accordingly, we find no basis for disturbing the trial judge’s conclusion as to the judgment entered against Trimex Corporation.

The appellee alleged in her complaint that Milner, along with his wife, Mary L. Milner, transferred assets from Gulf Marketing to Trimex Corporation and to themselves on a preferential basis in violation of Fla.Stat. § 608.55. Clearly, these allegations were not established. At the conclusion of the hearing the appellee agreed that a judgment could not be entered against Mary L. Milner. But appel-lee, during the trial, attempted to show that Maclin R. Milner had fraudulently conveyed assets of Gulf Marketing contrary to Fla.Stat. § 726.01. Appellants continually objected to evidence being offered in respect to any violation of Fla. Stat. § 726.01 on the grounds that such an issue was outside the pleadings. This issue was not raised by the pleadings and was not tried by the express or implied consent of the parties. The appellants may well have been prejudiced in maintaining their defenses under these circumstances. See, RCP 1.190(b). It is not necessary, however, to premise our decision as to liability vel non of Milner on this point. A careful review of the evidence, while revealing that some minor portion of the funds loaned by appellee may have inured to Milner’s personal benefit, fails to disclose any transfers contrary to Fla.Stat. § 608.-55, and also fails to reveal evidence of any fraudulent conveyances in violation of Fla.Stat. § 726.01 which could have the effect of making Milner personally liable on Gulf Marketing’s obligation to Appellee Voss. There is no competent substantial evidence on which the trial judge could have imposed a personal liability against the Appellant, Maclin R. Milner. Accordingly, the judgment against Milner must be reversed.

Affirmed in part; reversed in part.

BOARDMAN, A. C. J., and STOKES, ROBERT G., Associate Judge, concur.


text:
    Willie B. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-234.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Rehearing Denied Dec. 3, 1975.
    Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Turner v. State, Fla. App.1974, 298 So.2d 559; Garmise v. State, Fla.App. 1975, 311 So.2d 747 and Brown v. State, Fla.1971, 245 So.2d 68; Sadler v. State, Fla.App. 1969, 222 So.2d 797.


text:
    Carmen PEDONE et al., Appellants, v. FONTAINEBLEAU CORP., a Florida Corporation d/b/a Fontainebleau Hotel and Cosmopolitan Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 75-14.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Rehearing Denied Dec. 1, 1975.
    Caiden, Rothenberg, Kogan, Kornblum & Benjamin, Miami, for appellants.
    Pyszka, Kessler, Adams & Solomon, Richard Gale, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The plaintiffs, Carmen Pedone, mother of Nitto Pedone, deceased, and Edmundo Potts, administrator of the deceased’s estate, appeal from a directed verdict in favor the defendants, Fontainebleau Corporation, d/b/a Fontainebleau Hotel and Cosmopolitan Mutual Insurance Company, granted during a jury trial at the close of the plaintiffs’ case. This action stems from the fatal drowning of Nitto Pedone in the Fontainebleau Hotel’s swimming pool.

On the afternoon of June 24, 1971, Nitto Pedone and a high school friend, Raymond Diaz, who worked as a part-time helper in the kitchen of the Fontainebleau, walked from the public beach up to the Fontaine-bleau Hotel pool deck, took off their T-shirts and went into the pool. After being in the water for approximately 30 to 45 minutes, Raymond, feeling uncomfortable, since he knew that employees were not allowed to swim in the pool, got out. Nitto, who had been hyperventilating to stay under the water for longer periods of time, remained in the pool. A few minutes after leaving the pool, Raymond heard a commotion. Nitto had been observed face down in the pool and had been pulled out. After some 15 minutes of attempted resuscitation, according to a doctor present at the time, there was no appearance of life. Suit was filed against the hotel for negligence for alleged failure to have lifeguards and adequate safety equipment and failure to exercise care required under the circumstances. The matter proceeded to a jury trial. Following the plaintiff’s case, the trial judge directed a verdict in favor of the defendant hotel.

The plaintiffs raise three points on appeal. (1) A land owner is liable to a trespasser for injuries sustained by him as a result of the active negligence of the land owner where the presence of the trespasser is known or should be known to the land owner. (2) Nitto was an invitee and not a trespasser at the time of his death since when he came upon the hotel premises he “befriended” two young guests of the hotel. (3) The court erred in refusing to admit into evidence the Florida Department of Health and Rehabilitative Services, Division of Health, Rules and Regulations regarding swimming pools and bathing places.

As to the first point raised on appeal, the unwavering rule as to a trespasser is that the property owner is under the duty only to avoid willful and wanton harm to him and upon discovery of his presence to warn him of known dangers not open to ordinary observation. Hix v. Bitten, Fla. 1973, 284 So.2d 209; Wood v. Camp, Fla.1973, 284 So.2d 691. From the record, there is no evidence suggestive of any willful or wanton intent on the defendants’ part, nor is there evidence in the record to show that the defendants knew or should have known of the presence of Nit-to Pedone. In fact, Raymond Diaz testified that he and Nitto took their shirts off and went right into the water and they stayed in the water so that no one would be able to see and identify them. They deliberately attempted to conceal themselves to avoid discovery and ejection from the premises. Nitto was a trespasser and there is no reason to impose a greater duty of care on the hotel than that imposed by law.

The second and third points raised by the appellants are also not well taken. In the context of the facts presented, we find that Nitto’s conversation with two hotel guests did not change his status from trespasser to invitee. We also find no error in the trial court’s refusal to admit into evidence the Department of Health swimming pool rules since the only duty the hotel owed to Nitto as a trespasser, was to refrain from committing a willful or wanton injury to him.

For the reasons stated, and upon the authorities cited, the judgment herein appealed is affirmed.

Affirmed.


text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. James KASSNER et al., Appellees.
    No. 75-35.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Rehearing Denied Dec. 3, 1975.

      Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appellant.
    Levine, Helman & Reckson, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant in the trial court, brings this appeal from a final judgment entered in favor of appellees, plaintiffs below, awarding them money damages pursuant to a business interruption insurance policy.

Appellees are a partnership engaged in the manufacture and sale of maternity clothing. Their main office and manufacturing plant is located in Opa-Locka, Florida. Appellees also own or operate approximately forty retail stores located throughout the United States. The major portion of the garments manufactured at the Opa-Locka plant are shipped by appel-lees to their own retail stores. Such shipments are not recorded as sales on the books of the partnership, but are indicated as transfers of inventory. Other garments are sold to unaffiliated third party retailers.

On August 1, 1971, the Opa-Locka facilities suffered extensive damage from a fire caused by lightning striking the premises. As a result, appellees’ manufacturing operations were stopped for a period of thirty days and appellees filed a claim under their business interruption insurance policy carried with appellant. Appellant disagreed with appellees’ assertion of the extent of the loss and the method to be used in determining the damages. Appellees then filed suit against appellant seeking the maximum coverage of $50,000 under the policy. On November 22, 1974, a final judgment, after a jury trial, was entered awarding appellees $50,000. From this judgment, appellant brings its appeal.

Appellant contends that the trial court erred by failing to give a requested jury instruction containing a definition of the word “sale” under the Florida law of sales, when the meaning of that word was in conflict and a pivotal issue in the case. Appellees contend that loss of gross earnings, defined in their insurance policy with appellant as the total net sales value of production, is not determined by the technical rules of the law of sales and that the trial judge did not err by failing to give the requested jury instruction.

