author: BLOODWORTH, Justice.

text:
    Hazel V. Watkins CULP, etc. v. Elizabeth H. GODWIN et al. Elizabeth H. GODWIN et al. v. Hazel V. Watkins CULP, etc.
    SC 1450, SC 1450-X.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    Rehearing Denied April 2, 1976.

      Alfred W. Goldthwaite, Montgomery, for appellant.
    Jesse M. Williams, III, Montgomery, for appellees.
   BLOODWORTH, Justice.

Mrs. Culp' [hereinafter referred to as appellant], executrix of the estate of her late husband, Jimmie Ray Watkins, appeals from the circuit court’s denial of her motion to dismiss a claim against the estate filed by Elizabeth H. Godwin, et al. [hereinafter referred to as appellees]. Appel-lees cross-appeal, assigning as error the circuit court’s denial of their several motions to dismiss the appeal from the probate court to the circuit court.

These appeals arose as follows.

On October 26, 1966, Floy H. Watkins died intestate in Montgomery County, Alabama, leaving as survivors her husband, Jimmie Ray Watkins, and her next-of-kin, the appellees. There was no administration on her estate. She left certain real and personal property at her death.

On April 14, 1972, Jimmie Ray Watkins, the widower, was remarried to appellant.

On July 9, 1972, Watkins died, leaving a last will and testament by which all his property was bequeathed to his wife, the appellant, who was named the executrix. The will was admitted to probate in the probate court, and letters testamentary were issued to appellant on September 21, 1972.

On March 8, 1973, appellees filed a claim against Jimmie Ray Watkins’ estate in the probate court, claiming a share, as heirs, of the estate of Floy H. Watkins, and claiming she died owning a separate estate. A contest of the claim, filed by appellant, was heard in the probate court and that court allowed the claim in the amount of $10,920.97 on July 16,1974.

On August 14, 1974, appellant filed a petition in the probate court requesting “removal” of the administration to the circuit court and “appealing” the probate judge’s order of July 16, 1974, which allowed ap-pellees’ claim.

On that same day, August 14, 1974, Circuit Judge Richard P. Emmet entered an order transferring the cause to the circuit court. (No mention of the appeal was made in the order.)

On September 27, 1974, appellees filed motion to dismiss the appeal because appellant failed to give security for costs. Whereupon, on October 4, 1974, appellant filed motion to dismiss appellees’ motion to dismiss the appeal. On November 15, 1974, Judge Emmet granted appellant’s motion and denied appellees’ motion.

On January 23, 1975, appellees renewed their motion to dismiss the appeal. And, on January 31, 1975, appellant renewed her motion to dismiss the appellees’ motion to dismiss the appeal. Again, Judge Emmet granted appellant’s motion and denied ap-pellees’ motion, all on February 11, 1975.

Appellant then, on August 14, 1975, moved to dismiss appellees’ claim on the ground that it is barred by the statute of limitations of six years, the said Floy H. Watkins (through whom appellees claim) having died October 26, 1966, more than six years previously, and the claim not having been filed until March 8, 1973. [We will treat the motion as having been filed under Rule 12(b) A.R.C.P.]

On August 25, 1975, Judge Emmet denied appellant’s motion to dismiss the claim, from which order appellant has appealed. Appellees cross-appeal and claim error in the trial judge’s denial of their two motions to dismiss the appeal from the probate court to the circuit court.

It is appellant’s contention for reversal that the circuit court should have granted her motion to dismiss appellees’ claim because the claim was barred by the six-year statute of limitations (Tit. 7, § 21, Subdivision 3, Code of 1940 [Recompiled 1958]). Although there was no administration of the Floy Watkins estate, appellant argues that appellees could have sought to be appointed administrator or could have sued for their alleged share of her property within the six-year period.

The appellees, on the other hand, contend, first, that Tit. 7, § 21 refers to actions for the detention or conversion of specific items of personal property but does not lie for recovery of money unless to recover specific coins, and therefore the circuit court’s order appealed from was correct. Second, appellees suggest that the court’s order denying appellant’s motion to dismiss the claim will not support an appeal. Finally, appellees urge that the circuit court’s order denying appellant’s motion to dismiss the claim was correct because appellant failed to file security for costs in order to perfect an appeal from the probate court’s allowance of the claim.

We think the appellees’ latter contention is meritorious and disposes of this appeal. We need not consider the appellees’ other contentions.

There is no question but that appellant had the right to remove the administration of the estate of her late husband from probate to circuit court. Tit. 13, § 139 gives her that right as a matter of law, and without any condition annexed thereto as to payment of costs. Ex parte Bell, 221 Ala. 304, 128 So. 594 (1930). The order of removal was therefore proper.

On the other hand, when a judgment on a claim against an estate has been rendered, either party may appeal to the circuit court within 30 days and secure a trial de novo in the circuit court. Tit. 61, § 216, Code of 1940, as amended by Act No. 324, Acts of Legislature 1943, Regular Session, at page 308. [See Tit. 61, § 216, Recompiled Code 1958.]

Is the appealing party required to give security for costs on appeal to the circuit court from the allowance of a claim against the estate? We think, under the holdings of our cases, the answer is in the affirmative.

This very issue was addressed by this Court in Wilkerson v. Hagan, 265 Ala. 515, 92 So.2d 901 (1957) (per Coleman, J.).

“Does § 216 of Title 61, Code 1940, as amended in 1943, require a party to give security for costs as provided by § 782 of Title 7, Code 1940, when that party appeals to the circuit court from the judgment of the probate court, in a proceeding initiated in and determined by the probate court under said § 216, to determine the validity of a claim filed against an estate being administered in the probate court?”
In Wilkerson, this Court held:
“We answer that question in the affirmative. In such appeal, security for costs is required.”
üfi. >}c
“§ 216, Title 61, Code 1940, recites in part:
“ ‘ * * * If the judgment on any such claim is rendered by a probate court, either party may within thirty days after the rendition of such judgment appeal to the circuit court of the county in which the administration of said estate is pending, * * *.’ (Emphasis supplied.)
“In Clary v. Cassets, 258 Ala. 183, 61 So.2d 692, 697 this court said:
“ ‘It is provided, also, in Code 1940, Tit. 7, § 782, which is applicable here, that:’ (Emphasis supplied.)
“ ‘ “In all other cases in which an appeal is taken under the provisions of this article, the appellant, or some one for him, must give security for the costs of such appeal, * * * ” (Emphasis supplied.)’
“In that case, this court held that the security for costs was defective, and that giving security for costs as prescribed by § 782, Title 7, Code 1940, went to the jurisdiction of the circuit court.
“[4] Appellant argues that the appeal from probate court to circuit court in this case is ‘governed’ by § 216 of Title 61, Code 1940, and not by § 782 of Title 7, Code 1940.
“That is correct as to the particular elements of such appeal mentioned in and limited by § 216 of Title 61, Code 1940, some elements being: Time for taking such appeal, trial de novo, trial by jury, and court to which appeal may be taken.
“As to particulars not specified, this court held in Clary v. Cassels, supra, that the appeal is governed by the general statutes. § 782 of Title 7, Code 1940, is one such general statute. If we cannot look to the general statutes, then the courts would be without rules for guidance or control as to particulars of appellate procedure which are not specifically set out in § 216.”
% j(C sfc >}C ‡ *
“Our conclusion is that the language and history of the 1943 act do not disclose a legislative intent to provide for appeals from probate court to circuit court without security for costs, in proceedings under that statute.”

We are thus bound to follow our decisions in Wilkerson and Clary, supra, so that when the executrix appeals to circuit court from the judgment of the probate court allowing a claim filed against the estate in the probate court, the executrix is required to give security for costs. Filing security for costs goes to the jurisdiction of the court and upon failure to so file within 30 days of the order, the appeal is subject to being dismissed. Appel-lees’ motions to dismiss should have been granted.

One of our recent decisions disposes of the final contention of appellant that once the cause is removed to the circuit court that court has full authority to re-adjudicate all matters involved in the estate, including those orders heretofore rendered by the probate court.

In White v. Hilbish, 282 Ala. 498, 213 So.2d 230 (1968), per Harwood, J., this Court held:

“Where jurisdiction has attached, a decree of the Probate Court, within its sphere of jurisdiction, is as conclusive as that of any other court of general jurisdiction, and is aided by the same intendments of law. Evans v. Evans, 200 Ala. 329, 76 So. 95; Carpenter v. Carpenter, 200 Ala. 96, 75 So. 472. We do not think that Section 139, Title 13, Code of Alabama 1940, providing for the removal of the administration of estates to the Equity Court contemplated that orders and decrees already finally adjudicated by the Probate Court on matters within its jurisdiction could thereby, by the process of such removal, be deemed to be vitiated and voided.”

