author: WALKER, Justice,

text:
    Don BREWER v. STATE of Mississippi.
    No. 50259.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Robert M. Acevedo, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a conviction for delivery of a controlled substance returned after a jury trial in the Circuit Court of the Second Judicial District of Harrison County, Mississippi. Appellant was sentenced to serve eight years in the Mississippi State Penitentiary.

The indictment in this case charged: “That Don Brewer, Gary Ramon and Theresa Irwin ... did unlawfully, wilfully & feloniously, without authority of law, deliver unto one Mary Blanchard, a certain controlled substance, to-wit: preludin. . ” (Emphasis added). Appellant did not demur or otherwise challenge the sufficiency of the indictment. The evidence adduced at trial showed that preludin contained phenmetrazine, a substance listed in Schedule II of the Schedules of Controlled Substances. Mississippi Code Annotated section 41-29-115 (Supp.1976). At the conclusion of the state’s case, the defendant made a motion to dismiss on the ground that no cause of action was stated by the indictment since it did not charge him with delivery of a substance which was on the statutory schedule. The trial court overruled the defendant’s motion and required that the state amend the indictment to set forth the fact that preludin contained phen-metrazine.

Appellant contends on appeal that the indictment was not amendable because it did not charge a crime in the first instance. We agree. Mississippi Code Annotated section 99-7-21 (1972) states as follows:

All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.

This statute applies only to matters of form and not matters of substance. See Hannah v. State, 336 So.2d 1317 (Miss.1976). The omission of a recital in the indictment that preludin contained phenmetrazine was an omission of substance; and, it was an omission which went to the very heart of the indictment. In Love v. State, 211 Miss. 606, 52 So.2d 470 (1951), this Court quoted with approval from 27 Am.Jur. Indictments and Information section 54 (1940), in part, as follows:

“Every material fact and essential ingredient of the offense — every essential element of the offense — must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.” (211 Miss. at 611, 52 So.2d at 472).

It is clear that in order for the indictment to allege a violation of law that the state had to show by extrinsic evidence that pre-ludin was a substance which contained phenmetrazine. Therefore, an essential ingredient of the indictment was omitted and the indictment was invalid. Under these circumstances the indictment could not be amended. See Wortham v. State, 219 So.2d 923 (Miss.1969). The instant case bears a close resemblance to Cobran v. State, 219 Miss. 767, 70 So.2d 46 (1954). In that case, the defendant was charged with uttering forged cotton tickets in violation of Mississippi Code 1942 Annotated section 2172 (1956), which made it a violation to deliver for consideration any forged or counterfeited “evidence of debt or engagement for the payment of money.” The Court stated that it did not appear from the face of the cotton tickets that they were evidence of debts or engagements for the payments of money. Thus, the Court held:

In this situation it was necessary in order for the indictment to allege any offense whatsoever that the same should have alleged extrinsic facts showing how the writings could have been used as evidences of debt or engagements for the payment of money. The failure to allege such extrinsic facts in connection with the setting forth of the writings which were of no legal efficacy on their face, amounted to more than a formal or other defect that could have been cured by amendment in the event the indictment had been demurred to; the indictment fails to charge any offense whatsoever. (219 Miss. at 775, 70 So.2d at 48).

In the case at bar, it was necessary for the state to prove extrinsic facts, i. e., that preludin contained phenmetrazine, in order to make out a prima facie case since prelu-din itself is not designated as a controlled substance. The instant ease is, in principle, indistinguishable from Cohran and we reach the same conclusion as did the Court there. See also State ex rel. Hubbard v. Spillers, 202 S.E.2d 180 (W.Va.1974); Hart v. State, 396 S.W.2d 873 (Tex.Ct. of Cr.App. 1965); United States v. Hammers, 241 F. 542 (S.D.Fla.1917). But see Yingst v. State, 513 P.2d 1322 (Okl.Ct. of Cr.App.1973); State v. Starks, 419 S.W.2d 82 (Mo.1967).

We wish to make it clear that we do not disturb by our ruling here cases which hold that an indictment can be amended to correct a misnomer in an address, etc. See, e. g., Sanders v. State, 313 So.2d 398 (Miss.1975) where an amendment to correct the dollar amount allegedly taken in a robbery was held to be one of form; Torrence v. State, 283 So.2d 595 (Miss.1973) where an amendment to correct the date on which a crime was alleged to have been committed was held proper; Bennett v. State, 211 So.2d 520 (Miss.1968) where an amendment changing the description of a stolen watch was held proper; Mills v. State, 231 Miss. 641, 97 So.2d 386 (1957) where an amendment to conform the indictment for theft from partnership to theft from corporation was held proper; Gillespie v. State, 221 Miss. 116, 72 So.2d 245 (1954) where an amendment changing victim’s first name to correctly identify him was held proper; Hearn v. State, 219 Miss. 412, 69 So.2d 223 (1954) where an amendment of description of defendant as “owner” to “occupant” of roadhouse wherein he was charged with permitting gambling was held proper; Jones v. State, 215 Miss. 355, 60 So.2d 805 (1952) where an amendment of indictment charging receipt of stolen property so as to supplement but not vary description of the stolen property was held proper. The crucial distinction between such cases and the case at bar is that in the former a crime was charged on the face of the indictment, even though there was an error in a factual recitation. In this case, a comparison of the indictment to the criminal statute would not disclose that a crime was charged.

For the foregoing reasons, the judgment of the lower court is reversed and the defendant is remanded to the custody of the sheriff of Harrison County, Mississippi, to await action of the next grand jury.

REVERSED AND DEFENDANT IS REMANDED TO THE CUSTODY OF THE SHERIFF OF HARRISON COUNTY TO AWAIT ACTION OF NEXT GRAND JURY.

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


source: Caselaw Access Project

author: JONES, Justice. BLOODWORTH, Justice ALMON, Justice BEATTY, Justice

license: Public Domain

text:
    In re Criminal Contempt Prosecution against Shearn Moody, Jr., arising out of STATE of Alabama ex rel. PAYNE, etc. v. EMPIRE LIFE INSURANCE CO. OF AMERICA, etc. Ex parte Shearn MOODY, Jr.
    SC 2336 to 2339.
    Supreme Court of Alabama.
    Aug. 19, 1977.
    Rehearing Denied Sept. 30, 1977.

      William H. Mills for Rogers, Howard, Redden & Mills, Birmingham, for petitioner.
    Drayton Nabers, Jr. and William A. Robinson, Birmingham, for respondent, Protective Life Ins. Co.
   JONES, Justice.

These cases are before the Court upon writs of certiorari to review a decree of the Circuit Court of Jefferson County adjudging the petitioner, Shearn Moody, Jr., in criminal contempt for the violation of several injunctions and orders issued by that Court. Separate petitions, which had been consolidated on a single record, were filed in this Court to review four convictions.

Moody is the president, chairman of the board, and principal stockholder of the Empire Life Insurance Company of America. Respondents are The Honorable William C. Barber, Judge, Circuit Court of Jefferson County, before whom the contempt proceedings were heard, and Protective Life Insurance Company.

Receivership and Alimón

In order to understand the issues raised, it is necessary to set forth a brief summary of the receivership proceedings and other ancillary and related actions out of which this case arose.

On June 29, 1972, Empire was placed in receivership and ordered liquidated. Moody objected to this and was permitted to intervene as a defendant. Reinsurance was authorized through Protective on June 14, 1974. This reinsurance has been recently upheld by this Court. Moody v. State ex rel. Payne, 344 So.2d 160 (Ala.1977).

The four criminal contempt judgments are based upon Moody’s interference with the receivership proceedings and his involvement in the case of Allmon v. Bookout, Civil Act No. 74-377-N, United States District Court for the Middle District of Alabama.

Subsequent to the receivership determination, Moody, through counsel, filed various suits and claims against the Receiver, in that capacity and individually. One such case, Allmon, was filed on November 22, 1974. Moody’s involvement in Allmon is the basis of the first judgment of contempt. The trial Court held that an implied injunction prohibiting interference with the receivership arose after Empire was placed in receivership, and that Moody violated this implied injunction by filing Allmon.

On January 6, 1975, after Alimón was filed, the trial Court issued an injunction in an attempt to prevent Moody’s further interference with the receivership. Thereby, Moody was enjoined from filing, financing or sponsoring any action, or amendment to any action, on behalf of any party, against the Receiver or others without prior approval of the Court. See Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976). On January 28, 1975, without seeking approval from the Court, counsel for Moody filed an amended complaint in Allmon. It is the violation of this January 6, 1975, injunction which is the basis of the second contempt adjudication.

An order dated March 10, 1975 (as vacated and superseded by an order dated April 30, 1975), held Moody in civil contempt for violating the January 6 injunction, and specified eight requirements for Moody to purge himself. It is the failure to obey the April 30 order which is the basis of the third contempt adjudication.

On June 16, 1976, the Court ordered Moody to personally appear on July 19 and show that he had purged himself by complying with the April 30, 1975, order. Moody’s failure to appear is the basis of the fourth adjudication of criminal contempt.

Criminal Contempt Proceedings

The criminal contempt proceedings against Moody were initiated on August 19, 1976. A petition was filed by Protective and served upon each of three attorneys of record for Moody. On the basis of the petition and supporting papers, the trial Court issued four orders requiring Moody to appear and show why he should not be held in criminal contempt. Moody was served, as directed by the Court, at his address in Galveston, Texas, by both registered and first class mail.

Prior to the scheduled hearing, counsel for Moody filed a motion seeking a continuance on the basis of Moody’s health and alleged inability to travel. The Court directed Moody to submit to physical examination and to file medical records and reports concerning his health. After further hearings, the Court held that a general continuance was not warranted, but a conditional continuance was granted subject to a physical examination of Moody.