The insurance policy in question is a standard Form 5 Business Interruption Policy. It insured against a loss of gross earnings from business interruption and defined gross earnings when the insured’s income is derived principally from its manufacturing operations as the total net sales value of production less certain items of expenses.

Appellant’s request for the jury instruction defining “sales” arose out of its contention in the trial court that transfers of ♦merchandise manufactured by appellees to their own stores were not sales and that it was improper for appellees’ witness to include in his computation of the net sales value of production such merchandise transfers. If such transfers were not included in the policy formula for determining “gross earnings,” then appellees’ damages covered by the business interruption insurance policy would have been less than the $50,000 awarded in the jury verdict.

Although we are unable to find any Florida statute or case interpreting the term “net sales value of production” as that term is used in a business interruption insurance policy, it does appear that in the construction and interpretation of such policies the courts have followed and applied the recognized and accepted rules of construction and interpretation which are applicable to insurance policies generally. 44 Am.Jur.2d, Insurance, § 1694 ; 83 A.L.R.2d 885, 905; and 18A Fla.Jur.Insurance, §§ 405 and 878.

The courts have said that losses covered by this type of insurance should be determined in a practical way, having regard for the nature of the business and the methods employed in its operation, in order to give practical effect to the intentions of the parties and the purpose of the insurance as evidenced by the terms, conditions, and provisions of the policy. 18A Fla.Jur. § 878.

Applying these rules to this appeal, it is our opinion that the trial judge did not err in failing to give the jury charge requested by appellant. Appellant’s requested jury charge reads as follows:

“DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 2
“A sale consists of passing of title from the Seller to the Buyer for a price. A sale is a transmutation of property from one person to another in consideration of some price or value. It is a contract whereby the absolute or general ownership of property is transferred from one person to another for a price, or for any consideration.”
“Florida Statute 672.2-106(1): Edwards v. Baldwin Piano Co., 79 Fla. 143, 81 So. 915.”

We agree with the trial judge that a reasonable interpretation of the term “net sales value of production” does not require attributing to it the technical definition of “sale” as that term is defined in § 672.2-* 106(1), Fla.Stat., F.S.A. Further, we note the general rule that terms in an insurance policy which are ambiguous or uncertain are to be construed most strongly against the insurer and liberally in favor of the insured. Where the terms of an insurance policy may be susceptible of two interpretations, that interpretation which sustain! the claim for indemnity, or which allows the greater indemnity, should be adopted. 18 Fla.Jur., Insurance § 407.

We have considered the record, all points in the briefs and arguments of counsel in light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.


text:
    MIAMI HOLDING CORPORATION, a Florida Corporation, Appellant, v. Joseph A. MIRET and Dora Miret, his wife, et al., Appellees.
    No. 75-374.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Rehearing Denied Dec. 3, 1975.
    Ira M. Elegant, Miami Beach, for appellant.
    Horton, Perse & Ginsberg, James Fior-ica, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Miami Holding Corp. v. Matthews, Fla.App.1975, 311 So.2d 802.


author: GRIMES, Judge.

text:
    Dennis CAUGHEY, Appellant, v. Martin D. BELLER et al., Appellees.
    Nos. 74-1118—74-1121.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
    Rehearing Denied Dec. 3, 1975.

      Guillermo A. Ruiz of Ruiz & Padovano, and C. J. Abernathy, St. Petersburg, for appellant.
    Allen P. Allweiss of Allweiss & Anderson, St. Petersburg, for appellees.
   GRIMES, Judge.

Appellant (Caughey) appeals the entry of four final judgments against him which total the sum of $902,500.

The appellees were four of five policemen who each brought suit for compensatory and punitive damages alleging that he had been the subject of an assault and battery at the hands of Caughey. During the course of pretrial proceedings, Caughey was noticed for the taking of his deposition on June 21, 1974. At the request of his attorney, the deposition was rescheduled for June 28, 1974. When Caughey did not appear Tor his rescheduled deposition, the plaintiffs filed a motion to strike Caughey’s pleadings and for entry of a default judgment. This motion, together with a notice of hearing, was served on Caughey’s counsel on July 2, 1974. Caugh-ey’s counsel did not appear at the hearing which was held on July 23, 1974. Thereafter, an order was entered striking Caugh-ey’s pleadings and entering a default judgment against him in favor of all of the plaintiffs. The order further recited that the trial of the cause was set for August 19, 1974 and a copy was mailed to Caugh-ey’s counsel. On August 19, 1974, neither Caughey nor his counsel appeared, and the plaintiffs presented their case for damages to the jury pursuant to the request for jury trial contained in their complaint.

The testimony at the trial showed that officers Lange and Winch arrested an associate of Caughey’s at Red’s Tap Room in St. Petersburg Beach. The officers were then attacked by the patrons of the bar. Other policemen came to the scene to assist. During the course of the altercation, the plaintiffs were severely beaten. The record reflects that the mob appeared to be acting at the instigation of Caughey and that he personally struck Lange, Winch and Beller. The court directed a verdict for the plaintiffs for compensatory damages and instructed the jury on the law pertaining to both compensatory and punitive damages. Pursuant to the jury verdicts, judgments were entered for the plaintiffs against Caughey as indicated below :

Beller - $ 250 compensatory $200,000 punitive
Lange - $ 1,000 compensatory $250,000 punitive
Winch - $ 1,000 compensatory $250,000 punitive
Becker - $ 250 compensatory $200,000 punitive
Francis - No compensatory $100,000 punitive

Twenty-two days after the entry of the final judgments, Caughey moved to vacate the judgments. At the hearing, Caughey’s counsel informed the court that he did not appear for trial because he did not have actual knowledge of the trial. He did not deny that the order setting the trial had been received by his office. The motion was granted only to the extent of vacating the punitive damage judgment for Francis since he was found to have suffered no compensatory damages. Caughey filed timely appeals from the remaining four judgments.

Caughey does not seriously urge that the court erred in striking his pleadings and entering a default judgment against him. Rather, he complains that the court erred in failing to restrain counsel from making prejudicial and collateral arguments to the jury and in failing to vacate or modify the punitive damage awards as being excessive. He also argues that the judgment for Becker cannot stand because there was no evidence that Caughey personally assaulted or battered Becker.

The defendant against whom a default judgment has been duly and regularly entered is not entitled to notice of trial on the issue of damages. Stevenson v. Arnold, Fla.1971, 250 So.2d 270. However, such a defendant may be permitted to participate at the trial on these issues, and he is entitled to appeal the judgment or to seek to vacate it under RCP 1.540. Stevenson v. Arnold, supra. Therefore, with respect to the question of notice, Caughey actually received more than he was legally entitled when his counsel was served with a notice setting the case for trial.

Caughey objects most strenuously to statements at the trial made by the plaintiffs and their lawyer characterizing him as one of the largest illegal drug traders in Florida. Ostensibly, this matter was relevant as part of the plaintiffs’ proof of Caughey’s financial worth. Yet, the thrust of counsel’s argument was to encourage the jury to punish Caughey as much for his drug trafficking as for his part in the assaults. Had objections been timely presented, it is likely that some of the evidence presented would have been ruled inadmissible and some of counsel’s remarks would have been stricken. The fact is that no objections were made because neither Caughey nor his counsel were present. Is Caughey now in a position to complain?