There being no effective subsisting appeal in the circuit court from the order of the probate court allowing the claim, that order stands, and any order hereinafter made by the circuit court disallowing the claim would be coram non judice and void. White v. Hilbish, supra.

AFFIRMED ON APPEAL.

REVERSED AND REMANDED, ON CROSS-APPEAL.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Robert G. DONALD v. CITY NATIONAL BANK OF DOTHAN, Alabama, a National Banking Association.
    SC 1623.
    Supreme Court of Alabama.
    Feb. 27, 1976.

      J. Ronald Storey, Dothan, for appellant.
    Alto V. Lee, III, and Alan C. Livingston, Dothan, for appellee.
   SHORES, Justice.

The plaintiff filed suit against City National Bank of Dothan claiming damages for alleged breach of warranty on the sale of a boat. The bank denied the allegations of the complaint and filed a motion for summary judgment supported by testimony of Robert G. Donald, the plaintiff, Jesse S. Doyle and James H. Eason, officers of the bank. The plaintiff filed a brief in opposition to the motion but filed no affidavits or other testimony in opposition thereto. The court granted summary judgment and the plaintiff appealed. The only question presented is whether any genuine issue of material fact exists according to the depositions.

An officer of the bank told the plaintiff that the bank had repossessed a boat and was interested in selling it. The plaintiff says in deposition:

“. . . I told him that I was possibly interested in one, because I was thinking about buying a boat to put into charter service out out of Destín, Florida.”

The boat was located at Tibbetts Marina at Panama City. The plaintiff went to Panama City to “look at the boat” and says Tibbetts was in the process of making repairs on it. Prior to purchasing the boat the plaintiff hired Willings Detroit Diesel of Birmingham to inspect it. He said Willings was unable to make a “running test” because the engines would not start, but reported to him that it needed repiping, new tubes and lines, but otherwise “everything appeared okay.” In addition, and again prior to the purchase of the boat, the plaintiff hired Tibbetts Boat Works to do a vessel survey and install new batteries. This report described the specifications of the boat and stated that the topsides, decking bilges and water tanks were in “good” condition.

The plaintiff contended that Tibbetts advised him that the generator was being repaired but would be shipped later.

The bank claims that no evidence was offered establishing any warranties; and, in addition, that summary judgment was proper since the plaintiff failed to file any affidavits or other testimony in opposition to its motion.

The plaintiff contends that there were issues of material fact requiring the court to overrule the bank’s motion. He summarizes these issues as follows:

1. Whether the bank is a merchant with regard to the goods sold, giving rise to an implied warranty of merchantability under Title 7 A, § 2-314, Code;

2. whether the bank had reason to know of any particular purpose to which the boat would be put, thereby creating an implied warranty for a particular purpose under Title 7A, § 2-315; and

3. whether the bank breached its express agreement to include a generator with the boat.

Summary judgment in this state is never proper if there is any evidence in support of the party opposing the motion. Further, Rule 56, ARCP, must be read in context with our scintilla rule. “. Thus, if there is a scintilla of evidence supporting the position of the party against whom the motion is made, so that at a trial he would be entitled to go to the jury, summary judgment cannot be granted.” Rule 56, ARCP, Comments; Langan Construction Co. v. Dauphin Island Marina, Inc., 294 Ala. 325, 316 So.2d 681 (1975). Moreover, the movant has the burden of showing the absence of any genuine issue of material fact and all reasonable doubts touching the existence of a genuine issue of material fact must be resolved against the movant party. Bennett v. United Auto Parts, Inc., 294 Ala. 300, 315 So.2d 579 (1975).

Nevertheless, summary judgment does serve a useful purpose. The procedure is designed to pierce the pleadings and determine if causes or defenses lack real merit. It is said “. . . the rule is intended to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials when no genuine issues of fact have been raised.” 10 C. Wright & R. Miller, Federal Practice and Procedure: Civil § 2712 (1973).

Rule 56(e), ARCP, provides in part:

“. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The plaintiff did not file any affidavits or other testimony in opposition to the motion. However, as noted in the last sentence of Rule 56(e), supra, summary judgment can still only be entered against him if “appropriate.” That is, the movant party must initially show the absence of a genuine issue of material fact. Dawkins v. Green, 412 F.2d 644 (5th Cir. 1969).

But, since the purpose of a motion for summary judgment is to test the evidence to determine if any real issue exists, the failure of the party opposing the motion to offer any affidavits or other testimony to contradict the evidence presented by the movant party leaves the court no alternative but to consider that evidence uncon-traverted. Epps v. Remmel, 237 Ark. 391, 373 S.W.2d 141 (1963).

Part of the evidence offered by the bank in this case was the deposition of the plaintiff. If there is testimony in his deposition which would contradict the facts as set out in the other testimony, then the failure of the plaintiff to offer counteraffidavits or testimony would be of no consequence since repetition of the same facts in a counteraffidavit would be a useless act. Powell v. United States Steel Corp., 305 F.Supp. 645 (S.D.W.Va.1969).

We turn now to the evidence.

Two officers of the bank testified that the bank made absolutely no representations whatever concerning the boat; that the plaintiff was told that all the bank wanted was to get rid of the boat and was not willing to finance the purchase; and that it wanted . . to sell the boat as it sits at Mr. Tibbetts[’] dock.

The depositions of the bank’s officers state unequivocally that no officer or employee of the bank ever made any representation of any kind about the boat, other than there were no liens or encumbrances against it. The plaintiff offered no evidence of any express warranty or representation other than as to the inclusion of a generator with the boat. He does contend on appeal that an implied warranty of merchantability was made under the provisions of Title 7A, § 2-314, which provides, in part:

. . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . .”

§ 2-314(c) provides that goods to be merchantable must be at least such as “are fit for the ordinary purposes for which such goods are used; . . .”

A merchant is defined by Title 7A, § 2-104(1), as:

“. . . a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction

A merchant is defined in Anderson, Uniform Commercial Code, Vol. 1, § 2-104:4 (2d ed. 1970), as follows:

“(a) Dealer. He may be a person who deals in goods of the kind involved. Whether he deals in other goods is immaterial. He must deal in goods of the kind involved in the transaction in order to come within the first category.
“(b) Representation. He may be a person who by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction. Whether he actually has such knowledge or skill is immaterial if he so holds himself out.”

Obviously, a bank may be a merchant under the U.C.C. definitions (see Official Comments to § 2-104); but absolutely no evidence was offered in this case to bring the bank within either of the definitions. No evidence was offered that the City National Bank of Dothan deals in the kind of goods involved in this transaction— boats — or that it holds itself out as having knowledge or skill peculiar to such goods.

The record before the trial court and here indicates that the sale of the boat was no more than an isolated transaction by the bank.

Prince v. LeVan, Alaska 1971, 486 P.2d 959 (9 U.C.C. Reporting Service 367), also involved a sale of a boat. In treating the same issue the court said:

“In the present case we deal with a single isolated transaction. Defendants were not shown to deal in vessels or to possess peculiar knowledge or skill in relation to vessels. Defendants were therefore not merchants [under U.C.C., § 2-104(1)] and a warranty of merchantability may not be implied [under U.C.C., § 2-314].” At 964 (9 U.C.C. Reporting Service at 375)

The plaintiff next argues that an implied warranty of fitness was made within Title 7 A, § 2-315, which provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

This provision of the U.C.C. deals with an implied warranty of fitness for a particular purpose as opposed to ordinary purpose under the warranty of merchantability. This warranty is implied if:

1. The seller has reason to know the buyer’s particular purpose; and

2. the seller has reason to know that the buyer is relying on the seller’s skill or judgment to furnish appropriate goods; md

3. the buyer, in fact, relied upon the seller’s skill or judgment. J. White & R. Summers, Handbook of the Law under the Uniform Commercial Code, § 9-9 (1972).