On September 2, 1976, Moody filed separate motions to quash service, to quash the orders to show cause, and to dismiss. All were subsequently overruled. Trial was commenced on September 13, 1976. The Court determined ex mero motu not to compel Moody’s attendance, but to leave the decision whether to appear to Moody, himself. Further motions to continue and for Judge Barber to recuse himself were also denied.

The Court below considered voluminous documentary evidence and oral testimony. The evidence was left open, however, to permit Moody to submit to deposition testimony in explanation of his position and contentions. Because no such testimony was forthcoming, the Court treated the evidence as closed on November 1, 1976.

Pursuant to Tit. 13, § 9, Code, Moody was sentenced to confinement in the Jefferson County jail for four consecutive five-day terms and ordered to pay four fines of fifty dollars each. The Court also held that counsel for Protective was entitled to recover reasonable attorney’s fees from Moody. The amount of such attorney’s fees, however, was to be determined at a subsequent hearing. This review followed. We affirm in part, and reverse in part.

I.

Numerous issues have been raised by Moody, many of which can only be answered by first resolving the basic questions of what is the nature of a criminal contempt proceeding and what are the requirements of due process of law in such actions.

If the purpose for which the court’s contempt power is exercised is to coerce compliance with an order of the court, the action is one for “civil” contempt. If, however, the purpose is to preserve the authority and dignity of the court, and to punish the contemnor for noncompliance with an order of the court, the contempt is “criminal.” 17 Am.Jur.2d, Contempt, § 4. If the act or omission is not done in the presence of the court, but at a distance, it is termed “constructive” contempt. Ex parte Seymore, 264 Ala. 689, 89 So.2d 83 (1956). Both statute and cases affirm the discretionary power of the court to enforce its orders and to punish recalcitrance. Tit. 13, § 5, Code, and Ex parte Hill, 229 Ala. 501, 158 So. 531 (1935).

A proceeding in contempt for noncompliance with a lawful court decree is sui generis and not a “criminal prosecution” as that term is commonly understood. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), and Robertson v. State, 20 Ala.App. 514, 104 So. 561 (1924). Because the sanctions employed by the court, pursuant to a criminal contempt adjudication, partake so heavily of a criminal nature (i. e., the actual or potential restraint of the body), however, it is essential in all but a narrow category of cases that constitutional principles be applied to this process to assure substantial due process is afforded the accused. The task of this Court, then, is to balance the inherent power of the Court to preserve its dignity and honor by the contempt process, while preserving to the accused contemnor the right to be treated with fairness and substantial due process.

The jurisdiction of the court in a criminal contempt proceeding is not the same as that in the proceeding from which the contempt arose; and this for the reason that the criminal contempt proceeding is a totally separate action. Robertson, supra. In determining whether the requisites for obtaining jurisdiction over the accused have been complied with, the circumstances of each case must be considered in light of substantial due process requirements.

“The reasonableness and hence the constitutional validity of any chosen method [of service] may be defined on the ground that it is in itself reasonably certain to inform those affected . . . ” Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657,94 L.Ed. 865 (1950).

In reviewing the particular circumstances of this case, the record indicates that: Moody was a voluntary party in the receivership action; he avoided service of process by encamping and remaining outside the state; attorneys actively engaged in his employ were served; service by registered and first class mail was sent to his home in Texas; and he had actual notice of the action, as shown by his attorney’s appearance and motions for continuance. Considering these circumstances, and balancing them against the rights of the accused, we think that the service effected was the best notice available under the circumstances. It was calculated to inform Moody of the pending action so as to afford him sufficient opportunity to choose for himself whether to appear, acquiesce, or contest. It would be anomalous, indeed, if a nonresident could avail himself of the use of our courts and then be free to disobey the Court’s lawful order and forever insulate himself from the Court’s inherent power to punish contempt by merely absenting himself from the state.

The policy of recent decisions is to expand in personam jurisdiction to its due process limits. See, e. g., ARCP 4.2, Comments, pp. 34-35. Decisions in this area are based on notions of fairness and substantial justice. Elkhart Engineering Corp. v. Dornier Werke, 343 F.2d 861 (5th Cir. 1965). For these reasons, we think jurisdiction was properly invoked over the accused in the instant action.

II.

Substantial due process requires that the accused shall be given proper notice, advised of the charges and given a reasonable opportunity to be heard. It also entails the assistance of counsel, if requested, the right to be present, give testimony and call witnesses. The notice must contain sufficient information to advise the accused of the nature and particulars of the conduct charged. Yates v. United States, 316 F.2d 718 (10th Cir. 1963); Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948); Tapley v. Liberty Super Markets of Birmingham, 53 Ala.App. 363, 300 So.2d 401 (1974), and Robertson, supra.

In criminal contempt proceedings, the pleading need not be stated with the particularity required in a true criminal case. People v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417 (1961). While this is true,

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action . . .” Mullane, supra, 339 U.S. at 314, 70 S.Ct. at 657.

Some degree of specificity is clearly required to enable an accused to adequately prepare a defense.

Moody contends that the allegations and accusations contained in the notices were inadequate. Oral argument on this point, however, was limited to the third charge (refusal to obey the April 30, 1975, order).

The petition and the order to show cause, as regards the third charge, merely refer to “disobedience and failure to comply with” the order of April 30, 1975. As stated, that order contained eight separate requirements for Moody to purge himself. Nowhere is there stated which of these requirements Moody failed to meet. Therefore, the show cause order was too general to apprise Moody of the conduct for which he was to be held in contempt. For this reason, the trial Court was in error in holding Moody in contempt on the third charge.

The other three charges likewise contained general averments. In each of these cases, however, one primary act was required. They do not fail for indefiniteness because Moody was sufficiently apprised of which actions he must defend against.

III.

Moody contends that, because he was not personally present at the hearing, the contempt convictions are void. This contention is premised upon Petitioner’s interpretation of such proceedings as being strictly criminal in nature. As stated, however, these proceedings are, instead, sui generis.

While no Alabama case has specifically addressed the issue whether an alleged con-temnor may be tried in absentia, the United States Supreme Court has held that there is no requirement that the accused, in a criminal contempt proceeding, be personally present. Blackmer, supra. In this case, Moody was not denied the right to be present. Instead, every opportunity to be present was afforded the accused. The order of September 10, 1976, expressly stated that Moody would not be compelled to attend, but that, if he so elected, he would be given a chance to testify and explain the charges against him. Furthermore, in recognition of possible physical infirmities, the trial Court stated that Moody could be given daily transcripts of the proceedings and allowed to give his testimony by way of deposition. This is clearly a case where Moody had the right to be present, but waived that right by his actions. See Haynes v. State, 40 Ala.App. 106, 109 So.2d 738 (1958).

IV.

Moody contends that criminal contempt is a “public offense.” Therefore, he asserts, because it is not a felony, it must be a misdemeanor, as defined in Tit. 1, § 7, Code. By this section, “Misdemeanor” is defined as “all other public offenses” which are not felonies. Upon this premise, he contends that the one-year statute of limitations for misdemeanors is applicable. Tit. 15, § 222, Code.

This contention ignores recent case authority which specifically states that criminal contempt is not a “public offense.” International Brotherhood of Electrical Workers v. Davis Constructors and Engineers, Inc., 334 So.2d 892 (Ala.1976).

It has been stated that:

“. . . the circumstances [of] each case should be carefully examined to determine when lapse of time would make it unjust or unfair to compel a respondent to answer contempt charges.” Barasch, supra, 173 N.E.2d at 420.

The appropriate time limitation for bringing a criminal contempt charge must be determined on a case by case basis by determining the nature of the act or acts, the prejudice the delay may cause the accused and whether the delay is unreasonable. This theory complies with the balancing between the authority of the Court and the rights of the accused.

Applying this test, we hold that the first charge is due to be reversed. Empire’s receivership was ordered on June 29, 1972. The Allmon case was filed on November 22, 1974. While this, in itself, would not warrant reversal, the fact that the criminal contempt petition was not filed until August 19, 1976, almost two years after the act occurred, is unfair and prejudicial to Moody. Witnesses and other evidence could easily have become unavailable in this interim.

The other two charges (the second and fourth) do not fail for this reason. The fourth case concerns acts within one month prior to the petition. The second case concerns continuing acts which clearly extend any limitation period and the accused cannot be heard to complain of prejudice from such situations.

Y.

Petitioner’s contention that Judge Barber abused his discretion by not recus-ing himself is without merit. At the hearing on the show cause order, counsel for Moody moved that Judge Barber recuse himself on the grounds of several statements made at a hearing on July 19, 1976. At this hearing, Moody sought a continuance based on his poor health. A review of Judge Barber’s statements indicates little more than that he felt he had been fair with Moody, but that Moody had not been fair with the Court, and that he was growing impatient with Moody’s failure to cooperate.

When bias and prejudice are the stated grounds for recusal, the general rule is:

“ ‘It is actual existence of prejudice on the part of a judge, not the mere apprehension of it by a party which disqualifies. Further, the disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity . . .’” Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977).

Judge Barber’s statements do not amount to a showing of bias and prejudice necessary to compel recusal. Furthermore, upon a review of the entire record, we think Judge Barber is to be commended for the patience displayed in light of Moody’s consistently recalcitrant behavior.

VI.

Petitioner further contends that the trial Court abused its discretion in not granting a continuance because of Moody’s poor health. It is settled law that the appropriateness of a continuance is within the sound discretion of the trial Court. Mobile Cab & Baggage Co., Inc. v. Busby, 277 Ala. 292, 169 So.2d 314 (1964). A continuance is not favored in the law and the trial Court’s discretion will not be reversed absent a showing of gross abuse. Johnson Publishing Co., Inc. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960); and World Homes, Inc. v. Wilson, 54 Ala.App. 47, 304 So.2d 603 (1974).