Caughey has been unable to cite a Florida case in support of his position. At least in equity, the rule was often stated that on appeal from a final decree by a defendant against whom a decree pro confesso had been entered the appellate court will only review the legality of the proceedings prior to the default, though “the final decree must be proper and such as the complainant is entitled to take on his bill.” Mat thews v. Wilkerson, 1938, 132 Fla. 753, 182 So. 439; Minick v. Minick, Fla. 1933, 111 Fla. 469, 149 So. 483. In the instant case, there was no error prior to default, and the judgments which were entered were clearly within the scope of the relief sought in the complaint.

Even though a default has been entered against one of the parties, the trial judge has the responsibility to keep the proceedings within reasonable bounds in order that justice may not be subverted. Cf. Pensacola Transit Co. v. Denton, Fla. App. 1st, 1960, 119 So.2d 296. Therefore, we are reluctant to announce a rule that a party may never be granted appellate relief because of what transpires in a trial subsequent to the entry of a default against him. As it turns out, we need not reach this question because we do not find a basis in this record upon which it could be said that “fundamental error” occurred.

Caughey’s contention that Becker’s judgment cannot stand because Caugh-ey did not persona’ly assault him is also without merit. The entry of the default had the effect of admitting liability, and the record demonstrates that Caughey was directing the attack upon Becker as well as the other policemen. Likewise, Caughey cannot complain of the verdicts as being excessive, because he failed to file a motion for a new trial. Tampa Transit Lines, Inc. v. Smith, Fla.App. 2d, 1963, 155 So.2d 557; Red Top Cab & Baggage Company v. Grady, Fla.App. 3d 1958, 99 So.2d 871.

Affirmed.

McNULTY, C. J., and HOBSON, J., concur.


text:
    Stephen Richard CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. Y-59.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    William Henry CLIFTON and Kathryn I. Clifton, his wife, Appellants, v. D. J. LANAHAN LUMBER COMPANY, a corporation and Reliance Insurance Company, a corporation, Appellees.
    No. X-543.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael Paul LaMADLINE, Appellant, v. STATE of Florida, Appellee.
    No. Y-148.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Beames Lee LESTER and James Benjamin Cox, Appellants, v. STATE of Florida, Appellee.
    Nos. Y-376 and Y-377.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Jackie MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. X-490.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Carlos E. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. V-20.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Louis Fritz NATHEY, Appellant, v. STATE of Florida, Appellee.
    No. Y-31.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Noah P. TELFARE, Appellant, v. STATE of Florida, Appellee.
    Nos. V-62 and V-128.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronald John SHEEHY, Appellant, v. Carolyn Patricia Blanco SHEEHY, Appellee.
    No. 75-3.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Charlene PERRIMAN, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION et al., Appellees.
    No. 75-1434.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Janet Fay ATLAS, Appellant, v. Fred ATLAS, Appellee.
    No. 75-111.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Ralph A. BUCHMAN, Appellant, v. J. R. SIMPLOT COMPANY, INC. Appellee.
    No. 74-1286.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    George T. DRAYTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-357, 75-358.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Margaret GILLIKIN, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, formerly known as First National Bank of Miami, Appellee.
    No. 75-1288.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Clarice B. GRAHAM, Appellant, v. COMMERCIAL CREDIT CORPORATION and American Health and Life Insurance Company, foreign corporations, Appellees.
    No. Z-259.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.
   PER CURIAM.

Interlocutory appeal dismissed.


text:
    GREENHUT CONSTRUCTION COMPANY, INC., and Federal Insurance Company, Appellants, v. DEPARTMENT OF GENERAL SERVICES of the State of Florida, for the Use and Benefit of CONCRETE PRODUCTS COMPANY, INC., Appellees.
    No. X-325.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Mindy MILLER, etc., et al., Appellants, v. The BOARD OF PUBLIC INSTRUCTION OF SEMINOLE COUNTY, Florida, etc., et al., Appellees.
    No. 75-220.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Floyd MOORE, Appellant, v. STATE of Florida, Appellee.
    No. Y-89.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Sylvia Lajean MOTEN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1300.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    J. Scott PARRISH, III, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1526, 74-1527 and 74-1528.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles H. PATTERSON et ux., Appellants, v. Rosario A. CORREA et al., Appellees.
    No. 75-931.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Harding RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-636, 75-637.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Jorge L. RODRIGUEZ, Appellant, v. Louie L. WAINWRIGHT, etc., et al., Appellees.
    No. Y-8.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    SCHRIMSHER’S PLUMBING & HEATING, INC., Appellant, v. Raymond T. O’KEEFE, not individually, but as a trustee and nominee of the trustees of Chase Manhattan Mortgage and Realty Trust, a Massachusetts business trust, et al., Appellees.
    No. 75-1207.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed,


text:
    Terry Paul SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 75-419.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Michael BARISO, et al., Appellants, v. The Honorable Henry L. BALABAN, In his capacity of Circuit Court Judge (Retired), etc., Appellee.
    No. 75-485.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida ex rel. Frederick WOOGIN, Relator, v. The Honorable Ralph B. FERGUSON, Jr., as Judge of the Circuit Court of the Eleventh Judicial Circuit, Criminal Division, in and for Dade County, Florida, Respondent.
    No. 75-1522.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Earl LeRoy THOMPSON and Alfred Hayes, Appellants, v. STATE of Florida, Appellee.
    Nos. 75-372, 75-190.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Bland Mann WATERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-528.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Gary L. WILLIAMS, sometimes known as Jerry Wilson, Appellant, v. STATE of Florida, Appellee.
    No. 74-748.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Margaret R. CORR, Appellant, v. Donald Francis CORR, Appellee.
    No. 75-520.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Theodore WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-416, and 75-417.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    In the Interest of: D. P., a child.
    No. 75-1470.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1975.
   Certified question dismissed.


text:
    Steven CASPER, Appellant, v. Steven J. GREEN et al., Appellees.
    No. 75-724.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    CROSS STATE DEVELOPMENT COMPANY and Polk County Land & Title Company, Inc., Appellants, v. Danny HEMBY and Sherry Hemby, his wife, Appellees.
    No. 75-1071.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1975.
   Appeal dismissed.


text:
    INTER CONTINENTAL HOLDINGS, INC., a Florida Corporation, Appellant, v. MORRIS TRADING CORPORATION, a Florida Corporation, Appellee.
    No. 75-1559.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1975.
   Appeal dismissed.


text:
    Bereleyb KATZ and Luba Katz, his wife, Appellants, v. Molly GRAND, Appellee.
    No. 75-1087.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Richard KONTRA and Madeline F. Knotra, husband and wife, Appellants, v. Jack Wm. WINDT and Barbara S. Windt, husband and wife, Appellees.
    No. 75-713.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1975.
   Appeal dismissed.


text:
    MARYLAND CASUALTY COMPANY, a corporation, and Three D Enterprises, a Florida Corporation, Appellants, v. LEE-HO TOY d/b/a Lee-Ho Toy Chinese Restaurant, and United States Fidelity and Guaranty Company, Appellees.
    No. 75-806.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1975.
   Appeal dismissed.


text:
    M. J. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1072.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1328.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Lorenzo STATEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-850.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    John Paul STEVENS, Appellant, v. Vera A. STEVENS, Appellee.
    No. 75-789.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Andrew THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1088.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Edward D. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-166.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenny W. VARNER, Appellant, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, a corporation, Appellee.
    No. 75-651.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert Charles WARD, Appellant, v. Paul R. McCUTCHEON, Jr., Appellee.
    No. 75-616.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Kennard Daniel WHITE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-838.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Harry L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-167.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Helen A. BYKEEFER, Appellant, v. William H. SEYLER et al., Appellees.
    No. 75-59.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Appeal dismissed.