Although the plaintiffs deposition indicates that he told the bank officer that he “was thinking about buying a boat to put into charter service out of Destín, Florida,” the record is devoid of any evidence that the plaintiff in anywise relied upon the bank’s skill or judgment (or indeed that it possessed such skill or judgment) that the boat was fit for a particular purpose, here, charter service. To the contrary, the only evidence adduced on the implied warranty of fitness for a particular purpose indicates that plaintiff did not rely on the bank’s skill or judgment. He offered no evidence to show that the bank possessed any skill or knowledge upon which he could have relied. In fact, the deposition of the plaintiff reveals the contrary. He, himself, had independent inspections and surveys made of the boat at his own expense and relied upon these reports in making the purchase rather than upon any skill or knowledge of the seller. Sylvia Coal Co. v. Mercury Coal & Coke Co., 151 W.Va. 818, 156 S.E.2d 1 (1967) ; Vacuum Concrete Corp. v. Berianti Construction Co., 206 Pa.Super. 548, 214 A.2d 729 (1965).

No evidence was presented to establish an implied warranty of fitness for a particular purpose under Title 7A, § 2-315.

This case is here on the plaintiff’s appeal from a summary judgment granted in favor of the bank.

The only question remaining concerns the generator, which the plaintiff says was not on the boat and which he says he has yet to receive. In his deposition, the plaintiff says “ . . . when I first asked the bank about the boat, they said, yes, it had a generator on it.” We think this testimony establishes a scintilla of controversy as to whether the defendant made a warranty with respect to the generator. Since, on this issue, a genuine issue of material fact was established, summary judgment was improper as to this issue.

The bank, therefore, was entitled to partial summary judgment; but, as such motion related to the generator, it should have been denied. ARCP 56(b). A partial summary judgment is appropriate when separate claims are involved and there is no genuine issue of fact as to less than all of such claims. Raible v. Newsweek, Inc., 341 F.Supp. 804 (W.D.Pa.1972); Triangle Ink & Color Co., Inc. v. Sherwin-Williams Co., 64 F.R.D. 536 (N.D.Ill.1974). “ . . . A separate claim has been defined as that which is entirely distinct from other claims involved in an action which arises from a different occurrence or transaction which form the basis of separate units of judicial action. [Citations omitted].” (64 F.R.D. at 538)

Since there is a scintilla of evidence in support of the claim involving the generator and since that claim is separate from the claims involving the alleged warranty of merchantability, and warranty of fitness for a particular purpose, partial summary judgment under ARCP 56(b) was appropriate; but the plaintiff is entitled to a trial insofar as his claim that the bank told him the boat included a generator.

Affirmed in part, reversed in part and remanded.

MERRILL, MADDOX, JONES and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Morris Wayne McCLENDON v. Judy Ann McCLENDON.
    Civ. 656.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1976.
    Rehearing Denied March 3, 1976.

      Burns, Shumaker & Davis, Gadsden, for appellant.
    James F. Hinton, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

Appellant, the father, appeals from a decree increasing child support and ordering him to pay past-due support payments. We affirm.

The parties were divorced in 1967. The court awarded custody of their two children to the mother and ordered the father to pay $32.50 bi-weekly for their support. The father fell behind in these payments, causing contempt proceedings by the mother. As a result of that action the parties agreed that support payments would be increased to $35.00 per week and the father would pay certain debts of the mother. In exchange for these payments the mother agreed that the father would not be held in contempt for the past-due payments. This agreement was incorporated into a decree of the court, dated December 13, 1974.

On June 17, 1975, the mother filed a petition, seeking to collect all past-due payments and modification increasing future support payments. In its decree the court .'ordered the father to pay $3,998.64 as payments in arrears and increased child support payments to $100.00 per week. The arrearage award credited the father with the amount paid under the 1974 decree.

The record discloses that the mother is employed by a motel at a rate of $2.10 per hour. She and the two' children have been 'living with her parents, but will have to move in the near future.

The father is a salesman and manager of a group of salesmen with a firm engaged in selling cookware. He earns a commission on his sales and a percentage on the sales of others. In 1974, his gross income from this activity was over $45,000.00. After large deductions for automobile expenses, entertainment, cost of depreciation and maintenance on an airplane, and other business expenses, his adjusted gross income was $17,810.38.

The father first asserts as error the trial court’s finding that he was in arrears in child support payments, contending that the agreement between the parties and the decree of 1974 settled ¿11 claims as to such arrears. Basically, he argues that there was an accord and satisfaction.

Following is paragraph 2 of the agreement preceding the December 13, 1974 decree:

“2. The Defendant acknowledges that he is in contempt of Court for failure to pay support and agrees that in order to prevent punishment for said contempt, agrees to make 9 loan payments of $68.-92 each, due from the Plaintiff to the East Gadsden Bank, first payment to be due and payable in November, 1974, and ending in July, 1975, totaling $620.28. In the event the Defendant makes said payments and pays said support when due, then he shall not be punished for said contempt.”

In its decree effectuating the agreement the court similarly provided that the father could purge himself of contempt by repaying the bank loan.

Nowhere, either in the agreement or the decree, is there anything to indicate that the sum of $620.28 was accepted as full settlement of claims for past due support totaling over $4,000.00. The agreement and decree merely allow the father to avoid a contempt citation by making the payments. They do not purport to settle his obligation on the balance of the arrear-age. The court heard the evidence as to the agreement of the parties. There is evidence to support its finding that there had been no accord and satisfaction. This court is bound to affirm on appeal a decree of a trial court after hearing ore ten-us if such decree is supported by legal evidence and is not palpably wrong and unjust. Hendrix v. Hendrix, 56 Ala.App. 178, 320 So.2d 684.

We do not comment on the power of a court to approve such a settlement of past-due child support obligations. This case does not require a ruling on this issue.

The father contends that the mother has “failed to meet her burden of proving such changed financial conditions as to warrant such a tremendous increase in child support.” However, as this court recently said in Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660:

“The conditions and circumstances of the parties, though pertinent, are not the controlling criteria in determining the changed needs of the children. It is the material change in the needs, conditions and circumstances of the children that is the most pertinent factor in considering modification of a decree of support. That factor coupled with the father’s financial ability to meet such needs determines the basis for modification. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797.”

The record indicates that the father earns a sufficient income after expenses, and operating cost and depreciation of an airplane, to make payments of $100.00 per week for support of his children. The trial court could take judicial knowledge that the advancing ages of the children and effects of inflation have increased the cost of feeding, clothing and furnishing the needs of growing children, so that $35.00 per week was inadequate. Womble v. Womble, supra. These factors, together with the estimates introduced by the mother regarding the cost of raising the children, provided ample evidence of changed circumstances for the court to modify support payments.

Appellee’s motion for attorney’s fees on appeal is granted in the sum of $250.00.

There being no error, the decree of the court below is due to be affirmed.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    In re Morris Wayne McCLENDON v. Judy Ann McCLENDON. Ex parte Morris Wayne McCLENDON.
    SC 1752.
    Supreme Court of Alabama.
    April 2, 1976 .
    Thomas E. Davis, Gadsden, for petitioner.
    No appearance for respondent.
   EMBRY, Justice.

Petition of Morris Wayne McClendon for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in McClendon v. McClendon, 57 Ala.App. —, 329 So.2d 96.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    F. R. INGRAM v. George ERWIN, Individually, et al.,
    Civ. 588.
    Court of Civil Appeals of Alabama.
    Jan. 28, 1976.
    Rehearing Denied Feb. 25, 1976.

      Erskine R. Lindsey, Birmingham, for appellant ; F. R. Ingram, pro se.
    Thomas Reuben Bell, Jerry L. Fielding, Sylacauga, for appellees.
   HOLMES, Judge.

The Circuit Court of Shelby County sitting without a jury assessed damages of $7,000 against F. R. Ingram, representing money owed by him to George Erwin. Ingram prosecutes this appeal from that judgment.

The dispositive issues presented for this court’s consideration are whether Tit. 7, § 1054, Code of Ala. 1940, entitled appellant Ingram to notice prior to a hearing on an injunction; whether at that hearing Ingram should have been awarded possession of the construction machinery involved in this lawsuit; and whether under the law and the evidence appellee Erwin was entitled to the warehouseman’s lien and the $7,000 in damages which were awarded to him.

The tendencies of the evidence as revealed by the record are as follows:

Erwin is primarily a mechanic operating an equipment repair establishment. In 1969, Ingram turned over various pieces of construction equipment to Erwin for repair. During the latter part of that same year, Ingram purchased a tractor and lowboy trailer and assigned them to Erwin, who was to do repair work on them also. While it is certain that Erwin was to repair both the construction equipment and the tractor-trailer unit, the evidence was in sharp conflict as to what other business arrangements existed between the parties concerning the equipment and the unit.

In January of 1971, Ingram repossessed the tractor and low-boy, which he later sold. At that time, pursuant to an agreement between the two individuals, Ingram apparently owed Erwin approximately $2,800 for repairs performed on the tractor and low-boy.