The Court below granted a conditional continuance, subject to a physical examination of Moody. Furthermore, the Court permitted Moody to testify by deposition if he so desired. The Court did all within its power to recognize Moody’s infirmities, while at the same time, expeditiously proceeding with an important controversy. For these reasons, the contention that the trial Court abused its discretion in not granting the continuance is without merit.

VII.

In addition to the statutory punishment of fifty dollars and five days in jail, the trial Court ordered Moody to pay reasonable attorney’s fees to Protective for expenses incurred in the preparation and prosecution of the contempt proceedings. In so doing, the trial Court exceeded its authority.

Generally, attorney’s fees are recoverable only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney creates a fund out of which fees may be paid. State v. Alabama Public Service Commission, 293 Ala. 553, 307 So.2d 521 (1975); Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965), and Taylor v. White, 237 Ala. 630, 188 So. 232 (1939). There is no applicable statute before us. Also, the benefit received in criminal contempt proceedings inures to the Court and the State, and only incidentally to a suitor.

Moody’s contention that the ordering of attorney’s fees renders the entire judgment void, however, is misplaced. He relies upon City of Birmingham v. Perry, 41 Ala.App. 173, 125 So.2d 279 (1960), wherein it was held that, when a court exceeds its jurisdiction in assessing punishment in a contempt proceeding, the judgment is void. In that case, the trial Court ordered the contemnor to hard labor. This clearly exceeds the punishment allowed for contempt convictions. Tit. 13, §§ 9, 143, Code.

Here, however, the award of attorney’s fees is not, strictly speaking, punishment. Also, such punishment was different in degree, whereas in this case, it was different in kind. The award of attorney’s fees has been allowed in other states. In such situations, however, the amount may not exceed the statutory penalty. O’Rouke v. Cleveland, 49 N.J.Eq. 577, 25 A. 367 (1892). See also 17 C.J.S. Contempt § 97, p. 274.

Criminal contempt is not an equity or civil action. As stated, it is sui generis. Therefore, the award of attorney’s fees is not proper. It must be considered as mere surplusage and severed from the judgment decree.

VIII.

The second case of contempt is based on Moody’s complicity in the filing of the amendment in Alimón. This also was the basis of civil contempt charges. Moody cannot be heard to complain that the basis of the criminal contempt adjudication is also the basis of civil contempt. In brief, counsel for Moody stated:

“Admittedly, assuming a violation of the January 6, 1975 order, this same conduct may be both a civil contempt and a criminal contempt.”

Noting the distinction between civil and criminal contempt, the same acts may justify a court resorting to both coercive and punitive measures. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Ex parte Griffith, 278 Ala. 344, 178 So.2d 169 (1965), and Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965).

IX.

Moody raises numerous objections to various items of documentary evidence and to certain statements which he contends are hearsay. Under the view taken that Petitioner can only be held in contempt for violation of the January 6, 1975, injunction, and for his refusal to appear in court, as ordered, on July 19, 1976, (cases two and four) we believe that the evidentiary issues are moot.

Conclusion

As has been shown, criminal contempt is a sui generis proceeding. Because it partakes of a criminal nature, however, a balance must be struck between the rights of the accused and the power of a Court to uphold its authority and dignity.

Utilizing this test, we hold the first charge of contempt must fail for lack of timeliness. Also, the third charge must be reversed for lack of specificity of the charge. As to each of the second and fourth charges, however, the sufficiency of notice, and the timeliness and specificity of each charge under all the circumstances, was appropriate; and the evidence was more than sufficient.

For the reasons stated above, the convictions of criminal contempt as to charges two and four are affirmed and the convictions of criminal contempt as to charges one and three are reversed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.

BLOODWORTH, MADDOX, ALMON and BEATTY, JJ., concur in part and dissent in part.

BLOODWORTH, Justice

(concurring in part and dissenting in part).

I concur in all of Mr. Justice Jones’ opinion for the majority except as to that part of Part II in which he finds the trial court to be in error for holding Moody in contempt on the third charge. He reasons that the show cause order was too general to apprise Moody of his alleged contumacious conduct.

I dissent from that part of the holding because I find the third show cause order clearly called upon Moody to show cause why he “should not be adjudged in criminal contempt . . . because of his disobedience and failure to comply with the provisions of the Order ... of April 30, 1975.” A copy of the April 30, 1975, order accompanied the show cause order. Thus, there could have been no doubt, as far as Moody was concerned, that he was charged with disobeying and failing to comply with all “the provisions of the order.” Surely, it would be an overly technical interpretation to insist that by not using the word “all” Moody wasn’t apprised as to which one of the eight requirements he failed to meet.

As stated in our case of Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948), with respect to the need for a written accusation in these cases, viz.:

“ ‘This does not mean that a written accusation is not essential. But it need not be verified except to support a warrant of arrest under § 5, supra. But the form of it is not material if it sets out the charges in such manner as to apprise him of the exact nature of it, and what he is called upon to defend.’ (Emphasis supplied.)”

MADDOX and BEATTY, JJ., concur.

ALMON, Justice

(concurring in part and dissenting in part):

I concur in the opinion of Mr. Justice Jones except that part which holds that the first charge must be reversed for laches.

The primary case out of which the contempt arose was active and had not been finally concluded. Additionally, there was no showing of prejudice occasioned by the delay.

BEATTY, Justice

(concurring in part and dissenting in part):

I concur with the opinion of Mr. Justice Jones except in two aspects: that part of his opinion which holds that the first charge of contempt must be reversed for laches, and that part dealing with notice to Mr. Moody of his contemptuous conduct.

While I agree that the circumstances of each case will determine the effect of lapse of time on the contempt charge, there is no proof here that the alleged contemnor was prejudiced by any delay in bringing the first charge or that the delay in bringing it was unreasonable. Moody had an ample opportunity to introduce evidence of prejudicial delay and simply failed to introduce any such evidence. Under those circumstances, I believe the trial court is entitled to the presumption of correctness in his ruling.

In connection with whether or not the trial court gave the proper notice of the contempt charge to Moody, I wish to align myself with the opinion of Mr. Justice Bloodworth.

MADDOX, J., concurs.


author: EMBRY, Justice.

text:
    Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, etc., et al.
    SC 2215.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Nov. 10, 1977.

      William H. Mills of Clark & James, Birmingham, Newman, -Shook & Newman, Dallas, Tex., Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    Drayton Nabers, Jr. and William A. Robinson, Birmingham, for Protective Life Ins. Co.
    James W. Webb and Edwin K. Livingston, Montgomery, for the Receiver, Charles H. Payne.
   EMBRY, Justice.

Shearn Moody, Jr., appeals from a judgment of the Circuit Court of Jefferson County entered 1 November 1976, adjudging him in civil contempt on account of matters arising from receivership proceedings involving Empire Life Insurance Company of America.

The genesis, nature, and history of the Empire receivership are reported in Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976). Only a brief review of the pertinent facts relating to this appeal is needed here.

On 6 January 1975, the Circuit Court of Jefferson County issued a permanent injunction enjoining Moody and others from filing, or aiding in the filing of, any lawsuit, complaint or legal claim, in any court, related to the Empire receivership or the implementation of any order or decree of the circuit court, without the circuit court’s pri- or approval. This court upheld the injunction on the basis it was expressly authorized by Tit. 28A, § 624(2), Code (Insurance Code), and supported by the undisputed evidence of record. See Moody v. State ex rel. Payne, supra.

In an order of the circuit court of 30 April 1975, Moody was held in civil contempt of the 6 January injunction for filing on 28 January 1975, in the United States District Court, an amended complaint in Allmon v. Bookout, Middle District of Alabama, Case No. 74-377-N, without obtaining the permission of the circuit court to do so. Alimón was nothing more than an attempt on Moody’s behalf to stop the liquidation of Empire and to regain possession of its principal assets. The 30 April order prescribed that Moody do the following in order to purge himself of contempt:

“(a) Fully comply with all of the provisions of the Court’s decree of January 6, 1975.
“(b) Appear in person before this Court on May 7, 1975, at 8:00 o’clock, A. M., in Room 223, Jefferson County Courthouse, 710 North 21st Street, in the City of Birmingham, Alabama, and then and there explain to this Court:
“(i) the reasons why the registered letter mailed to Moody on or about February 3, 1975 bearing the return address of this Court was not accepted by Moody when delivered to him;
“(ii) the reasons why Moody failed to appear before this Court at the proceedings held herein on March 10,1975;
“(c) Take whatever action may be necessary to withdraw or cause to be withdrawn any and all support (financial or otherwise), aid or assistance which the said Shearn Moody, Jr. has provided or continues to provide to any of his agents, servants, employees or attorneys, which support, aid or assistance relates to the filing or maintenance of that certain case now pending on appeal from the United States District Court for the Middle District of Alabama, Northern Division, being Case No. 74-377-N, styled as follows: WILLIE ALLMON VS. JOHN G. BOOK-OUT, ET AL.
“(d) File with this Court, within ten (10) days after the entry of this Order, a sworn statement setting forth in detail an accounting of all fees paid and other compensation or things of value furnished, since November 1, 1974 by or on behalf of Moody to any of the following persons or firms: Donald L. Collins; A. Eric Johnston; the firm of Collins & Johnston; Dale R. Major; Scott E. Manley; the firm of Saxe, Bacon, Bolen & Manley or any of its members or employees.
“(e) Require that each of the foregoing persons or firms or employees immediately furnish to the said Shearn Moody, Jr. sworn statements setting forth in detail:
“(i) the amount of any and all fees received by the foregoing persons from Moody or his agents or persons acting in concert with Moody or his agents since November 1, 1974;
“(ii) the amount of any and all funds expended by the foregoing persons since November 1, 1974, which funds relate in any way to the Alimón lawsuit, the affairs of Empire, its Receiver, or the receivership estate; and
“(iii) the exact purpose for which such expenditures were made, identifying with particularity the lawsuit, legal proceeding or other matter to which such expenditures were or are related.
The aforesaid sworn statements shall also itemize with particularity all funds or other compensation advanced by the foregoing persons, firms or employees to any other persons or firm in connection with the Alimón lawsuit. Upon receipt of said sworn statements by Moody, the same shall be forthwith filed with this Court.
“(f) File with this Court within ten (10) days after the entry of this Order a sworn statement setting forth in detail a record of all meetings and conferences attended by Moody since November 1, 1974 at which the Alimón lawsuit or the matters and things alleged in the Alimón complaint as amended came under discussion. Said sworn statement shall include the dates and places of any such meeting and conference and the names of all persons present.
“(g) Discharge any and all agents, servants, employees, and attorneys presently employed, directly or indirectly, by or on behalf of Moody, whose employment is or has in any way related to the filing or the litigation of the Alimón suit, unless it be affirmatively shown under oath that any such person had no knowledge of this Court’s injunction of January 6, 1975; and provide this Court with written evidence of each such discharge within ten (10) days of entry of this order.
“(h) Appear in person before this Court on May 12, 1975, at 8:00 o’clock, A. M., in Room 223, Jefferson County Courthouse, 710 North 21st Street in the City of Birmingham, Alabama, and at such further times and places as the Court may direct, and show to the Court that this Order has been fully complied with.
“(i) Pay to Protective Life Insurance Company and the Receiver any and all costs and expenses incurred by them as a result of the failure and refusal of Moody to comply with the January 6,1975 order, including, but not limited to, all costs of the contempt proceeding, including costs of investigation, preparation for and conduct of such proceeding, the costs of defending against the Alimón suit, and any and all reasonable attorneys’ fees.
“(j) Promptly comply with any further orders of this Court relating to this matter.”

On 16 June 1976, pursuant to terms of the 30 April order, the circuit court in an ex mero motu order, commanded Moody to appear before the court on 19 July 1976, to demonstrate he had purged himself of civil contempt and had fully complied with the 30 April order.

At the 19 July hearing, after denying Moody’s request for a continuance because of his illness and inability to attend, oral testimony was taken and documentary evidence received on behalf of Protective Life Insurance Company, Charles H. Payne, and Moody; all interested parties in this controversy.

On 1 November 1976, the circuit court rendered the judgment which is the subject of this appeal:

“ONE: Shearn Moody, Jr. has failed to purge himself of civil contempt of this Court.
“TWO: Shearn Moody, Jr. has failed to comply with the Order of this Court entered April 30,1975. Moody specifically failed, inter alia, to take the actions required by paragraphs (c), (e), (g), (h) and (j) as set forth on page 7 et seq. of said Order.
“THREE: Shearn Moody, Jr. is hereby ordered to pay to Protective Life Insurance Company and the Receiver any and all costs, damages, expenses incurred by them as a result of Moody’s failure to purge himself of civil contempt, including, but not limited to, those incurred by reason of the appeal in the Alimón action and the proceedings on remand in that action. As regards Protective, determination of the amount of such damages, etc., shall be made at the hearing presently scheduled for determination of the amount of the default judgment entered against Moody and in favor of Protective in the ancillary proceedings. As regards the Receiver, determination of the amount of such damages, etc., shall be made at the time of the hearing on the Receiver’s petition for damages against Shearn Moody, Jr. in the ancillary proceedings.
“FOUR: Protective is entitled to recover and Moody is hereby ordered to pay all costs and expenses incurred by reasons of the investigation, preparation for, and conduct of the civil contempt proceedings, including, but not limited to, the proceedings herein on July 19,1976. Protective’s counsel is further entitled to recover and Moody is hereby ordered to pay reasonable attorneys’ fees attributable to the civil contempt proceedings. The amount of such costs, expenses, and attorneys’ fees to be awarded shall be determined by the Court at the hearing presently scheduled for determination of the amount of the default judgment.
“FIVE: Shearn Moody, Jr. is hereby ordered to comply with any further orders, decrees, and judgments of this Court relating to this matter.”

We cannot reach the merits of this review. A procedural question disposes of this case. In a motion to dismiss filed with this court, and in brief, Protective and Payne urge this court to dismiss Moody’s appeal on the ground the judgment appealed from is not a final judgment within the meaning of § 754, Tit. 7, Code.

Appellees contend the first two paragraphs of the decree merely declare Moody has failed to purge himself of civil contempt and has failed to comply with the 30 April order. Further, they add, the second two paragraphs ordered Moody to pay to Protective, and to the Receiver, certain damages sustained by them as a proximate consequence of the contempt; this is expressly interlocutory in that determination of damages is specifically set for hearing at a future date.

In opposition, Moody argues that a judgment may be final and support an appeal even though it leaves some issues undecided and some proceedings yet to be held. The test for finality of a judgment, Moody contends, is whether it ascertains and declares the rights of the parties. Moody submits that by this test the 1 November judgment is unquestionably a final judgment. We disagree.

Section 754 of Tit. 7, Code, provides for appeal to this court “From any final judgment or decree of the circuit court * * No authority need be cited for the proposition that a final judgment is necessary to give jurisdiction to this court on appeal.

The decisive issue raised by these contentions is whether an order and decree which establishes liability for damages but defers determination of the amount for later hearing is a final judgment. We answer no, and dismiss the appeal.

Last term we restated a definition- of “final judgment” in Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976). There we said:

“A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself, (citations omitted) All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own. A judgment for damages to be final must, therefore, be for a sum certain determinable without resort to extraneous facts, (citations omitted)”

Measured by these criteria, it is clear that the finality of the 1 November order and decree is defective due to the uncertainty of the amount of damages Moody is ordered to pay and postponement of their determination until a later hearing. No one would challenge the circuit court’s authority to assess the amount of damages owed, but there is want of finality on this material issue when it is set to be litigated later. There is no need to review the 1 November order and decree and then be faced with an appeal from the assessment of damages. This would conflict with our general policy against piecemeal review.

Where the amount of damages is an issue, as here, the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages. See McGowin Investment Co. v. Johnstone, 291 Ala. 714, 287 So.2d 835 (1973). The cases cited by Moody in support of his contention are factually distinguishable from the instant case; none of those cases involved judgments awarding damages which were to be assessed at a subsequent hearing. Moody, in oral argument, intimates there is statutory authority for this appeal because the 1 November order was a part of the Empire receivership proceedings as contemplated in § 622(5) of Tit. 28A, Code (Insurance Code), which provides:

“An appeal shall lie to the supreme court of Alabama from an order granting or refusing rehabilitation, liquidation, or conservation, and from every order in delinquency proceedings having the character of a final order or decree as to the particular portion of the proceedings embraced therein.” (emphasis added)

However, we do not hesitate to hold the same criteria applicable to § 754, Tit. 7, Code, are applicable to determine what has the character of a final order or decree within the purview of § 622(5), Tit. 28A, Code. Applying those criteria, we find the 1 November order fails to assess the damages in the portion of the receivership proceedings dealing with civil contempt in the particulars alluded to in that order.

Because of the adjudicatory nature of the 1 November order and decree, and the absence of any petition for a declaratory judgment, there is no need to address Moody’s final contention that the order and decree is appealable as a declaratory judgment. The 1 November order and decree is not a final judgment, complete and certain in itself; and therefore, the appeal must be dismissed as premature.

APPEAL DISMISSED.

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


text:
    Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, etc., et al.
    SC 2265.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Nov. 10, 1977.

      William H. Mills of Clark & James, Birmingham, Newman, Shook & Newman, Dallas, Tex., Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    Robert B. Crumpton, Jr., of Webb & Crumpton, Edwin K. Livingston, Montgomery, for appellees.
   EMBRY, Justice.

This is an appeal, or in the alternative a petition for writ of mandamus, to review an order entered by the Circuit Court of Jefferson County denying Shearn Moody’s motion for permission to file a complaint in the United States District Court for the Northern District of Texas. We deny the writ.

An excellent history of this controversy is reported in Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976). There we quoted, and upheld, the circuit court’s order and injunction of 6 January 1975; the crux of this appeal. That order enjoined Moody, and others, from filing any lawsuit, complaint, legal claim, or amendment thereto, which related to the receivership of Empire Life Insurance Company of America without the prior approval of the circuit court. Only a chronological summary of the events after the issuance of the 6 January 1975 injunction is needed for an understanding of this opinion.

On 23 June 1975, Moody requested permission from the circuit court to file an amended counterclaim in a civil action then pending in the United States District Court for the Northern District of Texas. Permission was granted 7 July 1975, however, Moody was denied leave to amend his counterclaim by the United States District Court. Thereafter, on 19 May 1976, Moody moved the circuit court for permission to institute a new suit in the United States District Court based upon the same claims asserted in the amended counterclaim. Moody’s motion was denied without prejudice by the circuit court on 19 August 1976.

On 28 September 1976, Moody filed a pleading in the circuit court entitled “Motion for Permission to File Complaint,” which renewed his request to file an independent action in the federal district court. The proposed complaint attached to that motion asserted a claim based on a violation of the Sherman and Clayton Anti-Trust Acts against the State of Texas, John G. Bookout, Alan W. Horne, Clay Cotten, and A. Gene Sykes. The circuit court, on 29 November 1976, denied that motion. Moody appeals and in the alternative prays for the writ of mandamus; both designed to review the propriety of the order denying his motion to file his action in the federal district court in Texas.