text:
    Leonard FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-470.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Appeal dismissed.


text:
    Sylvia Gail HOWELL, Appellant, v. Clifton L. HOWELL, Jr., Appellee.
    No. 75-531.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Appeal dismissed.


text:
    H H & S CONSTRUCTION COMPANY, Petitioner, v. Richard KINLEY and Jerry N. Kinley, his wife, Respondents.
    No. 75-1548.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Certiorari dismissed.


text:
    ORKIN EXTERMINATING COMPANY, INC., and Continental Casualty Company, Appellants, v. William B. NEERIERMER and Ethel I. Neeriermer, Appellees.
    No. 75-1465.
    District Court of Appeal of Florida, Second District,
    Nov. 20, 1975.
   Appeal dismissed.


text:
    Gary PAGELS, individually and as agent of the DeSoto County Classroom Teachers Association, Petitioner, v. The SCHOOL BOARD OF DeSOTO COUNTY, Florida, Respondent.
    No. 75-1007.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Certiorari dismissed.


text:
    POLK COUNTY LAND & TITLE COMPANY, INC., Appellant, v. Dewey L. HADDEN and Lucinda G. Hadden, his wife, Appellees.
    No. 75-802.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Appeal dismissed.


text:
    ROLLING OAKS CORPORATION, Appellant, v. Teresa J. KANE et al., Appellees.
    No. 75-800.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Appeal dismissed.


text:
    Henry THOMAS, Appellant, v. Norman P. CLIFTON and Mary Jane Blake Clifton, his wife, Appellees.
    No. 75-1373.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1975.
   Appeal dismissed.


text:
    CITY OF ST. PETERSBURG, Florida, Appellant, v. Maggie SINGLETON, Appellee.
    No. 75-1562.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1975.
   Appeal dismissed.


text:
    NATIONAL INDEMNITY COMPANY, Appellant, v. ALLSTATE ASSOCIATES, INC., Appellee.
    No. 75-1426.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1975.
   Appeal dismissed.


text:
    NATIONAL INDEMNITY COMPANY, Appellant, v. ANNING-JOHNSON CO., Appellee.
    No. 75-1425.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1975.
   Appeal dismissed.


text:
    NATIONAL INDEMNITY COMPANY, Appellant, v. SUNSTATE WHOLESALERS, INC., d/b/a Home Insulation Service, Appellee.
    No. 75-1427.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1975.
   Appeal dismissed.


text:
    OPINION OF THE JUSTICES.
    No. 221.
    Supreme Court of Alabama.
    Nov. 17, 1975.
   The Governor of the State of Alabama requested an advisory opinion of the Supreme Court of Alabama concerning the interpretation of language contained in an amendment to the Constitution of the State of Alabama which governed the length of time that the legislature can meet in its regular and special sessions.

Questions answered.

Honorable George C. Wallace

Governor of Alabama

State Capitol

Montgomery, Alabama 36104

Dear Sir:

The undersigned Justices of the Supreme Court acknowledge receipt of your request for an advisory opinion on the two questions presented in your letter delivered to us on Friday afternoon, November 14, 1975.

Act No. 2, Acts of Alabama, Second Special Session, 1975, submitted a constitutional amendment which was later ratified by the people. The amendment reads:

“Beginning in the year 1976 regular sessions of the Legislature shall be held annually on the first Tuesday in May, or on such other day as may be prescribed by law, and shall be limited to 30 legislative days and 105 calendar days. Special sessions of the legislature convened in the manner provided by this Constitution shall be limited to 12 legislative days and 30 calendar days.”

Your questions are as follows:

“1. In what year does the constitutional limitation of 12 legislative days begin to apply to special sessions of the legislature ?
“2. Does the 12 day constitutional limitation on the number of legislative days apply to the current special session of the Alabama Legislature, convened by my proclamation of October 11, 1975, which convened on November 3, 1975?”

Your request also shows that official action by you as required by Section 125, Constitution of Alabama 1901, is pending and your action depends upon the answers to your questions.

We answer your first question by stating that, in our opinion, the constitutional limitation applies in the year 1975. We answer your second question in the affirmative.

We have examined the legislative proceedings relating to the passage of this bill. Two amendments show, in our opinion, that the intent of the Legislature was to specifically exempt regular sessions from the operation of the amendment until 1976.

Act No. 2 originated as a bill in the Senate, was amended in the House of Representatives by changing the number of days and changing the date of submission to the voters. The bill was sent to a Conference Committee and as amended in the Conference Committee report, it was passed by both Senate and House. An amendment by the House and a Conference Committee amendment show that the Legislature did not want the amendment to apply to the regular session of 1975. They intended for the people to vote on the amendment while the Legislature was in regular session, but they did not want the new amendment to govern that regular session. So, for the first time, the words “Beginning in the year 1976” were added at the beginning of the amendment.

The amendment deals with two subjects, regular and special sessions. A separate sentence is devoted to each subject. It is clear that the provisions as to regular sessions could not apply in 1975. But no form of punctuation or wording of any sort is used in the sentence relating to special sessions.

We, therefore, opine that the amendment applies to any special session of the Legislature which came into being after the amendment was proclaimed to have been ratified as this one was prior to the calling of this present Third Extra Session of the Legislature.

Respectfully submitted,

HOWELL HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY Justices


author: ALMON, Justice.

text:
    Woodrow W. GIBSON et al. v. Walter E. TOTSCH et al.
    SC 1280.
    Supreme Court of Alabama.
    Nov. 13, 1975.

      Bailey, Taylor & Benton, Fairhope, for appellants.
    Chason, Stone, Chason & Partin, Bay Minette, for appellees.
   ALMON, Justice.

The appellees, Walter E. Totsch, et al., brought suit against the appellants, Woodrow W. Gibson and James R. Gibson, to enjoin them from maintaining any obstruction across a twenty foot strip of land on the south side of a parcel of land known as Lot 8, in Wenzel’s Partition of part of Oak River View Subdivision, located in the southern part of Baldwin County. The ap-pellees sought free access across said strip of land to Bon Secour River for themselves and other members of the public by reason of certain reservations made in deeds of conveyance prior to and including the deed of conveyance whereby the appellant obtained title to Lot 8.

The original owner, Emmett Wenzel, conveyed to Jean A. Hopkins, in May of 1949, the lot in controversy, Lot 8, with the following exception: “A strip of land 20 feet wide on the south side of said Lot (8) said «trip of land to be used for street purposes only, and to extend from the Southeast Corner of said Lot West to the water.” In November of 1952 the original owner, Emmett Wenzel, conveyed to Baldwin County the following:

“the North Ten (10) feet of Lot Seven (7) and the South Twenty (20) feet of Lot Eight (8) . . . . The purpose of this conveyance is to provide a public way to and from Bon Secour River for the owners of the land to the East of this subdivision and for the general public.”

Subsequently, Jean A. Hopkins conveyed her interest to the appellant’s predecessor in Title, John and Lucille M. Wenzel, which deed contained no exception. On November 14, 1972, the appellant, Woodrow W. Gibson, acquired title from Lucille M. Wenzel, a widow, to Lot 8 with the same exception as set out in the deed of conveyance from the original owner, Emmett Wenzel, as, follows:

“Excepting a strip of land twenty (20) feet wide on the South side of Lot 8, said strip to be used for street purposes only, and to extend from the Southeast Corner of said Lot West to the water.”