Ingram subsequently attempted to remove the construction equipment from Erwin’s premises, where they had remained since placed there in 1969. Erwin refused to allow their removal, and Ingram instituted an action in detinue for their recovery, together with a claim of money damages for his loss of their use and for their conversion.

A hearing was held on the detinue action pursuant to Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983. At that hearing, Ingram was formally served with an equity bill in which Erwin claimed a warehouseman’s lien for storage charges on the aforementioned construction equipment. Erwin’s equity bill further prayed that Ingram be enjoined from prosecuting his detinue action until the merits of Erwin’s claim could be determined. The trial judge then and there took testimony and considered the equity complaint. Ingram was then enjoined from further prosecution of his detinue action as prayed for by Erwin, and the two lawsuits were later consolidated for trial.

Ingram’s detinue claim was denied. The trial judge, as noted above, upon conclusion of the consolidated trial, awarded $7,000 in damages and a warehouseman’s lien to Erwin, from which judgment Ingram appeals.

Ingram initially assigns error in that he did not receive three days’ notice of the hearing on the temporary injunction pursuant to Tit. 7, § 1054, Code of Ala. 1940. That code section, which was in effect at the time of this trial, provides as follows:

“When a bill praying for an injunction is presented for fiat to any judge authorized to grant injunctions, he may, if in his opinion no substantial injury would result to the complainant from delay, set a time and place for the hearing of the application, not more than ten days thereafter, and may require the complainant to give the defendant or defendants to be affected by the writ at least three days’ notice of such time and place and to serve them with a copy of the bill, if to be found within the state, and if the defendant or defendants cannot with due diligence be served with such notice and copy within the time prescribed, the judge may, in his discretion, on the day fixed, proceed to hear the application without notice or to continue the hearing to a future day, so that notice may be given the defendant.”

We initially note that this statutory provision has been superseded by the new Rules of Civil Procedure, and is no longer of force and effect.

The language of § 1054 concerning notice is obviously not cast in mandatory terms. This construction is buttressed by the cases of Lukes v. Alabama Power Co., 257 Ala. 590, 60 So.2d 349; and Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269, which hold that notice and a hearing are not required by § 1054 but are within the sound discretion of the trial court.

Additionally, we observe that the hearing on the injunction was held contemporaneously with a preliminary detinue hearing on the same subject matter as that covered by the proposed injunction. Ingram, the party to be enjoined, was present at that detinue hearing, which was called at his instance. Under circumstances such as these, we find that three days’ notice would not be required.

Ingram also urges error in that he was not awarded possession of the construction equipment at the above mentioned hearing. This contention is bottomed on the premise that Ingram’s detinue action with appropriate bond required the trial court to award immediate possession to him. However, the trial judge after hearing testimony decided that the status quo should be maintained pending determination of Erwin’s claim. Inasmuch as the grant of a temporary injunction rests within the discretion of the trial judge, we find no error in this regard. 12 Ala.Dig. Injunctions and cases cited thereunder. By the above, this court should not be understood as holding that the trial court was required to enjoin the detinue action; only that in this instance, under these facts, the trial judge did not err in refusing to award possession of the property to Ingram under his detinue action. Nor, in this instance, did the trial court err in granting the injunction.

It is finally urged that error to reversal was committed by the trial court in its final judgment awarding Erwin a warehouseman’s lien and $7,000 in damages.

In this regard, we initially note that the Alabama Supreme Court has held a warehouseman obtains a lien on stored property for storage charges thereon. Southern Railway Co. v. Lockwood Manufacturing Co., 142 Ala. 322, 37 So. 667. A garage keeper is a warehouseman as to vehicles kept in dead storage. 61A C.J.S. Motor Vehicles at p. 642. Furthermore, 78 Am. Jur.2d Warehouses § 2, defines a warehouseman as one who is in the business of storing other’s goods, and the evidence indicates that Erwin would store the property of others in the course of his business. As such, the trial court was not in error in awarding Erwin a lien for his storage charges.

Proceeding to the award of $7,000 damages, there was testimony from which the trial court could have found that the only arrangement between Ingram and Erwin regarding the construction equipment was for Erwin to repair it, and that it was left on Erwin’s premises until Ingram attempted to remove it in 1971. The trial court could also have found that storage fees were customarily charged by Erwin, that fees of $5 per day on the various items were reasonable, and as such that the storage charges of $3,500 which were actually determined by the trial court to be due were supported by the evidence.

There was also testimony to the effect that Erwin expended approximately 250 man-hours of work on the tractor and low-boy trailer, at rates of $5 an hour for mechanic’s labor and $8.50 hourly for welding. Further testimony was that the parties agreed Ingram would reimburse Erwin for his labor expenses, under an arrangement whereby the two would rent out the unit as partners. Therefore, there was ample evidence from which the trial court could, as it did, have found that Ingram was indebted to Erwin since 1971 in the amount of $2,800 for repairs done to the tractor-trailer unit, excluding interest. International Union, United Auto, Aircraft & Agr. Implement Workers of America (UAW-CIO) v. Palmer, 267 Ala. 683, 104 So.2d 691, stands for the proposition that the matter of damages must be left to the discretion of the trier of facts, whose judgment will not be interfered with unless the amount is so excessive as to show passion or prejudice or other improper motive. We find no such passion or prejudice or improper motive and therefore conclude that the judgment of $7,000 which includes interest is not excessive so as to require reversal. See also 7A Ala.Dig. Damages <®=»H9.

The transcript in this case is voluminous, being over 800 pages in length. The appellant’s brief exceeds 130 pages. This clearly indicates the conflict in the evidence and the hotly contested nature of the proceedings. As such, where the evidence is conflicting and the testimony is taken ore tenus by the trial judge, his findings become like the verdict of a jury and will be reversed on appeal only for manifest and palpable error. San-Ann Service Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374. From the facts as previously set out, there is sufficient evidence to sustain the judgment of the court below.

All assignments of error properly presented and argued having been considered, the case is due to be and accordingly is affirmed.

Affirmed.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    In re F. R. INGRAM v. George ERWIN, Individually, et al. Ex parte F. R. Ingram.
    SC 1746.
    Supreme Court of Alabama.
    April 2, 1976.
    Erskine R. Lindsey, Birmingham, for petitioner.
    No appearance for respondent.
   EMBRY, Justice.

Petition of F. R. Ingram for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Ingram v. Erwin et al., 57 Ala. App.-, 329 So.2d 99.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    James W. REDMOND and Juanita Redmond, husband and wife v. Odell ROBINSON.
    Civ. 689.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.
    Rehearing Denied Feb. 11, 1976.
    William D. Melton, Evergreen, for appellants.
    Owen & Ball, Bay Minette, for appellee.
   BRADLEY, Judge.

Plaintiffs here are the buyers of a house in Baldwin County. The trial court sitting without a jury awarded them $214.21 as the amount they overpaid the seller. Plaintiffs appeal the award as inadequate.

The evidence shows that the buyers entered into a written contract to purchase the house from defendant for $18,000. The terms of the written agreement provided that the buyers would be charged rent at the rate of $100 per month from the date of possession to the day of closing the sale. The contract also provided that the “$18,000 + accumulated rent + any other expenses incurred in this sale . . would be payable in one lump sum at the closing. The contract made no mention of interest payments.

The buyers went into possession of the premises two or three days after signing the contract (sometime in November 1973) and lived there until the closing of the sale on January 31, 1975, about fourteen months later. On closing, they paid the vendor $21,316.05. According to the buyers, this sum included $2,027.80 of interest wrongfully charged by the seller. Buyers filed a complaint with counts alleging breach of contract, money had and received, and payment of money by mistake.

It is apparent from the arguments in their brief that buyers misapprehend the basis on which the seller charged the additional amount. Buyer apparently thought that defendant was trying to wrongfully assess interest on the $18,000 price stated in the sale contract. To the contrary, however, the record shows that the seller claimed the disputed money as reimbursement for interest he had already paid on a construction loan taken out to obtain funds to build the house. Throughout this suit it has been seller’s contention that this amount is payable by the buyer since it constitutes an “expense incurred in the sale.” The record also indicates that the trial court correctly viewed the question before it as one involving the construction of that ambiguous contractual provision.

At trial, plaintiff, James W. Redmond, testified that defendant was owed $18,000 for the house and $1,400 for rent, making the total amount owed $19,400. He denied owing any interest.

Mr. Ronald Ingram, an employee of First National Bank of Bay Minette, testified that he overheard a telephone conversation between James W. Redmond and Odell Robinson, and after the conversation Redmond told him to pay the interest on the construction loan during the period of occupancy prior to closing.