The order denying Moody’s motion is not an appealable one for the same reasons the order in Moody v. State ex rel. Payne, Ala., 351 So.2d 547, released contemporaneously with this opinion, is not. Mandamus is the proper method of review of the order since Moody seeks to compel the trial judge to permit him to file the Texas federal court action. The order falls within that category which are interlocutory in nature and as to which an adequate remedy is not available on appeal; e. g., denying a motion to strike a demand for jury trial. See Whitman v. Mashburn, 286 Ala. 209, 238 So.2d 709 (1970).

Moody says the issue presented for review is whether an Alabama court may enjoin a party from instituting an action in a federal court asserting a claim under a federal statute. We would state it as whether: under the circumstances of this case; under the Constitutions of the United States and Alabama; and the federal and Alabama law, the trial court had the authority to prohibit Moody from filing a complaint in federal court?

For an overview of other aspects of the liquidation proceedings involving Empire Life Insurance Company see Moody v. State ex rel. Payne, 344 So.2d 160 (Ala.1977), and Ex parte Moody, Ala., 351 So.2d 538 (19 Aug. 1977).

Moody says that under the state and federal constitutions he has an unfettered right to file suit in federal court because his claim was based upon violation of the federal anti-trust laws. He says his right cannot be abrogated by a state court and cites Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), in support. Donovan was the subject of much discussion in Moody v. State ex rel. Payne, supra, wherein we recognized as the law, the proposition that state courts are completely without power to restrain a federal court from proceeding with an In personam action. Moody argues that Donovan supports his position because the proposed action which he sought permission to file is a claim for money damages under the anti-trust laws; therefore, purely in personam in nature. Moody says further that the receiver and the receivership estate are not involved. We disagree.

In Moody, we also quoted the exception to the rule as stated in Justice Black’s opinion in Donovan :

“ * * * An exception has been made in cases where a court has custody of property, that is, proceedings in rem or quasi in rem. In such cases this Court had said that the state or federal court having custody of such property has exclusive jurisdiction to proceed. * * * ” 295 Ala. 299, 307, 329 So.2d 73, 79-80.

We unequivocally held in Moody that the Empire receivership was an in rem or quasi in rem proceeding and the injunction of 6 January 1975 was a proper exercise of the circuit court’s power. We adhere to that holding.

Hence, the sub-issue raised is whether Moody’s proposed claim to be filed in federal court involved the Empire receivership proceeding. Again we answer in the affirmative. Our conclusion is drawn from a careful reading of Moody’s proposed complaint. It names as defendants John G. Bookout, who was the receiver of Empire in Alabama until he was succeeded by Charles H. Payne; Alan W. Horne, former insurance commissioner of Arkansas; Clay Cot-ten, the insurance commissioner of Texas; and A. Gene Sykes, present insurance commissioner of Arkansas. The State of Texas was named as defendant to the extent its former Attorney General Martin, Clay Cot-ten, and other agents of the state were acting within the scope of their authority. All of the alleged defendants were named in the 6 January 1975 injunction either personally or in a capacity related to the Empire receivership.

Although Moody’s proposed complaint alleges the action arises under the federal anti-trust laws, the complaint centers around an alleged conspiracy of the named defendants. Paragraph four of the complaint states:

“4. Defendants State of Texas, Book-out, Horne, Cotten, and Sykes have entered into one or more illegal plans, compacts and conspiracies and courses of conduct between and among themselves and one or more of the following persons: Crawford Martin, Attorney General of the State of Texas, Charles E. (Buster) Hunter, former Deputy Insurance Commissioner of the State of Alabama, Richard Marcus Goode an insurance company broker, Stuart Hopps, an insurance company broker, and other unnamed defendants presently unknown to Moody, secretly and illegally, to use the powers of their respective public offices, in abuse and in excess of their authority, to wrest and to separate control of the management of the affairs of Empire from Moody; to interfere with Moody’s relationship with Empire as controlling stockholder, Chairman of the Board and President of Empire; to prohibit Moody from conducting business through Empire; to place Empire into receivership; prevent its rehabilitation; force its reinsurance and to supress, eliminate and destroy Moody in the insurance business and Empire as a viable entity competing in the insurance business in Alabama, Texas, Arkansas and elsewhere all for Defendants own personal and political purposes and profits. Alternatively, the above-mentioned acts and practices in restraint of trade and for the purpose of interfering with business relationships of Moody were engaged in by the above-named Defendants, individually and said defendants were aided and abetted in such acts and practices by other named Defendants and additional parties not named as Defendants. The illegal plans and actions of Defendants were not discovered by Moody until after June, 1974. The above-mentioned acts of the named Insurance Commissioners were conducted under color of their office as Insurance Commissioners but known by said Defendants to be illegal and outside the scope of the authority granted by their office and were undertaken intentionally, knowingly and willfully, without substantial justification and with intent to interfere with the business relationship between Empire and Moody and with intent to force Moody and Empire out of the insurance business in Defendants’ states.”

Paragraph five of the complaint concerns an important aspect of any receivership proceeding — valuation of an asset. It reads:

“5. The background of the above-described conspiracy and actions of Defendants is as follows: From 1964 to 1968, Empire, with its principal asset as % of the Vs life estate interest in the Libbie Shearn Moody Trust, acquired and merged or reinsured into it the following companies in states outside of Alabama: Consolidated American Life Insurance Co., Chicago, Illinois (1964), Empire Life Insurance Company of America, Little Rock, Arkansas (1965), National Empire Life Insurance Co., Dallas (1968), American Trust Life Insurance Co., Wichita Falls, Texas (1968), Capital Security Life Insurance Co., Springfield, Illinois (1968), and Centennial Reserve Life Insurance Co., Great Falls, Montana (1968). Pursuant to an examination conducted by the Insurance Departments of the States of Texas, Arkansas and Alabama, as of December 31,1965, the Moody Trust interest valuation of $14,213,440 had been expressly approved by the Insurance Commissioners of Arkansas, Texas and Alabama. In the majority of the mergers and reinsurances engaged in by Empire in 1964 through 1968, this trust interest valuation again was expressly approved and ratified by the Insurance Commissioners of the States of Arkansas, Texas and Alabama. For example, in 1968, Empire reinsured American Trust Life Insurance Company and this reinsurance was approved by Defendant Cotten in 1968 after a hearing in which Cotten found that Empire was in fact solvent, which finding was predicated upon the aforementioned $14,213,440 valuation.”

Considering the proposed complaint, and the parties sought to be impleaded as defendants, there is no question the action inextricably involves the Empire receivership.

Viewed as a whole, the picture is clear that the proposed action was nothing more than another ploy of Moody’s to interfere with, delay and eventually stop the Empire receivership proceeding. As such, the proposed action falls within the operative ambit of the 6 January 1975 injunction; thus the circuit court’s order denying Moody’s request cannot be considered erroneous or an abuse of discretion.

For the reasons stated herein, we uphold the circuit court’s order denying Moody’s request to file an independent action in federal court.

WRIT DENIED.

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


text:
    “AUTOMATIC” SPRINKLER CORPORATION OF AMERICA et al. v. The B. F. GOODRICH COMPANY, a corporation.
    SC 2220 and SC 2220-A.
    Supreme Court of Alabama.
    Sept. 16, 1977.
    Rehearing Denied Nov. 10, 1977.

      M. McCoy Davidson, Jr., and Robert Land of Roberts & Davidson, Tuscaloosa for “Automatic” Sprinkler Corporation of America, et al.
    Robert E. Parsons, Birmingham, for H. K. Ferguson Co.
    Thad G. Long and James W. Gewin, Birmingham, for appellee.
   EMBRY, Justice.

These are appeals by “Automatic” Sprinkler Corporation of America (A.T.O.) and H. K. Ferguson Company from partial summary judgments entered in behalf of B. F. Goodrich Company against both of the appellants, respectively. The appeals are premature and will be dismissed.

B. F. Goodrich filed an action against H. K. Ferguson, A.T.O. and General Electric Company seeking damages on account of breach of contract, negligence, and breach of express and implied warranties, resulting from a spill of a highly toxic environmental contaminant on plaintiff’s premises. The trial court, on motion of B. F. Goodrich for partial summary judgments on the issue of liability against H. K. Ferguson and A.T.O., entered the following separate judgments:

[As to defendant H. K. Ferguson]
“1. There is no genuine issue as to any material fact and the plaintiff is entitled to a summary judgment in its favor against the defendant The H. K. Ferguson Company as a matter of law on the issue of said defendant’s liability to plaintiff under Counts Nine and One of the amended Complaint.
“2. There is no just reason for delay and a final judgment as provided herein is expressly directed to be entered.
“3. Plaintiff pursuant to Counts Nine and One, separately and severally, of the amended Complaint does hereby recover from the defendant The H. K. Ferguson Company all of the losses, damages and expenses of plaintiff arising out of the pyranol spill which is the subject of the amended Complaint, including, but not limited to, attorneys’ fees and costs of this action.
“4. The plaintiff’s recovery under this Order or under any or all orders entered in this action shall in the aggregate be all of the losses, damages and expenses of plaintiff arising out of the pyranol spill which is the subject of the amended Complaint, including, but not limited to, attorneys’ fees and costs of this action.
“5. The monetary amount of plaintiff’s recovery shall be determined hereafter in these proceedings.”
[As to defendant A.T.O.]
“1. There is no genuine issue as to any material fact and the plaintiff is entitled to a summary judgment in its favor against the defendants “Automatic” Sprinkler Corporation of America, “Automatic” Sprinkler Corporation of America, a division of American La France Inc., and “Automatic” Sprinkler Corporation of America, a division of A — T-0 Inc., as a matter of law on the issue of said defendants’ liability to plaintiff under Count Four of the amended Complaint.
“2. There is no just reason for delay and a final judgment as provided herein is expressly directed to be entered.
“3. Plaintiff pursuant to Count Four of the amended complaint does hereby recover from the defendants “Automatic” Sprinkler Corporation of America, “Automatic” Sprinkler Corporation of America, a division of American La France Inc., and “Automatic” Sprinkler Corporation of America, a division of A-T-0 Inc., separately and severally, all of the losses, damages and expenses of plaintiff arising out of the pyranol spill which is the subject of the amended complaint, including, but not limited to, attorneys’ fees and costs of this action.
“4. The plaintiff’s recovery under paragraph 3 above of this Order or under any or all orders entered in this action shall in the aggregate be all of the losses, damages and expenses of plaintiff arising out of the pyranol spill which is the subject of the amended Complaint, including, but not limited to, attorneys’ fees and costs of this action.
“5. The monetary amount of plaintiff’s recovery shall be determined hereafter in these proceedings.”