The appellants filed their answer to the complaint, which answer essentially admitted that they had erected a chain-link fence across a part of the south twenty feet of Lot 8, but they denied that the twenty foot right of access to the Bon Secour River to which the appellees were entitled had been obstructed.

Evidence was taken ore tenus. The principal issue at trial was whether the original owner intended to reserve only a strip of land wide enough at its west end to give the appellees twenty feet of access to the bank of Old Bon Secour Run or whether he intended for the north line of the twenty foot strip to run until it hit the Bon Secour River. (See appended copy of appellees’ Exhibit 1, which is identical to appellants’ Exhibit A).

A final decree was entered on February 25, 1975. The court directed the appellants to remove the chain-link fence “across or on the south twenty (20) feet of said Lot 8” and enjoined them from “in any way or manner obstructing the free and unimpeded use of the south twenty (20) feet of said Lot 8 by the public and, in particular, the owners of the land to the East of this Subdivision, as a means of access and way to and from Bon Secour River.”

The appellants’ motion for a new trial was denied.

Appellant contends that the trial court’s findings and judgment are contrary to the evidence and erroneous.

“A decree of the.trial court will not be reversed in a suit to establish a boundary line unless it is palpably wrong and contrary to the great weight of the evidence.” Varner v. Carr, 291 Ala. 654, 656, 286 So.2d 294, 295 (1973).

The trial judge made a view of the land in controversy and made the following statement:

“I went and looked at this and it looked to me there is no doubt they curved this strip and run the people into a slough; it certainly doesn’t go to Bon Secour River. My ruling is: That they are entitled to 20 feet all of the way to Bon Secour River.”

We have studied the briefs very carefully, and we have made a diligent search of the record. We are not persuaded that the findings and decree of the trial judge are palpably wrong and contrary to the great weight of the evidence.

Appellants next contend that the trial court erred in failing to admit testimony concerning Lot 7, on the south side of the lot in controversy, which evidence showed an enclosure of a part of the right-of-way. They argue that the admission of testimony concerning Lot 7 would have shown the unsuitability of the disputed strip of land as a roadway beyond Old Bon Secour Run and, therefore, that the original owner did not intend to dedicate the entire disputed strip.

This court stated in Webb v, Demopolis, 95 Ala. 116, 131, 13 So. 289, 294 (1892), and repeated in Stack v. Tennessee Land Company, 209 Ala. 449, 452, 96 So. 355, 358 (1923), that

“ . . . [A] dedication of land as a street can in no case, in our opinion, be defeated by considerations going to the relative adaptability of the land to that end, or to difficulties of subjecting it to such uses in point of fact, or to the extent of the use to which it will be subjected when its natural obstructions have been removed, or even to the necessity to so use it all.”

Finding no error to reverse, the judgment appealed from is affirmed.

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

See Appendix on next page.

APPENDIX

PLAT SHOWING PIER AND BOAT HOUSED, AND THE NORTH 10 FEET OF LOT NO. S, AND THE SOUTH 20 FEET OF LOT NO. 8, IN WENZEL'S SUBDIVISION OF PART OF THE OAK RIVER VIEW SUBDIVISION, IN SECTION 30, TOWNSHIP 8 SOUTH, RANGE 4 EAST, BALDWIN COUNTO, ALABAMA.

Surveyor's Certificates

I, J.B.Allen, A licensed surveyor do hereby certify that I have measured in the location of the 2 x 29 foot pier, and the 15 X 20 foot boat house, and have shown said location on the above plat. I further certify that these measurements are correct.

Dated this the'4th day of April, 1972


text:
    OPINION OF THE JUSTICES.
    No. 220.
    Supremo Court of Alabama.
    Nov. 17, 1975.
   The Senate of the State of Alabama adopted a resolution requesting the Supreme Court of Alabama to give an advisory opinion as to the validity of a minority report of a Committee on Conference of the Legislature relative to Section 64 of the Constitution of Alabama.

Question answered.

To the Honorable Members of the Senate of Alabama State Capitol Montgomery, Alabama Sirs:

On November 13, 1975, we received from you a copy of Senate Resolution 35 by Mr. McMillan, requesting our opinions, on the validity of a minority report of a Committee on Conference of the Legislature which we assume is in connection with a pending bill, viz: “Does a minority report of a Committee on Conference have validity?” The answer to this question depends upon whether a minority report of a Committee on Conference of the Legislature is permitted by the rules adopted by each house of the Legislature, or by precedents and practices of each house of the Legislature.

Under Section 53 of the Constitution of Alabama, 1901, each house has the power to determine the rules of its proceedings. The Legislature, therefore, has the authority to determine whether to permit a minority report of a Committee on Conference to be filed. While Section 64 of the Constitution of Alabama, 1901, specifically provides that “ * * * no report of a committee of conference shall be adopted in either house, except upon a vote taken by yeas and nays, and entered on the journal . . .”, the Constitution does not specifically prohibit the filing of such a report, but neither does it specifically permit the filing of such a report.

In short, each house has the power to determine the rules of its proceedings.

For guidance in making your determination, you may wish to look at the practices and procedures followed by similar bodies. See : Mason’s Manual of Legislative Procedure, Chapter 72, pp. 543-552; Jefferson’s Manual, Section XLVI (Manual and Rules of House of Representatives, 94th Congress, House Document 416, 93rd Cong., 2d Sess., 13079, pp.1 268-282); Rules and Manual, United States Senate, 1973, pp. 147-164; Senate Document No. 21, 93rd Congress, First Session, document No. 13028, pp. 283-320 [see, especially, page 312, wherein it is stated; “A minority member of a Conference Committee cannot make a report, under a ruling in the house” (citing Congressional Record, July 29, 1935, pp. 12007-12013).]

In the final analysis, however, it is up to each house to determine how it will handle a Conference Committee report.

Respectfully submitted,

HOWELL HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY Justices


author: CATES, Presiding Judge.

text:
    Dennis Wade LOGAN v. STATE.
    8 Div. 539.
    Court of Criminal Appeals of Alabama.
    April 1, 1975.
    James M. Tompkins, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Voluntary manslaughter: sentence, 10 years imprisonment.

In Morgan v. State, 291 Ala. 764, 287 So.2d 914, we find the following remarks about the Youthful Offender Act:

“ * * * The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.”

In the case of instant concern it appears that upon allocution the appellant informed the court that he was twenty years of age.

The record before us indicates that the killing, which was the subject of the indictment against the appellant, occurred on January 1, 1974. It follows, therefore, that Logan was at this time under the age of twenty-one, which is the dividing line prescribed by Act No. 335, approved February 10, 1972.

On authority of Edwards v. State, (1974), 55 Ala.App. 544, 317 So.2d 511 (which rests on Morgan, supra) this case is remanded to the trial court to refer appellant to a probation officer for investigation. Should appellant then manifest a desire to be tried as a youthful offender, a speedy, fully recorded hearing on his petition shall be held and a transcript of the proceedings, together with the trial court’s determination, is to be forwarded to this court for review.

Remanded with directions.