Seller, Odell Robinson, testified that the sale price for the house and lot was $18,-000; that the buyers, would be placed in possession upon their signing the purchase agreement; and that they would be charged rent at the rate of $100 per month until the sale was closed. He also stated that the parties agreed that he would be paid the interest from the day of occupancy to the day of closing on the construction loan he had obtained to build the house. He further testified that this interest payment was rightfully considered to be “ . other expenses incurred in this sale.” Seller also testified that, on the day of closing, Mr. Redmond had agreed to pay the interest if several things were done to the house in addition to what had already been done.

At the end of the hearing the court stated to the assemblage that, in its opinion, the payment of interest by Mr. Redmond was part of the expenses of the sale, but that Mr. Redmond was entitled to recover from defendant $214.21, this being based on the $1,400 figure.

The buyers’ first argument for reversal is directed at the admission of certain testimony over his objections that the answers elicited were parol evidence.

The questions to which the objections were made sought to demonstrate a meaning or interpretation of that provision in the written agreement which authorized the payment of “ . . . any other expenses incurred in this sale.” The trial court has the duty to determine whether a contract is clear and uncertain or is ambiguous and, therefore, subject to being aided by evidence outside the written instrument. Port City Construction Co. v. Henderson, 48 Ala.App. 639, 266 So.2d 896. In overruling the objections, the trial court indicated that it was allowing the testimony because the above provision’s meaning was uncertain. We conclude that the trial court ruled correctly. The provision in question is ambiguous and subject to several possible meanings.

Buyers’ other argument is that the judgment is contrary to the law relating to the charging of interest. We feel that the cases they cite are inapposite to the situation before us. Where the word “expenses” appears in a contract without qualification, we see no theoretical obstacle to interpreting it to include the exact amount of interest obligations incurred by one party in obtaining funds necessary to complete the contract. “Interest, like taxes, is ordinarily an expense rather than an investment,” Alabama Power Co. v. Federal Power Commission, 134 F.2d 602 (5th Cir. 1943). Thus, it would appear that a provision providing for payment of a vendor’s “expenses” would properly encompass those legitimate debts which, as distinct from investments, the vendor incurs without contemplation of earning a profit or return thereon. On the other hand, where a so-called expense payment contains a premium charge over and above the amount the vendor was actually obligated to repay, there is nothing to support the additional charge except the vendor’s advancement of his money, or credit toward completing the contract, and the difference would not be an “expense”, but an additional return on the vendor’s investment, Harmon v. Lehman, Durr & Co., 85 Ala. 379, 5 So. 197. In the present case the evidence tended to show that the lender-defendant charged only the exact amount of interest he was himself obligated to pay. This, we feel, could be called an expense.

Moreover, we find no error in the trial court’s conclusion that this was an expense the buyers bound themselves to pay at closing.

The testimony of two of the three witnesses heard was to the effect that the interest on the construction loan from the day of occupancy to the day of closing was to be payable by plaintiffs as part of the expenses of the sale. We consider this evidence to be sufficient to support the court’s conclusion that the interest on the construction money for the period testified to by the witnesses was a part of the expenses of the sale and therefore authorized by the terms of the written agreement made the basis of this action. This construction of the contract made by the parties eliminates any question as to whether interest was or was not rightfully charged on any aspect of the transaction in question.

We find no error in the rulings of the trial court prejudicial to the substantial interests of plaintiffs, and its judgment is affirmed.

Affirmed.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    In re James W. REDMOND and Juanita Redmond, husband and wife v. Odell ROBINSON. Ex parte James W. Redmond and Juanita Redmond.
    SC 1705.
    Supreme Court of Alabama.
    April 2, 1976.
    William D. Melton, Evergreen, for petitioner.
    No appearance for respondent.
   EMBRY, Justice.

Petition of James W. Redmond and Juanita Redmond for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Redmond v. Robinson, 57 Ala.App. —, 329 So.2d 103.

WRIT DENIED.

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


text:
    OLD SOUTHERN LIFE INSURANCE COMPANY, a corporation v. David SPINATO, a minor, who sues by his father and next friend, Salvatore Spinato, et al.
    Civ. 686.
    Court of Civil Appeals of Alabama.
    March 17, 1976.
    Rosser & Munsey and Henry H. Self, Jr., Tuscumbia, for appellant.
    Bill Fite, Hamilton, for appellees.
   BRADLEY, Judge.

Plaintiff filed suit against defendant in the Superior Court of Marion County to recover on a policy of insurance. Defendant answered by alleging that it was not liable for plaintiff’s loss for the reason that the insurance policy contained a clause excluding coverage when the injuries suffered by insured resulted from his being an occupant of a motor vehicle being operated in violation of some law. The contention was that the vehicle was being driven at a speed in excess of the legal limit. On April 30, 1975 there was a trial before the court sitting without a jury, culminating in a judgment for plaintiff in the amount of $1,000. The judgment entry, dated May 4, 1975, recited that the award was based, “. . . on the pleadings and testimony taken orally before the Court.”

A motion to set aside the judgment was filed on May 9, 1975, and deemed overruled after the expiration of ninety days, as provided in Rule 59.1, ARCP. Notice of appeal from the judgment on the merits was filed August 21, 1975. The record on appeal does not contain a transcript of testimony.

In brief defendant argues (1) that the trial court erred in not granting a new trial because of the absence of a court reporter on April 30; and (2) that the evidence does not support the damages awarded to plaintiff.

It is apparent that any testimony taken April 30, 1975 went unrecorded. Rules 10(d), (e) and (f) of the Alabama Rules of Appellate Procedure (ARAP) currently provide relief from the quandary in which defendant now finds himself. However, due to the date on which the notice of appeal was filed, Rule 10, ARAP is not available for application in the present case, Rule 49, ARAP.

In a similar vein, Title 7, § 827(3), Alabama Code of 1940, can give no assistance to appellant, since there was no court reporter provided at trial, Ex parte Smith, 41 Ala.App. 62, 124 So.2d 677, cert. den., 271 Ala. 700, 124 So.2d 679.

Where, as here, a party’s situation is outside the scope of these rules which mitigate the potentially harsh result of unrecorded hearings, abridgement of the statutory right to a court reporter, if proved, must be considered highly irregular. A party is, upon request, entitled to have recorded all testimony taken in open court, Title 13, § 262, Code of Alabama 1940. An objection at the outset of a hearing to proceeding without a reporter constitutes the necessary request.

From the record in the present case, to which this appellate court must look, there is no indication that defendant did in fact object to the lack of a court reporter, or whether there was a ruling on such an objection. We can only speculate on the existence and purport of this and any other alleged prejudicial ruling not appearing in the record. Such speculation will not support review, King v. Smith, 288 Ala. 215, 259 So.2d 244.

Defendant did obtain an affidavit of the court reporter, allegedly supporting his account of the events at the trial. Defendant attempted to place this affidavit directly in the record, but it was stricken on motion of plaintiff. This ex parte affidavit was not submitted or identified with any pleading, motion, or paper which led to a ruling or order of the court. It was proper to strike it from the record, Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So.2d 90.

On May 9, 1975 defendant filed a motion which, though otherwise captioned, was a motion for judgment n. o. v. or, alt-ternatively, motion for new trial. There are no affidavits or other documents in support of this motion. Therefore, in light of the scant record in this case, we must presume that the unrecorded trial testimony would support the trial court, and we must affirm the denial of the motion, World Homes, Inc. v. Wilson, 54 Ala.App. 47, 304 So.2d 603.

Of course, defendant could have submitted the alleged affidavit of the court reporter in support of the May 9 motion. The affidavit would have thus become a part of the record of the proceedings on that motion. Any matter present in the affidavit could then be considered in reviewing the question of whether denial of a new trial amounted to abuse of discretion. However, defendant did not pursue this course. There is thus nothing in the record which permits us to reverse the trial court on the issue of non-recording of testimony, Melton v. Melton, 288 Ala. 452, 261 So.2d 887.

As to defendant’s second contention, we observe that in the absence of the transcript of testimony upon which the trial court based its findings and conclusions, there is no way for this court to ascertain whether or not the judgment is supported by the evidence. The only way we could make the determinations to have the evidence before us and we do not. Consequently, there is no way for this court to make such a decision.