A.T.O. and H. K. Ferguson appeal and urge error in the entry of the judgments on several grounds. We cannot address the issues raised by them because the judgments are not final and will not support an appeal; therefore we lack jurisdiction. No permission to appeal from an interlocutory order has been granted pursuant to Rule 5, ARAP.

It is noted that the judgments contain language derived from Rule 54(b), ARCP, which states:

“ * * * the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. * * * ” (emphasis added)

The provision of Rule 54(b) contemplates a final judgment as to less than all the parties or less than all claims. Rule 56(c), ARCP, provides for a judgment, interlocutory in character, adjudicating liability alone, precisely what was entered by the trial court in this case. That the judgments in this case are interlocutory, not final, cannot be questioned. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). That a judgment is not final when the amount of damages has not been fixed by it is unquestionable. Moody v. State ex rel. Payne, 547 So.2d 351 (Ala.1977).

Although appellee filed a motion to dismiss the appeals, it was based on the untimeliness of the filing of these appeals. We find the appeals are due to be dismissed but for a different reason: because the judgments are not final. Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So.2d 738 (1972).

APPEALS DISMISSED.

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


text:
    FORD MOTOR CREDIT COMPANY, a corporation v. Verbin BYRD.
    SC 2226.
    Supreme Court of Alabama.
    Sept. 16, 1977.
    Rehearing Denied Nov. 10, 1977.

      Michael D. Knight, Mobile, for appellant.
    Leon G. Duke, Jr., Mobile, for appellee.
   EMBRY, Justice.

Defendant Ford Motor Credit Company appeals from a judgment entered on a jury verdict in favor of plaintiff Verbin Byrd in the amount of $5,435.

The case centers around the repossession of a 1970 Ford Torino. On 21 November 1972 Byrd filed a two count complaint in the Circuit Court of Mobile County in count one of which he claimed damages for the conversion of his automobile by Ford Motor Credit Company (FMCC). Count two alleged FMCC, through its agent, servant or employee, fraudulently induced Byrd to deliver to the agent of FMCC his automobile which was impounded and placed in storage. Both counts claimed punitive damages; with respect to the latter count a motion to strike the claim for punitive damages was granted. Thereafter Byrd amended to add count three; alleging the wrongful taking of the automobile. In it, punitive damages were also claimed. FMCC answered by general denial of all allegations of the amended complaint.

The case went to the jury on the amended complaint and a verdict for $10,435 in favor of Byrd was returned. FMCC filed its motion for judgment notwithstanding the verdict, or in the alternative for a new trial, which was denied. However, the trial court remitted the verdict to $5,435, to which Byrd consented, and FMCC appeals from the judgment entered thereon.

The facts essential to this appeal are: On 22 October 1969 Byrd purchased from Bas-sett Ford, Inc., of Citronelle, Alabama, a 1970 Ford Torino under a retail installment contract which was assigned to FMCC. The payment schedule provided that Byrd would pay 36 monthly installments commencing on 6 December 1969. On 13 September 1972 the automobile was repossessed. The circumstances surrounding the repossession are conflicting, but both parties concede Byrd was contacted by Sandy Craig, a confessed “repo man,” at Byrd’s home to discuss whether payments on the automobile were in arrears. Craig contending they were; Byrd contending to the contrary. As a result of this conversation, and at Craig’s request, Byrd went to Bassett Ford, parked his automobile in front of that place and went inside to review his receipts against records of his account. While he was occupied in disputing that he was in default the automobile was removed from where he parked it and locked up in a storage area behind Bassett’s building. The evidence about these events clearly supports the jury’s right to conclude that Byrd was lured to Bassett Ford so that possession of his auto might be obtained without his knowledge and consent, through stealth and trickery.

FMCC says there are four issues presented for review, involving what it claims to be prejudicial error committed by the trial court. The first, and decisive one, is said to be that:

The court erred in refusing the motion for directed verdict filed by Ford Credit, since Byrd was clearly in default in his payments at the time of repossession, and there was no breach of the peace.

The other alleged errors are said to consist in the giving of certain written jury instructions in behalf of Byrd and refusal of certain ones requested by FMCC. We find no error and affirm.

The claims stated in Byrd’s amended complaint are based on the theory that his auto was converted by FMCC after possession of it was obtained wrongfully through trickery and fraud after leading Byrd to believe he was being asked to drive it to Bassett Ford, where it was repossessed, so that there a good faith discussion of whether his account was in arrears would be continued.

FMCC says there can be no wrongful taking and conversion of Byrd’s auto because it turns out he was in default and there was no breach of the peace in the taking. Alabama’s version of the UCC is cited. Section 9-503, Tit. 7A, Code, provides:

“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process, if this can be done without breach of the peace or may proceed by action. * * * ”

Numerous cases of this court are cited in support of FMCC’s contention; also decisions of the Court of Appeals, the Fifth Circuit, and one of a United States District Court. Some of these decisions involved cases where their right to recover was grounded on theories of trespass to chattels or on realty; others of them based on various other theories. A careful examination of them, however, reveals one salient distinction from this case. At the very moment of repossession of the chattel in the cited cases there was not a contemporaneous bona fide dispute being made by the debtor regarding his or her default. FMCC argues that the evidence in this case established Byrd was at least one payment in default at the time the automobile was repossessed, therefore he cannot maintain an action for conversion, since by being in default, Byrd had no legal title to the automobile and no immediate right to possession; both essential elements of his claim.

What about § 9-503? Is self-help repossession permitted under all circumstances unless there is a concurrent breach of the peace. It is not. We cannot interpret § 9— 503 to permit obtaining possession through trick, without knowledge upon the part of the debtor. To interpret § 9-503 to allow repossession in these circumstances would encourage practices abhorrent to society: fraud, trickery, chicanery, and subterfuge, as alternatives to employment of judicial processes that foster the concept of ours being a government of laws and not of men. If self-help erodes that concept then self-help must be limited as we will limit it here. Condoning FMCC’s conduct under the circumstances presented here would defeat the desirable and fundamental policy of discouraging extrajudicial acts by citizens when those acts are fraught with the likelihood of resulting violence.

Public policy favors the resolution of disputes by resort to the courts and the judicial process. Folmar & Sons v. Copeland, 57 Ala. 588. Unilateral action by FMCC, that might well have resulted in a breach of the peace and involvement of the criminal statutes, could easily have been avoided by suit to recover the automobile aided by prejudgment seizure as provided in Rule 64(b), ARCP. Although speaking of an action for trespass in the repossession of an automobile, our court of appeals said of the rightful owner of a chattel: “ * * * If he cannot regain possession of his property peaceably, he must appeal to the courts of the country. * * * ” Singer Sewing Machine Co. v. Hayes, 22 Ala.App. 250, 114 So. 420 (1927). In citing that case with approval, as correctly enunciating the rule, the Supreme Court of Mississippi had this to say:

“ * * * The majority of people are honest and yield peaceable obedience to their contractual obligations. When they do not so yield, it is, in most cases, because there is some reason worthy of impartial examination or consideration why they do not. To allow the holder of such a contract to be his own judge, and to execute his judgment in any violent or forcible way he might choose, would be contrary to good order would be provocative of retaliatory violence and breaches of the peace; wherefore, as a matter of public policy, no such right can exist.” Commercial Credit Co. v. Spence, 185 Miss. 293, 184 So. 439 (1938).

Neither can the holder of a contract be his own judge and execute his judgment by artifice or trickery.

“ * * * Therefore, when appellant, as appears, by artifice or trickery obtained possession of the mortgaged property for one purpose, and asserted the right to retain such possession for another purpose, there was a conversion by it of appellee’s property, and the action must be treated as one for conversion * * ” Cable Co. v. Greenfield, 196 Ky. 314, 244 S.W. 692 (1922).

The law cannot permit its subversion by devices such as here employed by FMCC in a self-help repossession. Possession of a chattel obtained through fraud, artifice, stealth, or trickery without consent of the owner, implied or expressed, is wrongful and will support an action for the conversion of the chattel.

FMCC also asserts prejudicial error in the trial court’s refusal of four of its requested written jury charges and in the giving of two of Byrd’s. The trial court’s oral instructions adequately covered the matters contained in FMCC’s refused charges and Byrd’s requested charges were correct in light of the oral charge, therefore, no error resulted.

AFFIRMED.