All the Judges concur.


text:
    Dennis Wade LOGAN v. STATE.
    8 Div. 539.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing- Denied Oct. 21, 1975.
   After return to remand, Ala.Cr.App., 56 Ala.App. 425, 322 So.2d 108. Affirmed without opinion.


author: TATE, Justice. MARCUS, Justice

text:
    John N. VERBOIS, Jr., Plaintiff, v. H. D. HOWARD et al., Defendants-Relators, Hartford Insurance Company, Intervenor-Respondent.
    No. 56206.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-applicants.
    James E. Hopkins, George & George, Ltd., Baton Rouge, for intervenor-respond-ent.
   TATE, Justice.

On the application of the defendants (“Howard et al”), supervisory writs were granted, 311 So.2d 262 (1975), to review the trial court’s annulment of a compromise between the plaintiff Verbois and the defendants. The compromise was set aside on a rule to show cause filed by intervenor (“Hartford”), the compensation carrier of the plaintiff Verbois’ employer.

The employee Verbois was injured in the course of his employment, allegedly through the negligence of third persons, including the defendants Howard et al. Verbois brought suit to recover in tort from these defendants. Hartford, the compensation insurer of Verbois’ employer, intervened to recover from the third person tortfeasors for workmen’s compensation benefits paid or to be paid to Verbois. See La.R.S. 23:1102.

Some months after the intervention, Verbois and the defendants Howard et al executed a compromise, by which Verbois accepted $10,000 in full settlement of his claims against these third person defendants and agreed to dismiss with prejudice his suit against them.

This dismissal of the main demand by Verbois did not, of course, affect the intervention, which is entitled to be tried and decided independently of the dismissed principal action. La.C.Civ.P. art. 1039. Nevertheless, the intervenor Hartford filed a rule to show cause and secured an order from the trial court which annulled the compromise entered into between the plaintiff and the defendants Howard et al.

In reviewing this order of annulment, the issue before us concerns whether a compensation carrier, who has intervened in a tort suit between the injured employee and third person tortfeasors, may prevent the injured plaintiff and the third person tortfeasors from thereafter settling the plaintiff’s tort claim against such third person.

The statutory context of this litigation is provided by La.R.S. 23:1101-03. Briefly, these provisions permit both the em-' ployee and the employer or its insurer to file a tort suit against third persons who caused the employee’s injuries. Section 1101. If either party brings suit, he must notify the other, and the other may intervene in this suit against the third person tortfeasors. Section 1101. In the event of successful recovery in such suit, the employer’s claim for reimbursement of compensation shall be paid in priority to the employee’s claim out of any amount recovered. Section 1103.

Section 1103 concludes: “No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.”

As we stated recently in Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545, 554 (La.1973), Noted, 48 Tul.L.Rev. 763 (1974): “The unambiguous meaning of the statutory language is: * * * either employer or employee has the full right to compromise any claim he has against the third person, but any compromise will not affect the other’s rights against the tortfeasor unless he has assented to it.”

As the statute unambiguously provides, the plaintiff was entitled to compromise his claim against the third person tortfeasors in the pending suit. This compromise did not prejudice the right of the intervenor to recover all sums for reimbursement of compensation to which it is entitled, providing the damages sustained by the plaintiff as a result of the tort are at least equal to such amount. As previously noted, the dismissal of the main demand by the plaintiff against the defendants does not in any wise affect the inter-venor’s independent right to recover the full amount to which it is entitled. La.C. Civ.P. art. 1039.

In arguing to the contrary, the 'interve-nor Hartford suggests that its right to recover damages is so intricately interwoven with the main demand that they must be tried together. This overlooks that, statutorily, the claims of the employee for tort damages and of the employer for reimbursement are independent of one another for purposes of compromise, so that either may be compromised without affecting the right of the other to recover the damages to which he is entitled on his respective claim.

The intervenor Hartford, the employer’s compensation coverage, cannot claim prejudice by reason of the exercise by the plaintiff and the defendants of their statutory right. By it, they compromised the claims, as between themselves, without affecting Hartford’s right to recover all damages from the defendants to which it is entitled to recover had there been no compromise.

Hartford does not cite any authority to the contrary.

The decisions discussed by it are not apposite to the present issue. Compton v. North River Insurance Co., 281 So.2d 848 (La.App. 1st Cir. 1973), certiorari denied, 284 So.2d 336 (La. 336) and Todd-Johnson Dry Docks v. City of New Orleans, 55 So. 2d 650 (La.App.Orl.1951) concern the situation where an employer, given notice of an employee’s suit against third person tortfeasors, fails to intervene. In such instances, the failure of the employer (or its compensation carrier) to intervene timely, after adequate notice, may result in the loss of its reimbursement rights under certain circumstances.

Here, however, the employer’s compensation carrier, Hartford, did intervene in the pending tort suit filed by the injured employee against the third person tortfeasors. The cited decisions do not apply, nor is their rationale inconsistent with the views and holding herein.

For the reasons assigned, therefore, we reverse and set aside the trial court order rescinding the compromise executed between the plaintiff and the defendant. Hartford, the intervenor-respondent, is taxed with all costs of its rule to show cause, which is hereby denied, and of supervisory review of the improvident order granted in connection therewith, as sought by applications both to the court of appeal and to this court.

Trial court ordered reversed and set aside.

MARCUS, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

I disageee with the majority’s extension of the rationale of Crabtree v. Bethlehem Steel Corp., 284 So.2d 553 (La.1975) (on rehearing), a decision in which I dissented and which I still believe is erroneous.

Under La.R.S. 23:1103, the employer has the right to be reimbursed for compensation actually paid from the proceeds of a judgment obtained by the plaintiff-employee against a third person adjudged at fault for his injuries. This right of reimbursement enjoys a priority over any damages owed the employee. The second paragraph of La.R.S. 23:1103 provides:

No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.

In my opinion, the legislative intent was to prevent any compromise between the employee and the third person without the assent of intervenor, the employer. Hence, the trial judge properly annulled the compromise between plaintiff Verbois and defendants.

I respectfully dissent.


author: DIXON, Justice.

text:
    Victoria Prudhomme OSBORN et al. v. C. N. JOHNSTON et al.
    No. 56158.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      William O. Bonin, Landry, Watkins, Cousin & Bonin, New Iberia, for plaintiff s-applicants.
    Jack C. Caldwell, Aycock, Horne, Caldwell, Coleman & Duncan, Franklin, John E. Parker, New Orleans, for defendants-respondents.
   DIXON, Justice.

In this petitory action, the court of appeal affirmed the judgment of the trial court in rejecting the demands of the plaintiffs, holding that the plaintiffs’ ancestor had acquired no title or right of ownership by virtue of a sheriff’s deed on which plaintiffs base their claim. Osborn v. Johnston, 308 So.2d 464.

Writs were granted because of doubts as to the interpretation of the “ancient documents” statute, R.S. 13:3728-3730.

Plaintiffs are the heirs of Lassaline P. Briant; defendants are the assignees and mineral lessees of James and Alcide Owens. The property involved is an undivided interest in:

Lot 3, Section 1, and Lots 2 and 3, Section 2, Township 13 South, Range 11 East, Southwestern Land district, St. Martin Parish, Louisiana.

Neither plaintiffs nor defendants are in possession of the property, which apparently became swamp land shortly after the civil war. The issue, therefore, is: have the plaintiffs shown a better title to the land than the defendants?

C.C.P. 3651 and 3653 describe the petito-ry action as follows:

Art. 3651. Petitory action
The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.
Art. 3653. Same; proof of title
To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.