The burden is always on the appellant to perfect his appeal in the manner required by law, and it is his duty to see that all the evidence before the trial court is in the record on appeal. Wilson v. Smith, 289 Ala. 374, 267 So.2d 446. The reason for this is that the appellate court is confined to the record before it in deciding the appeal. J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831. The record on appeal does not contain the transcript of evidence and, in view of the issues presented for decision, raises nothing that can be decided by this court.

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: CATES, Presiding Judge.

text:
    Jack Ray JONES v. STATE.
    8 Div. 775.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.

      James Francis, Decatur, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This is an appeal from a plea of guilty after indictment. The indictment had three counts, i. e., the Three Sisters — second degree burglary, grand larceny and buying, receiving, etc., stolen property. The defendant pled guilty to the latter two and not guilty to the burglary charge.

I

There was filed below both an Ireland form and in-court colloquy conducted by Hon. Newton B. Powell. The transcript reflects also a statement by the District Attorney that the State moved to nol pros the burglary count. The court accepted the nol pros; the record shows:

“You stand charged now in these indictments [see Jones (v. State), 8 Div. 776 (57 Ala.App. —, 329 So.2d 111)] with the burglary counts being stricken * * * >1

This is sufficient to support a minute entry under Code 1940, T. 15, § 257. However, this formality does not appear in the record before us.

Instead the judgment entry recites a “solemn plea of guilty to the offense of Burglary [without specifying the degree], Grand Larceny and Buying, etc.”

The adjudication recites “guilty as charged in the indictment.”

The record — both transcript of the colloquy and the Ireland form — violently negate any conviction of burglary in the second degree.

“We think when the State entered a nolle prosequi of the first count in the indictment, the effect was to destroy entirely that count * * *.” Walker v. State, 61 Ala. 30.

Ordinarily a judgment entry is said to import absolute verity. Courts of record speak only through their recorded minutes, at least as far as showing substantially all that was done at the trial, which the law requires to be done. Crist v. State, 21 Ala. 137; Naro v. State, 212 Ala. 5, 101 So. 666; and Evans v. State, 215 Ala. 61, 109 So. 357. Conversely, the silence of the minutes admits of but one conclusion, that if the clerk omits mandated matters from the record then they were not done. Walker v. Commonwealth, 144 Va. 648, 131 S.E. 230(6); State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61. (“What is not disclosed by the records of courts of record does not legally exist.”).

In McDonald v. Crawford, 28 Ala.App. 163, 180 So. 130, our erstwhile Court of Appeals said:

“It is a rule, and the only safe one, says Stone, Judge, that in judicial proceedings nothing is to be left to unrecorded memory. The record must speak by and for itself, without the aid of oral proof or human recollection. First Brickell’s Digest, 78, 79. The record must be so complete that a succeeding officer, coming into the place of the one before which the business was transacted, cannot reasonably mistake what was done. The rule as stated by the Supreme Court in Looney v. Bush, Minor 413, is: ‘So to describe the paper by its date, amount, parties, or other identifying features, as to leave no room for mistakes in the transcribing officer.’ The above has consistently been the rule in this state since that time.”

However, under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed.2d 274, pleas of guilty must be affirmatively established of record as knowingly, intelligently and voluntarily made in open court. Thus, Price, P. J., wrote:

“It is well settled that the recitals in the judgment import absolute verity, unless contradicted by other portions of the record. Ex parte Tanner, 219 Ala. 7, 121 So. 423; Burton v. State, 40 Ala.App. 146, 109 So.2d 311; Haun v. State, 44 Ala.App. 585, 217 So.2d 249.
“In Neal v. State, 257 Ala. 496, 59 So.2d 797, it was held that the recitals in the judgment would not have controlling effect over facts indicated by the record.
“In the instant case the judgment is contradicted in several instances by the court reporter’s certified transcript which is by statute made a part of the record. Title 7, §§ 827(1), 827(lb), Code of Alabama, 1940.” Honeycutt v. State, 47 Ala.App. 640, 259 So.2d 846.

In Twyman v. State, 293 Ala. 75, 300 So.2d 124, the majority opinion clearly recognizes the validity of the Honeycutt holding while finding that in Twyman’s record, “there [was] nothing to contradict the judgment.” Accordingly, we treat Honey-cutt, supra, as having been approved by the Supreme Court of Alabama. Hence, the judgment entry is wrong as to second degree burglary.

II

What should this court do? In Honeycutt, supra, the whole structure was fallibly premised. Here, however, only a severable part is flawed.

Our basic statutory command is found in Code 1940, T. 15, § 389. Among other things we are charged that we, after considering all questions apparent on the record, “must render such judgment as the law demands.” Italics added.

If this were a question residing in what evidence might come forth on a new trial then proper disposition is reversal and re-mandment, Hendricks v. State, 252 Ala. 305, 41 So.2d 423. Here, however, the only foundation for the judgment is a plea or, more properly, two pleas of guilty to grand larceny and receiving. There is no foundation for a judgment of conviction for second degree burglary.

Under § 389, supra, as applied in Robison v. State, 240 Ala. 638, 200 So. 629, the ends of justice require us to render a judgment of discharge on Count I of the indictment based on the nol pros in the face of the plea of not guilty thereto. The circuit clerk will correct the minute entry accordingly.

The judgment of conviction on Counts II and III is affirmed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

All the Judges concur.

      . See Borman, Right to Appeal Plea Bargain Convictions, 69 N.W.L.R. 663.


text:
    Jackie JONES v. STATE.
    8 Div. 776.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    James Francis, Decatur, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This conviction was based on a plea of guilt to grant larceny and receiving. The appellant pleaded not guilty to a charge of burglary of a railroad car from which the goods were stolen.

This case in controlling points is identical with that of Jones v. State, 57 Ala.App. -, 329 So.2d 108. On authority thereof a judgment of discharge on Count I (box car burglary) is here rendered. The judgment of conviction as to Counts II and III is affirmed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

All the Judges concur.


text:
    Jerry BUTTRAM v. STATE.
    7 Div. 358.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    David A. Rains, Fort Payne, for appellant.

      William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was charged in an indictment with murder in the first degree of James R. Williams. He pleaded not guilty and not guilty by reason of insanity. He was found guilty of murder in the second degree and sentenced to imprisonment in the penitentiary for twenty years.

No contention is made on this appeal that the evidence is not sufficient to support the verdict and judgment. Our review of the record convinces us that it is sufficient. It follows that an extended discussion of the evidence is unnecessary.

It is without dispute that deceased was killed by one, or both, of two bullets fired from a high-powered rifle while in the hands of defendant. An argument had ensued between defendant and Williams while they and others were at the home of defendant’s mother. With Williams at the time was one Pete Culpepper. Williams and Culpepper left the house by the front door. Defendant obtained the rifle and went out the back. Defendant testified that Williams had stated “Ive got something out in the damn car for you.” Defendant met Williams around the corner of the house. Defendant testified that Williams then said, “I’m going to kill you, you Goddam son-of-a-bitch” and that defendant then fired and hit Williams. Williams then retreated into the yard out of the sight of all except defendant. Defendant followed and went to Williams, where he was on his hands and knees as if he were looking for something in the grass. Defendant testified that Williams tried to pull the gun away from defendant and the gun discharged again. Defendant returned to the house and killed Pete Culpepper with the rifle. He then fled and voluntarily surrendered the next day.

Nine days before the commencement of the trial, defendant’s attorney filed a motion stating that in his opinion defendant was then mentally incompetent to understand the proceedings against him or to properly assist in his own defense. The motion further alleged that the attorney had had discussions with many who knew defendant and that on the basis of such discussions the attorney was of the opinion that defendant was insane, that he should not be made to stand trial due to his mental incompetency, that he was without funds to obtain expert testimony with regard to his competency to stand trial and that his plea of insanity could not be properly presented without the order prayed for in the motion. The prayer was as follows :

“WHEREFORE THESE PREMISES CONSIDERED the Defendant, by and through his attorney, prays that this Honorable Court will, pursuant to Title IS, Section 426, et. seq., institute a careful investigation, call a respectable physician and other creditable witnesses, and, if necessary, call a jury, to determine the sanity of the Defendant.”

Before commencement of the trial, defendant’s attorney referred to the motion, and the court replied:

“The defendant’s motion requesting an examination by a physician is denied.”