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


author: BEATTY, Justice. FAULKNER, Justice

text:
    John McELRATH, etc. Individually and d/b/a McElrath Construction Co., et al. v. CONSOLIDATED PIPE & SUPPLY CO. et al.
    SC 2009-2009-A.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Nov. 10, 1977.

      James E. Clark, of London, Yancey, Clark & Allen, Birmingham, for John and Juanita McElrath.
    Thomas E. Maxwell, Birmingham, for Hartford Accident and Indemnity Co., appellant-appellee.
    James A. Harris and Thomas H. Brown, of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellees.
   BEATTY, Justice.

Appeal by John McElrath, d/b/a McEl-rath Construction Company (McElrath) and his surety, Hartford Accident and Indemnity Company from a judgment rendered against them based upon a jury verdict. We reverse and remand.

The plaintiff, Consolidated Pipe and Supply Company (Consolidated) is a distributor of polyvinyl chloride (“PVC”) pipe, a product manufactured from a petroleum derivative. Consolidated obtained its major supply of pipe from Ethyl Corporation. The defendant McElrath is a general contractor specializing in the installation of water systems utilizing this type of pipe.

In December, 1973 Ethyl Corporation notified Consolidated of a new pricing schedule effective December 17. At about this time the East Cullman Water District was asking for bids for installation of a water system. A Consolidated salesman, Mike Currier, discussed this job with McElrath with a view toward obtaining his order for the pipe requirements. There is a dispute concerning whether or not the price changes were discussed by them. Evidence was introduced establishing that Consolidated had mailed price quotations to various contractors, including McElrath, based upon Ethyl’s increases, and that immediately before the submission of bids on the Cullman job “cut prices” (discounts on some of the materials) were transmitted to McEl-rath’s office. It was Consolidated’s position, moreover, though disputed by McEl-rath, that McElrath’s prices were not firm but were based upon a possible escalation clause at the bottom of the price quotation mailed to him, and that this lack of firmness in price had been pointed out to McEl-rath several times.

In any event, McElrath’s bid was accepted and a contract was entered into between East Cullman and MeElrath. This contract did not contain a materials escalation clause. Based upon that contract MeElrath ordered pipe from Consolidated. It was then discovered that the event now known as the Arab Oil Embargo had created supply problems, hence East Cullman, following a public meeting to consider the problem, granted MeElrath an extension of time for commencing the work. A few days later Consolidated obtained McElrath’s agreement to absorb the escalation of prices. Shortly thereafter MeElrath began to pick up the pipe required for the job.

When MeElrath failed to pay the balance due upon his account for pipe supplied to him, Consolidated filed this suit against him and his surety, Hartford on February 10, 1975. In his answer MeElrath denied that he had purchased the materials on an escalated price basis; he maintained that he had consented to pay an escalated price for the materials under economic duress. He also counterclaimed for conversion, breach of contract, and breach of warranty. Hartford cross-claimed against MeElrath to the extent of any recovery by Consolidated against MeElrath, plus costs and attorney’s fees, and later Hartford joined Mrs. McEl-rath as a third party because she was a co-signer of their indemnity agreement.

Following the general denial by Consolidated of McElrath’s counterclaims on June 26, 1975, the case was set for trial on December 15, 1975 but was continued and reset for an April 19, 1976 trial. From the record it appears that this continuance was made to allow counsel to file amended answers.

When the case was called for trial on April 21, 1976, MeElrath filed an “Amendment to Defendants’ Answer and Counterclaim.” This pleading was introduced with language which included the phrase “with leave of Court obtained,” however the subsequent action of the trial court deprecates any such permission. Paragraph I denied an agreement based upon escalated prices, maintaining that the purchase was based upon discounted (and hence firm) prices. This paragraph also asserted that the purchase agreement MeElrath executed, which committed him to pay prices prevailing on the date of delivery, was based upon duress.

In Paragraph II MeElrath alleged that he was not indebted to Consolidated because the balance he allegedly owed did not give him credit for sums owed to him under his counterclaim.

Paragraphs III and IV were general denials.

Paragraph V contained three sub-parts. Part (a) alleged fraud on the basis of three separate misrepresentations: (1) that Consolidated represented to MeElrath prior to his bid that the pipe was on hand; (2) that Consolidated represented to MeElrath that it could deliver the materials to the job site upon one day’s notice; and (3) at the time Consolidated made firm (price) quotations to MeElrath it did not intend to fulfill his order at those prices but upon “whatever increased price it could force upon the defendant.”

Part (b) alleged as a conclusion that the contract violated the good faith provisions of Title 7A, § 1-203 of the Alabama Code (UCC), and that Consolidated was guilty of bad faith in its attempted enforcement of the contract.

Part (c) alleged as a conclusion that the agreement was harsh, oppressive, unfair and unconscionable under Title 7A, § 2-302(1), Alabama Code (UCC).

Paragraph VI adopted all of paragraph V, referring to paragraph VI as an amendment to its counterclaim, and claimed damages “on account of the fraud, unconscionable conduct and bad faith of the plaintiff.

In response to this Amended Answer and Counterclaim, Consolidated filed a Motion to Strike. The trial court later disallowed those portions of McElrath’s amendment which dealt with fraud, bad faith and un-conscionability, basing its decision upon the tardiness of MeElrath in raising those particular issues and the resulting prejudicial effect upon Consolidated. The trial court allowed the amendments pertaining to breach of contract and duress because these were subjects which had been pleaded earlier by the parties and upon which discovery had proceeded for almost a year.

At the close of the evidence following a week-long trial, McElrath filed a “Further Amendment to Defendants’ Answer and Counterclaim.” This pleading adopted and supplemented paragraph V of the amended answer, in particular part (a), and alleged that, while Consolidated was aware that its supplier would escalate prices from January to May, 1974, it failed to communicate this information to McElrath, but lulled the defendant into believing that the prices quoted to him prior to his bid had remained constant. It also alleged that an agent of Consolidated without informing him, coerced McElrath into consenting to the price increases which might be visited upon him not to exceed 5%, knowing that increases had already become effective and that others were imminent. It further alleged that McElrath was induced to consent to escalated prices by an offer of materials immediately, and that he was damaged because Consolidated supplied him with only small quantities until after the June 3 price increase, constituting bad faith and the equivalent of fraud.

Paragraph VI — A of McElrath’s “Further Amendment” amended the counterclaim by “adopting and supplementing” paragraph VI of the first amendment and also adopted in entirety paragraph V of the Further Amendment. This amendment, like its counterpart in the first amendment, was not denominated a counterclaim as required by Rule 7(a), ARCP.

These amendments were considered by the trial court which granted motions for “Summary judgment” against the defendants’ counterclaims dealing with breach of warranty, conversion, and fraud as real-leged in the amended counterclaim. “In other words,” said the Court, “the Court will define the issues to the jury that they are to decide and those counterclaims will not be among the issues which the Court will submit to the jury.”

The jury rendered a verdict in favor of consolidated for the full amount claimed by it, and in favor of Hartford on its cross-claim against McElrath, but with respect to its award to Hartford, initially the jury awarded only $5,646.67, the attorney’s fees. After giving instructions on this subject, the trial court resubmitted the issues of the correct award to the jury which then rendered a verdict in favor of Hartford which included the primary claim plus Hartford’s attorneys’ fees.

Defendants’ motion for a new trial having been denied, this appeal followed.

In identifying the issues raised we have been required to consider a number of briefs and motions: From the appellant a main brief, a reply brief, a “last minute supplement to the reply brief,” a “brief post argument brief,” and a motion to strike the appellees’ briefs. The appellees have filed a main brief, a reply to the appellant’s supplemental brief, and a motion to strike appellant’s fourth brief. The appellant-appel-lee Hartford filed one brief. This prolific production has served to obfuscate the issues rather than illuminate them. However, the first issue concerns the propriety of the trial court’s ruling disallowing the defendants’ amendment made on the day of trial.

Rule 15(a), ARCP expresses a liberal policy when it states:

[A] party may amend his pleading without leave of court but subject to dis-allowance on the court’s own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires. . . . (emphasis added).

The Official Committee Comments are also helpful in our interpretation of Rule 15, ARCP:

Under the rule [15(a)] it will be entirely irrelevant that a proposed amendment changes the cause of action on the theory of the case or that it states a claim arising out of a transaction different from that originally sued on or that it caused a change in parties. . . . Normally, an amendment should be denied only if the amendment would cause actual prejudice to the adverse party. . . . (emphasis added).

Furthermore, the spirit of Rule 15, ACRP is explained by Champ Lyons, Jr. in his treatise 1 Alabama Practice p. 308 (1st ed 1973), which makes these comments about Rule 15:

Pleadings are a means, not an end, and the action should be resolved on its merits, not upon technicalities. Without the Rule’s permissive approach to the right to amend, the allegiance to substance over form which permeates these rules would not be attainable.

Although it is recognized that the trial court has broad discretion in determining what “the interests of justice” require, he must not be found to have exercised that discretion in an arbitrary manner. This rule also substantially conforms to Alabama practice under former rules of common law pleading. For example, in Farmer v. Hill, 243 Ala. 543, 11 So.2d 160 (1942), cited by the appellants, this Court observed:

Liberal rules of amendment both at law and in equity have found expression in statutes and rules of court, and have been given effect in judicial decisions as a well-established policy in the administration of justice. .

Federal courts likewise have inculcated a liberal policy in allowing amendments and Federal Rule 15(a), which is substantially the same as our own rule, has been the focus of numerous cases and treatises. Wright and Miller in their treatise 6 Federal Practice and Procedure: Civil § 1484, state:

Subdivision (a) encourages the court to look favorably on requests to amend. It states that ‘leave shall be freely given when justice so requires.’ This proposition has been reinforced by innumerable judicial pronouncements by the federal courts. . . . (footnote omitted) (emphasis added).