The Ancient Document

Plaintiffs’ claim to title is based on a sheriff’s deed dated January 1, 1870 and recorded on the fourteenth day of the same month, purporting to convey the property to Lassaline P. Briant. The name of the vendee, Lassaline P. Briant, is written over another name in the instrument; the other name, almost obscured, can be determined to be “Miss Valerie Fournet”. (The proces verbal of the sheriff’s sale recited that Miss Valerie Fournet was the vendee, and that L. P. Briant and Z. T. Fournet were her securities for the payment of the price of the 12-months credit sale.)

The deeds, of course, were written in pen and ink, and the record shows that Briant’s name was superimposed over Valerie Fournet’s in Briant’s own hand, that the balance of the deed was not written in Briant’s hand; that Briant, himself a deputy clerk, “filed” the proces verbal on January 10, 1870; that the sheriff’s deed was “recorded” by another deputy recorder on January 14, 1870.

R.S. 13:3728-3731 provide:

3728. Ancient document; admissible in civil suits
On the trial of any civil case in any court ancient documents, defined in R.S. 13:3729, shall be received in evidence.
3729. Same; definition
An ancient document is defined to mean any instrument written, including maps, plats and surveys, which has been recorded in the conveyance, mortgage, donation, miscellaneous or other official records of any parish of the state for a period of thirty years or more at the time such instrument is offered in evidence.
3730. Same; acknowledgment or proof of authenticity not required.
It shall be unnecessary for .any ancient document, as defined in R.S. 13:3729, to be acknowledged or proven as provided by any act, statute or other law of the state in order for such ancient document to be admitted in evidence, and it shall be unnecessary to prove the execution of such document, the mere fact of such instrument having been recorded for a period of thirty years, as herein provided, being sufficient to establish a prima fa-cie presumption of the execution and of the genuineness of such instrument.
3731. Same; admissibility of copies
It shall be unnecessary to offer in evidence the original copy of any ancient document, as defined in R.S. 13:3729, even though such original copy may be available, but in all cases copies of ancient documents made either from the original or from the recordation thereof shall be received in evidence if such copy offered in evidence be certified as a true copy by the custodian or by any legal deputy of the custodian of the records from which such copy is made.

The court of appeal properly held that the statutory presumption of genuineness of ancient documents is not conclusive, and is rebuttable. However, because the instrument contains a “material alteration” (the change of the name of the vend-ee from Fournet to Briant) “(t)he burden thus shifted to plaintiffs, who rely on that deed to prove that the alteration was made prior to delivery of that document, and that it was made with the consent of the parties.” 308 So.2d 464, 471. This interpretation seriously impairs the efficacy of the ancient documents act.

In the absence of statutes, many American jurisdictions have formulated theories for establishing the authenticity of writings by circumstantial evidence. Documents can be sufficiently authenticated by proof of 30 years age, unsuspicious appear-anee, and proof of production from custody natural for such documents. Sec. 223, McCormick, Law of Evidence, 2d ed., West Publishing Co. Therefore, in the absence of our statute, the “material alteration” in the instrument would mean that it would not be authenticated without more direct evidence. Muehrcke v. Behrens, 43 Wis.2d 1, 169 N.W.2d 86 (1969).

Statutes in some states have couched their ancient documents rule in terms of rebuttable presumptions. For example, Oregon Revised Statutes 41, sec. 360(34) states :

41.360 Disputable presumptions. All presumptions other than conclusive presumptions are satisfactory, unless overcome. They are disputable presumptions, and may be controverted by other evidence, direct or indirect, but unless so overcome, the jury is bound to find according to the presumption. The following are of that kind:
(34) A document or writing more than 20 years old is genuine, when it has been generally acted upon as genuine by persons having an interest in the question, and its custody has been satisfactorily explained.

Similarly, Montana’s ancient documents statute is discussed in King v. Schultz, 141 Mont. 94, 375 P.2d 108 (1962) where the court held:

The ancient document rule does not change the basis for admission of evidence other than as to the genuineness of the document. The rule is embodied in RCM 1947, § 93-1301-7, subd. 34, which provides:
“All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: * * *
“34. That a document or writing more than thirty years old is genuine, when the same has been since generally acted upon as genuine, by persons having an interest in the question, and its custody has been satisfactorily explained.”
In Cook v. Hudson, 110 Mont. 263, 284, 285; 103 P.2d 137, 147, the court considered the foregoing presumption in this language:
“ * * * plaintiffs’ Exhibits ‘G’ and ‘H’, Grant’s notices of location of water right, were dated and acknowledged October 31, 1892, recorded November 2nd following and recite on the face thereof that the appropriations were made as of October 20, 1892. The recordation of the notice and the date on which the appropriation was alleged to have been made was one day prior in each instance to the date shown by the Severin notice. The presumption is that this record is genuine (subdiv. 34, sec. 10606, Rev. Codes 1921 [now R.C.M.1947, § 93-1301-7]), and its contents are prima fa-cie evidence of the facts therein stated.” Emphasis supplied.

The Louisiana statute, however, has been designed especially for our system of recordation of instruments affecting the title to land. The custodial requirement is satisfied, because our statute applies only to instruments recorded in the official records for more than 30 years. R.S. 13 :3729. Our statute does not require that the ancient instrument be “regular” or “un-suspicious”. The combination of age and recordation not only authenticates the old document, making it admissible in evidence, but also, by the terms of the act, establishes “a prima facie presumption of the execution and of the genuineness of such instrument.”

The only Louisiana case found which interprets the act so stated, and held that the burden of prooof (to establish that an ancient document is not genuine) is upon “those who assail an ancient document to overcome the presumption of its prima facie validity”. Watkins v. Zeigler, 147 So. 2d 435, 438 (La.App.2d Cir. 1965).

Moreover, our ancient documents statute even dispenses with the necessity of offering the original instrument; copies made from the recordation of the ancient document are admissible. The copy of the sheriff’s deed involved in the instant case shows only Briant to be the vendee, was indexed in Briant’s name, and shows no irregularity.

The superimposition of Briant’s name over that of Miss Fournet is not such an alteration that could not have an innocent explanation. It was recorded and indexed with no effort at concealment on the public records; it was assessed for tax purposes to Briant the following year and subsequently to the state for non-payment of taxes, in the name of Briant. Miss Fournet was Briant’s sister-in-law. Briant is named as one of her securities for the payment of the purchase price in the proces verbal. The deed was not recorded until four days after the recordation of the proces verbal. It is entirely possible that Miss Fournet freely consented to the substitution of Briant’s name for hers on the deed, for one of a number of valid reasons. The record contains no evidence whatsoever that the substitution of the name was not with the knowledge and consent of Miss Fournet.

To hold that the burden of proving the regularity of the ancient instrument falls on the one relying on the instrument would emasculate the act. The party attacking a document covered by R.S. 13:3728-3731 must overcome the “prima facie presumption” of its validity. Defendants have not borne that burden.

Briant’s Loss of Ownership

Nevertheless, we find that plaintiffs cannot prevail, for reasons not reached by the courts below.

In 1873, the land in dispute was adjudicated to the state for failure to pay taxes. The name of L. P. Briant appears as the owner. In 1889 the land in dispute was again adjudicated to the state for failure to pay taxes. The name of James Owens appears as the owner. In 1891 the state conveyed the land to the Atchafalaya Basin Levee District. In 1896 the Levee District conveyed the land to Pierre Angelloz. Pierre Angelloz conveyed to Arthur An-gelloz in 1899, who conveyed to James and Alcide Owens in 1902. Defendants claim through the Owens.