Appellant’s sole insistence on a reversal of the judgment appealed from is based upon the action or inaction of the trial court relative to its duty as prescribed by Title 15, § 426, Code of Alabama 1940 (Recomp. 1958), as follows:

“§ 426. . . . Inquisition in certain cases of felony; proceedings. — If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct. If the jury shall find the accused sane at the time of their verdict, they shall make no other inquiry, and the trial in chief shall proceed. If they find that he is insane at that time, the court shall make an order committing him to the Alabama state hospitals, where he must remain until he is restored to his right mind. When the superintendent of the hospitals shall be of opinion that such person is so restored he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to prison on an order of such judge, and the criminal proceedings resumed. In no event shall such person be set at large so long as such prosecution is pending, or so long as he continues to be insane.”

The cited section of the Code of Alabama and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) and Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed 292 Ala. 745, 293 So.2d 489, have established standards we are required to follow to safeguard the constitutional right of a defendant to prevent his being tried for a criminal offense while he is incompetent to stand trial.

There was testimony pro and con on the question of defendant’s insanity. There is little, if any, evidence to indicate that defendant’s mental condition at the time of trial was different from what it was previously, particularly at or about the time of the commission of the alleged crime.

But for the difference between the test of a defendant’s mental competency to stand trial and the test of his mental competency to commit the crime charged against him, it would logically follow, we think, that the verdict and judgment that in effect found against him on his plea of insanity, with which there is no complaint on the part of appellant and no disagreement on our part, should not be disturbed. But the tests are not the same. Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556.

The State urges that the unsupported and unverified opinions of counsel as contained in the motion in this case are insufficient to furnish a basis for a bona fide doubt of defendant’s competency to stand trial. We so held in Moore v. State, 52 Ala.App. 179, 290 So.2d 246. In Moore, however, we looked for and did not find any evidence sufficient to sustain the aver-ments of the motion. Here, also, we should and do look to the entire record to determine whether there was sufficient evidence to require action by the trial court pursuant to defendant’s motion and pursuant to Code of Alabama, Title 15, § 426.

The evidence on the trial of this case relative to the question of defendant’s sanity presents, we think, a serious question whether the trial court should have had “reasonable ground” to doubt his sanity.

Difficulty in reaching a correct conclusion whether the trial court should have proceeded further than it did toward a determination of the mental competency vel non of defendant to stand trial is enhanced by the development on the trial that the defendant had been previously tried, approximately one year before the trial in this case, and convicted of the homicide of Pete Culpepper. This is brought to our attention in the record by a statement made by defendant’s counsel immediately after the trial court’s overruling of his motion considered above. Further reference was thereafter made to the previous conviction. This fact gives rise to the natural suggestion of the probability that the trial court, the parties and their counsel were aware of facts, not shown by the record in this case, bearing on the question of the mental condition of defendant that all had the right to consider and conceivably did consider. Of course, each case should have been, as it doubtless was, tried on its merits without regard to the other case, but we do not understand that Title 15, § 426 of the Code requires the trial judge to close his eyes to information that has properly come to his attention, even though some information is not shown by the transcript on appeal. We are left in a state of wonder if there were facts that had properly come to the attention of the trial court that are not shown by the record on appeal that partly formed the basis for the ruling of the court. If so, we should have the benefit thereof.

We think the case should be remanded to the trial court for action substantially in accordance with the prayer of defendant’s motion, that is, for a hearing and determination whether there is reasonable ground to doubt or a bona fide doubt on the part of the trial court of defendant’s competency to stand trial at the time of trial and, if so, for a jury determination of the issue of his competency to stand trial. Thereafter, disposition adverse to appellant may be here reviewed by appellant’s giving notice of his intention to ask a review and supplementing the present record on appeal with a.transcript of the proceedings on remand. In that event, we will expect and welcome prompt briefs of parties in the usual order. In any event, the trial court shall notify this court of its final action on remand so that we may further proceed toward an affirmance or a reversal of the judgment as the results of further proceedings in the trial court warrant. Pierce v. State, supra.

The judgment of conviction is hereby suspended, and the cause is remanded to the trial court for a hearing and determination by it whether there is a bona fide or reasonable doubt of defendant’s competency to stand trial and, if so, for a jury determination of the issue of competency to stand trial.

The foregoing opinion was prepared by Honorable LEIGH M. CLARK, Supernumerary Circuit Judge, serving as Judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Judgment suspended; remanded with directions.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: PER CURIAM.

text:
    Jerry BUTTRAM v. STATE.
    7 Div. 358.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      David A. Rains, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   PER CURIAM.

’ In compliance with our opinion and order suspending the judgment of conviction and remanding this case to the trial court with directions, the trial court has conducted a hearing for the purpose of determining whether there is reasonable ground to doubt or a bona fide doubt of defendant’s competency to stand trial at the time of his trial.

The trial court’s determination as shown by its order of October, 1975, is as follows :

“Pursuant to an order entered by the Court of Criminal Appeals on June 30, 1975, this court held a hearing on September 25, 1975 which was continued for completion to September 26, for the purpose of determining whether there is a reasonable ground to doubt or a bona fide doubt of the defendant’s competency to stand trial at the time of the defendant’s trial on December 19, 1974.
“In the interim between June 30, 1975 and the above-mentioned hearing, the defendant was admitted to Bryce Hospital by order of this court for examination and evaluation as to the defendant’s competency to stand trial on December 19, 1974 and, additionally, his present competency to stand trial. As a result of such examination and evaluation, Dr. Jerold S. Lower, Clinical Coordinator, Forensic Program, at Bryce Hospital made a written report to this court stating that: ‘It is the opinion of the Board (Forensic Evaluation Board) that, while Mr. Buttram has a long-standing personality disorder, there is no evidence of his having a degree of disturbance sufficient to destroy or impair his competency or his criminal responsibility, either presently or at any time in the past. He should be promptly returned to the judicial system.’
“This report of Dr. Lower, the lay testimony offered, and this court’s own observations of the defendant during his court appearances convince the court that at the time this defendant was put to trial, he had an understanding of the proceedings against him and sufficient ability to communicate with his attorneys in preparing his defense. Accordingly, the court is of the opinion that the defendant was competent to stand trial and finds no reasonable ground to doubt such competency.
“IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED by this court that there is no reasonable ground to doubt or a bona fide doubt of the defendant’s competency to stand trial at the time of his trial.
“The Clerk of this court shall notify the Court of Criminal Appeals of this court’s determination by placing a copy of this order in the United States mail to the Clerk of the Court of Criminal Appeals, Montgomery, Alabama.
“DONE THIS 1st day of OCTOBER, 1975.”

A copy of the order was received by the Clerk of this Court on October 3. On October 15, we ordered a certified transcript of the proceedings, which was already en route, as shown by its being filed the same day.

Our review of the record convinces us that there was ample evidence presented at the hearing, attended by defendant and his attorneys, to support the determination of the trial court and that nothing in the record causes us to reach a different conclusion. There was some evidence of a “personality disorder” and at times a lack of cooperation by defendant with his attorneys, but little basis for concluding that there was any impairment of his competency to stand trial. It appears to us that he had “an understanding of the proceedings against him and an ability to communicate with his attorney (s) in preparing his defense,” and that the trial court observed and applied all of the criteria approved in Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556.

In view of the foregoing considerations and our previous opinion, the judgment of conviction and sentence appealed from should be affirmed.

The foregoing opinion was prepared by Honorable LEIGH M. CLARK, Supernumerary Circuit Judge, serving as Judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


text:
    In re Jerry BUTTRAM v. STATE. Ex parte Jerry Buttram.
    SC 1728.
    Supreme Court of Alabama.
    April 2, 1976.
    David A. Rains, Fort Payne, for petitioner.
    No appearance for the State.
   EMBRY, Justice.

Petition of Jerry Buttram for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Buttram v. State, 57 Ala.App. -, 329 So.2d 114.

WRIT DENIED.

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


text:
    Dawson Ray COTTINGHAM v. STATE.
    6 Div. 772.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    Rehearing Denied Feb. 17, 1976.

      Wilder & Nelson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State.
   CATES, Presiding Judge.

Murder in the second degree: sentence, twenty years in the penitentiary.

Cottingham, according to the tendencies of the State’s evidence, talked one Odum into killing Eugene Helms. The motive was money — Helms having recently sold a Cadillac. Odum was seen near Helms’s home on the day he was killed. Odum sold a pistol which was proved as being Helms’s.

The trial judge overruled a defense motion to exclude the State’s evidence. The defendant, as is his right, did not testify. He produced his mother and brother as alibi witnesses.

After sentencing on May 22, 1974, the trial judge appointed a different lawyer to prosecute the appeal. This- attorney was seemingly never notified of his selection. The time for a new trial expired. Then on July 17, 1974, Cottingham’s kin first told appellant’s counsel of the appointment. In brief we are told that the only formal notice came from the clerk of this court, writing that the record on appeal had been filed here November 26, 1974.