Also, the treatise 1A Barron and Holtzoff, Federal Practice and Procedure, § 442 comments:

Under this rule [15] leave to amend pleadings should be granted freely when justice so requires and the adverse party will not be prejudiced thereby, to clarify the issues and expedite the disposition of litigation. . . . (footnotes omitted) (emphasis added).
Rule 15(a) calls for liberality in allowing amendments, and the rules on amendments themselves are liberally construed by the courts, in order to ensure, so far as possible, that cases are decided on their merits, (footnotes omitted) (emphasis added).

For example, in Rosen v. Rex Amusement Co., 14 F.R.D. 75 (D.D.C.1952), the district court stated that liberality should be the rule with respect to amendments and that a mere change in the theory of recovery would not ordinarily preclude amendment. In accord, Donohue v. New York Life Ins. Co., 9 F.R.D. 669 (D.Conn.1949); Helene Curtis Industries v. Sales Affiliates, 105 F.Supp. 886 (S.D.N.Y.1952); International Ladies’ Garment W. U. v. Donnelly Garment Co., 121 F.2d 561 (8th Cir. 1941). It is apparent that the overwhelming weight of authority requires that amendments are to be liberally allowed.

The appellees argue that they would have been prejudiced by the allowance of the amendment and they cite Matlack, Inc. v. Hupp Corporation, 57 F.R.D. 151 (E.D.Pa.1972). That court, in discussing the propriety of allowing an amended answer made these comments:

Our survey of the cases interpreting rule 15(a) has not persuaded us that a finding of prejudice to the opposing party, although dispositive when present, is the only factor justifying a refusal to permit a change in theory. ... As we see it, a shift in theory should be denied, even in the absence of prejudice, where the party seeking to interpose it has been guilty of flagrant abuse, bad faith, or truly inordinate and unexplained delay. However, in the absence of these factors the question of prejudice should be the touchstone of the determination whether to permit the amendment. (footnote omitted) Moreover, in approaching that question, we believe that we must view the motion of prejudice broadly . . . (emphasis added).

The factor of prejudice was also discussed in Kerrigan’s Estate v. Joseph E. Seagram & Sons, 199 F.2d 694 (3rd Cir. 1952) where the Court stated that as a practical matter the only reason for not allowing an amendment is prejudice to the opposing party. In Fli-Fab, Inc. v. United States, 16 F.R.D. 553 (D.R.I.1954), the district court observed that an amendment must be prejudicial to the opposing party before a denial will be warranted. Barron and Holtzoff, supra, also explain the nature of prejudice:

Prejudice may be found, however, where the amendment will cause excessive delay or where a source of evidence has become unavailable or a statute of limitations would bar a new suit if the opposing party should lose the present action. . . . (footnotes omitted) (emphasis added).

Although the appellees assert that they would have been prejudiced by allowance of the amendment, they have not cited us any reference and we have found no proof in the record to support that contention. The appellees also argue that the amendment was tardy and the obvious inference was that it was used as a dilatory tactic. The record does not disclose a scintilla of evidence that the appellants’ amendment was interposed in a dilatory manner. Even though the trial court based its motion to strike the portions of the amendment dealing with fraud, unconscionability, and oppressiveness of the contract, on the ground of tardiness, there is no evidence that the amendment could have been made earlier. In view of the fact that appellants’ counsel did not finish the last deposition of Consolidated’s employees until March 29, 1976, with trial beginning on April 21,1976, there was not any showing that the delay was intentional or that bad faith existed in filing the amendment at the time of trial. Moreover, the appellants’ counsel took three other depositions after that date but before the trial.

In addition, the appellees argue that Vernon Carpet Mills, Inc. v. Rossville Spinning Corporation, 344 So.2d 1205 (Ala.1977), is controlling as to the present controversy. In that case the defendants filed an amended answer which included permissive counterclaims four days before the trial. The trial court granted the plaintiff’s motion to strike the defendants’ amendment and this Court found no error. However, that case is distinguishable because there a permissive counterclaim was asserted, which could have been brought in a later action, whereas here, the defendant has raised a compulsory counterclaim which will be barred by res judicata if it is later asserted.

The overwhelming weight of authority convinces us that the trial court abused its discretion when it refused to allow the amendment offered by the defendants. The reason this is so is because the amendment would have allowed proof of those allegations contained in it and the evidence so authorized could have required jury instructions on the elements of fraud as alleged. Furthermore, one remedy available to the plaintiff at that stage of the proceeding would have been to request a continuance, and the record shows that the defendants made such a request on behalf of the plaintiff but it was denied by the Court.

Even though we have found it necessary to reverse for the refusal to allow the proffered amendment, we cannot refrain from commenting that compliance with our procedural rules would have foreclosed the necessity for review on that issue. Indeed, Rule 1(c), ARCP, which mandates a construction of the rules “to secure the just, speedy and inexpensive determination of every action” has been frustrated in this case because of the absence of pre-trial discovery and amendment procedures provided by Rules 26 and 15, which could have been coordinated under the pre-trial procedure of Rule 16. Those rules are designed to prevent a willy-nilly approach to the formulation of issues, and their utilization reflects not only an economical attitude about court and lawyer time but a responsible approach to the interests of clients as well. The trial court itself cannot be criticized for the erroneous ruling which requires reversal, since the record shows that he did not appreciably participate in the case until the trial date, even though he was required to make the ruling which placed the case in its posture for our review. This Court is confident that a repetition of the procedural difficulties which led to our unfortunate, but necessary, ruling will not be repeated.

Because of the failure to grant the amendment, the trial court committed prejudicial error requiring a reversal. Due to this error, we need not consider the other issues presented.

Accordingly, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

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

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

FAULKNER, Justice

(dissenting).

I dissent.

The trial court has not abused its discretion by disallowing the amendment. Filing the amendment resulted in prejudice to Consolidated. All of the fraud acts complained of were known, or should have been known, before the case was called for trial.

The trial court should be affirmed. Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975); Stead v. Blue Cross-Blue Shield of Alabama, 346 So.2d 1140 (Ala.1977).

BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: MADDOX, Justice.

text:
    Doris SEWELL v. J. R. HARRIS et al.
    SC 2332.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Nov. 18, 1977.
    Lydia Quarles and Lloyd W. Gathings of Emond & Vines, Birmingham, for appellant.
    W. Gerald Stone and James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellees.
   MADDOX, Justice.

The plaintiff, Doris Sewell, brought a wrongful death suit against J. R. Harris and William Clyde Horton, co-employees of her deceased husband, in which she claimed that they had negligently failed to provide her deceased husband with a reasonably safe place to work and with reasonably safe equipment.

The deceased was employed by Pullman, Inc., and on August 13, 1973, he suffered a job-related injury from which he died on September 5, 1973.

The trial judge, treating the defendant’s motion to dismiss as a motion for summary judgment, decreed:

“Upon consideration thereof, the Court finds that defendants J. R. Harris and William Clyde Horton were either officers, agents, servants or employees of the same employer as plaintiff’s deceased husband, Edgar H. Sewell, and as such, said defendants are immune from plaintiff’s action by the provisions of Section 312, Title 26, Code of Alabama of 1940, as amended by Act No. 1062, which appears in the official Acts of the Legislature of Alabama of 1973.”

Doris Sewell’s motion to reconsider was overruled, and she appeals to this Court.

The issue raised by the parties is a narrow one: Does a party injured prior to the 1973 amendment to Title 26, § 312, have the right to maintain a cause of action against a co-employee as a third-party tort-feasor?

Prior to 1970, § 312 provided that: “Where the injury ... for which compensation is payable . . . was caused under circumstances also creating a legal liability for damages on the part of any person other than the employer the employee . . . may proceed against the employer to recover compensation . . . and at the same time may bring an action against such other party to recover damages for such injury or death . . . .” [Emphasis added.]

In 1970, this Court, deciding a question of first impression, held that the language of § 312 permitted co-employees to be sued as third-party tort-feasors. United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). The legislature, in 1973, amended § 312 by adding to the pre-existing language the following:

“[Provided, however, neither an officer, director, agent, servant or employee of the same employer nor his personal representative, shall be considered a party other than the employer against whom such an action may be brought.” [Act No. 1062, Acts of Alabama 1973, Vol. Ill, pp. 1771, 1772.]

Unquestionably, the effect of the 1973 amendment to § 312 is to prohibit third-party suits against co-employees. The co-employees argue that the trial court was correct in dismissing the lawsuit because the 1973 amendment is retrospective and that this Court should follow the reasoning of Judge Varner of the United States District Court in Barr v. Preskitt, 389 F.Supp. 496 (1975), and find that the 1973 amendment to § 312 is retrospective in application. In Barr, Judge Varner said that § 312 was remedial, and that the legislature, because it made no attempt to revise pre-existing statutory terminology, intended the proviso from its inception to be construed as a bar to suits against co-employees as joint tort-feasors. We disagree. Mr. Justice Merrill, writing for this Court, in McCormick, reviewed the legislative history of § 312, and said:

“. . . We note here that references to Alabama as being among the states which exclude co-employees from the category of ‘third-persons’ . are not apt since Tit. 26, § 311 was repealed and § 312 was amended in 1947.”

In view of the above, we hold that there is no apparent legislative intent in the 1973 amendment to § 312 that it should be applied retrospectively. See Alabama Power Co. v. Director of Industrial Relations, 36 Ala.App. 218, 54 So.2d 786, cert. denied, 256 Ala. 382, 54 So.2d 789 (1951).

REVERSED AND REMANDED.

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