Plaintiffs present two positions, arguing alternatively that the property either never left the patrimony of Briant or, if it did leave Briant’s patrimony, that it was returned by operation of law.

In arguing that the property never left Briant’s patrimony, plaintiffs contend that because part of the land sold in the St. Martin parish tax adjudication is located in Iberia parish the tax adjudication of 1872 is an absolute nullity. This argument ignores Article 10, section 11 of the (See Art. 7, sec. 25(C) La.Const.1974) Constitution of 1921:

No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given.

In King v. Moresi, 223 La. 54 (1953), 64 So.2d 841, we held:

This constitutional peremption applies to all tax sales except those specifically excepted therein and those where the tax debtor remains in corporeal possession of the premises. The language used is very broad. This constitutional provision announces the public policy of this State to set at rest tax titles once and for all. 64 So.2d at 842.

There is no evidence in the record before us to indicate that the taxes had been paid, nor did the tax debtor remain in corporeal possession of the property. The five year peremption period having long since passed, plaintiffs cannot now attack the validity of the tax adjudication on this basis. Plaintiffs’ argument that the property never left Briant’s patrimony is wholly without merit.

In arguing alternatively that if the land left Briant’s patrimony it was returned by operation of law, plaintiffs contend that, though the land was adjudicated from Briant to the state, it was returned by the operation of Article 10, section 20 of the Constitution of 1921:

§ 20. Tax Forfeitures prior to 1880; annulment
Section 20. Whenever any immovable property shall have been forfeited or adjudicated to the State for the nonpayment of taxes due prior to January 1st, 1880, and the State shall not have sold or disposed of same, nor dispossessed the tax debtor, or his heirs, successors or assigns, prior to the adoption of this Constitution, it shall be conclusively presumed, that such forfeiture or adjudication was irregular and null, or that the property has been redeemed; and the State, and its assigns subsequent hereto, shall forever be estopped from setting up any title to such property by virtue of such forfeiture or adjudication; provided, that for a period of three years from the adoption of this Constitution the State shall have the right to enforce the payment of any unpaid taxes for the non-payment of which the property was forfeited to the State.

It is clear from this provision that in order to prevail plaintiffs must take the position that the state has not “sold or disposed of”, the property. The record shows otherwise. Act 97 of 1890 conveyed the lands to the Atchafalaya Basin Levee District and directed the auditor and the registrar of lands to issue conveyances; this land was so conveyed (by the auditor) December 29, 1891.

It is contended that the conveyance from the Levee Board to Pierre Angelloz was a mere quit-claim and that the Levee Board had no rights in the property. The act of transfer contains the words “quitclaim” in the heading; the language within the act is as follows:

Be it Known: That for and in consideration of the sum of One Hundred & Two Dollars and Ninety Nine Cents, ($102.99/100) lawful money of the United States of America paid, and receipt of which is hereby acknowledged, the Board of Commissioners for the Atchafalaya Basin Levee District acting through its President does by these presents transfer, convey and quit claim unto
Pierre Angelloz all the rights, titles and privileges acquired by the said Board from the State of Louisiana. . .

Even if this instrument is a “quit-claim”, we find that it effectively conveyed to An-gelloz the ownership of the land, because the Levee Board was the owner. A quitclaim deed conveys whatever title the grantor owned. Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225 (1947).

Plaintiffs take the position that, for two separate reasons, the Levee Board did not own the property conveyed to Pierre An-gelloz.

First, they argue that the donation from the state to the Levee Board transferred only rights obtained by the state in the 1889 tax adjudication, which plaintiffs contend is an absolute nullity, and not rights the state obtained in the 1873 tax adjudication.

We need not decide whether the 1889 tax adjudication is a nullity because we find that the state conveyed to the Levee Basin all rights in the property regardless of how or when the state acquired them.

By act 97 of 1890, the legislature provided for the donation of transfer to the Atchafalaya Basin Levee District all lands then belonging to the State within the limits of the Levee District.

The conveyance by the auditor to the Levee District reads as follows:

I, O. B. Steele, Auditor of Public Accounts, under and by virtue of the authority in me vested by Act 97 of 189-Section 11, do hereby transfer and convey to the Board of Commission of the Atchafalaya Basin Levee District, all right, title and interest of the State of Louisiana, in and to the lands situated in the Parish of St. Martin and embraced within the limits of said Levee District which said lands have been adjudicated to the State for unpaid taxes of 1880 and subsequent years and not redeemed within the time prescribed by law. Said lands being more fully described in the list (attached hereto and made a part hereof.
In evidence, whereof I have hereto set my signature and seal of office on the day and date first above written.
Signed O. B. STEEL AUDITOR (SEAL)

This language clearly transfers “all right, title and interest of the State of Louisiana”. The clause referring to the unpaid taxes of “1880 and subsequent years” does not limit the conveyance to those lands the titles to which were acquired for taxes subsequent to 1880. Act 97 of 1890 did not limit the conveyance; As the deed expresses, the lands conveyed were “more fully described” in the attached list, which described the property involved here. The reference to lands described for taxes after 1880 might accurately describe some parcels, but did not limit the conveyance to certain titles of land described particularly in attached list.

Thus the state transferred all of its rights regardless of when they were acquired; the state acquired ownership ■ of this land in the tax adjudication of 1873.

Next, plaintiffs argue that the conveyance to the levee district was invalid because the act authorizing such donations was violated.

Section 11 of act 97 of 1890, argue plaintiffs, required conveyances to the levee district to be signed by both auditor and register of the state land office. Plaintiffs take the position that the conveyance here involved is invalid because it was signed only by the auditor.

However, as defendants point out, this defect is cured by act 316 of 1926:

Section 1. Be it enacted by the Legislature of Louisiana, That all deeds of transfer heretofore made by either the Auditor or Register of the State Land Office of this State to the Atchafalaya Basin Levee District,
under the various Acts creating said Levee Districts, or other acts of the General Assembly of Louisiana, by which lands were granted to said districts, be and the same are hereby ratified, quieted and confirmed, the same as if all such deeds had been signed by both the Auditor and Register of the State Land Office of this State, provided this Act shall in no way affect the legal rights of persons claiming any parts of said lands under, and by virtue of Patents acquired from the State of Louisiana.

Plaintiffs’ only response is that act 237 of 1924 had the effect of repealing act 97 of 1890 and therefore that the 1926 act could no longer cure the failure to comply with act 97 of 1890. Plaintiffs cite State v. Grace, 187 La. 1028 (1936), 175 So. 656.

Act 237 of 1924 had the effect of allowing public bidding on land forfeited to the state. The court in State v. Grace, supra, merely held that such land could no longer be directly donated to the Atchafa-laya Basin Levee Board inasmuch as public bidding was required. The act did not purport to affect transactions completed previous to its effective date. This was recognized by the court in Grace:

The Act of 1924 will not destroy rights which have accrued to persons under previous enactments nor will it have effect on land held by the State within the various Levee Districts. The only effect the Act of 1924 can possibly have would be the disposition of property owned by the State and not reserved to one of the various Levee Districts.

Thus, plaintiffs’ argument that the property returned by operation of law to Briant’s patrimony is wholly without merit. Since they have no title, plaintiffs cannot prevail.

The judgments of the court of appeal and district court are affirmed at plaintiffs’ cost.