But the only prejudice which we can envisage was in shutting off the making of a motion for new trial. Under Code 1940, T. 13, § 119, in Jefferson County, (as in other single county circuits), the movant must file and tell the judge within thirty days of judgment of his motion for a new trial, etc.

A lapsed, or dilatory, motion for new trial cannot be reviewed. Ex parte Byrd Contracting Co., 26 Ala.App. 171, 156 So. 579; Nickens v. State, 31 Ala.App. 297, 15 So.2d 633. That is, time is of the essence of the right to a new trial.

A motion for new trial, however, is not a condition precedent to taking an appeal from a final judgment. Under Code 1940, T. 15, § 382 “the trial court retains jurisdiction for the purpose of granting a motion for a new trial; * * * If the motion is granted the appeal becomes moot. Blake v. State, 22 Ala.App. 394, 116 So. 302.

The presence of an attorney at trial will not permit the inference that an appellant has the services of that same attorney (or any other) on appeal. Therefore, if appellant is proven a pauper (at least until a statute or rule of court makes trial counsel appointment a continuing one) the trial court must make a separate appointment of appellate counsel. Martin v. State, 277 Ala. 153, 167 So.2d 912 ; compare ABA Standards Relating to Criminal Appeals, § 2.2(a) .

The right now conferred (though not limited) by statute, to move for a new trial is a valuable one. We consider it of equal dignity to the statutory right to a struck jury. Hence, its preclusion would, on analogy, be the deprivation of a substantial right not affected by the harmless error principle. Southern Ry. Co. v. Milan, 240 Ala. 333, 199 So. 711.

We are affirming the judgment on the trial below based on the record before us. This action is taken under Code 1940, T. 15, § 389.

However, execution is to be stayed to allow appellant thirty days to file as though under § 119, supra, a motion for new trial.

We recognize this result as an exception. Exceptions test rules: here a constitutional right to counsel in the first appellate proceeding (Douglas v. California, 372 U. S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811), compels us to allow a proceeding ordinarily not to be had. Lapsley v. Weaver, 44 Ala. 131; Anno. 139 A.L.R. 340, fn 1.

If the motion for new trial is filed and denied, appellant may bring an independent appeal here — apart from this appeal. In such event the record on the instant appeal should not be duplicated since we take judicial notice of our records. Of course, if the motion is granted there would be a consequent venire facias de novo.

At all events appellant’s counsel must advise this court of the proceeding during the ensuing thirty days, otherwise the certificate of affirmance will issue automatically. If the motion for new trial is filed and the hearing thereof is duly continued by the circuit court, this court reserves the right of granting appropriate stays of execution.

Affirmed: execution stayed for thirty days.

All the Judges concur.

ON REHEARING

This cause has been consolidated, i. e., the record originally submitted has been supplemented with a record resulting from a hearing in the circuit court on July 11, 1975, of appellant’s motion for a new trial. This transcript did not get to us until January 30, 1976.

The hearing below centered on whether or not George Coleman, a witness for the State on the original trial, was of such mental incompetency that his testimony could not be believed. This question was presented only by an affidavit of Coleman himself in which he stated that he used chloral hydrate, and also by unexplained medical records of his ins-and-outs of hospitals in Jefferson County for various and sundry ailments, imaginary and otherwise. We find that the trial judge did not abuse his discretion in overruling the motion for a new trial since the matter raised therein was in pertinent part explored by cross examination at the original trial.

McElroy on Evidence (2 ed.) § 94.01(2) relating to mentally defective persons as witnesses refers to Code 1940, T. 7, §§ 439 & 440, to the effect that persons during lunacy are incompetent witnesses.

We think it important to note that nowhere in the original trial was any question raised as to the mental capacity of Coleman as a witness. In view-of the provisions of § 440, supra, that the trial judge must, by examination, decide upon the capacity of such a one, it is axiomatic that there be a challenge at the trial to such a witness. No such challenge having been made here, there was no opportunity to observe Coleman at the time he was testifying with respect to his mental capacity. It may be that Coleman was vague, with poor memory, but nevertheless, the lawyer who represented the defendant at the trial did not appear to be impressed to the degree of raising his mental ability.

The trial judge, at the beginning of the hearing, referred to the fact that defense counsel had raised in this court on appeal the fact that notice of appointment of himself had not reached him personally, yet he admitted in open court that the message may have been sent to his office. Counsel who hangs up his shingle and employs clerks must accept the usual effects of principal and agent so far as notice from a court to him (whether or not through an intermediary) is concerned.

The lapse of a cause, like a baton dropped by relay runners, is now less likely, under Rule 24(b), ARAP, which reads in part:

“(1) Appointed trial counsel shall continue as defendant’s counsel on appeal unless relieved by order of the trial court.”

After a consideration of the entire consolidated record in this cause the judgment below is due to be

Affirmed; application for rehearing overruled.

All the Judges concur.

      . “ * * * it cannot be presumed that an appellant is represented by counsel in the appellate court where no brief has been filed or argument made, irrespective of whether the appellant was represented in the trial court by counsel of his own choosing or by court-appointed counsel.”

      . “(a) Trial counsel, whether retained or court-appointed, should continue to represent a convicted defendant to advise on whether to take an appeal and, if the appeal is sought, through the appeal unless new counsel is substituted or unless the appellate court permits counsel to withdraw in the interests of justice or for other sufficient cause.”

      . Code 1940, T. 7, § 440, reads:
      “The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness, or infancy.”


author: ALMON, Justice.

text:
    In re Dawson Ray COTTINGHAM v. STATE. Ex parte Dawson Ray Cottingham.
    SC 1730.
    Supreme Court of Alabama.
    April 2, 1976.
    Philip P. Nelson, Wilder & Nelson, Birmingham, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Dawson Ray Cottingham for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cottingham v. State, 57 Ala.App.-, 329 So.2d 116.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Jerry David MANESS v. STATE.
    8 Div. 666.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      Lee & Lee, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of W. L. Neeley “by striking him with his fists.” At trial, the jury found the appellant guilty of manslaughter in the first degree and fixed punishment at ten years imprisonment. The trial court then pronounced judgment, setting sentence in accordance with this verdict.

Dr. Frank Haws testified that he examined W. L. Neeley in the Huntsville Hospital emergency room at approximately 8:30 p. m. on the night of December 19, 1974, at which time the patient was deeply unconscious, having been transferred from Scottsboro for the treatment of a head injury. Dr. Haws stated that Neeley’s condition deteriorated thereby necessitating certain surgical procedures; tracheotomy, arteriogram, and craniotomy, each of which he described in court. Dr. Haws explained that in spite of his efforts, the patient did not improve and passed away at 5:55 a. m. on December 21, 1974. Dr. Haws concluded his' testimony by stating that death was a result of cerebral contusion, complicated by subdural hematoma, fracture of the nasal bone, and multiple contusions of the face.

Johnny Presley testified that on the afternoon of December 19, 1974, he and the appellant were riding around in appellant’s truck. He stated that around 5:00 p. m. they noticed W. L. Neeley’s car parked in front of Bob Creed’s house in Davistown in Jackson County and appellant said that he wanted to speak with Neeley, so they pulled in. Presley said that Neeley and his daughter came out of the house and Neeley told them to follow him home, and they would have a drink of whiskey. He said that at an intersection, not far from Creed’s house, Neeley got out of the car his daughter was driving and walked back and got into the truck with them because his daughter wanted to go and see her boyfriend. Presley stated that he and appellant had been drinking beer and that they offered one to Neeley. He explained that the three men drove about two miles and then pulled over to the side of the road to relieve themselves. The witness continued by saying that, while standing at the back of the truck, he heard a “commotion” and walked around the side of the truck and found Neeley lying on his back on the shoulder of the road with appellant bent over him, swinging at him with his fists. He said that he intervened and “raised appellant up,” that the appellant then offered to take Neeley home, but that Neeley refused, saying, “Hell, no, let me stay here.” Presley stated that the appellant carried him home where his father, Jim Presley, told appellant to go on home, that he would go back and see about “W. L.” The witness said that he and his father then went back to the scene of the fight, picked up Neeley, and headed toward the hospital in Scottsboro. Presley testified that prior to the fight he had noticed only one small mark on the deceased’s forehead.

Deputy Sheriff Claude Morgan testified that he met the car driven by Jim Presley which was carrying W. L. Neeley to receive medical aid. He stated that he called an ambulance and then checked Neeley and discovered that he had quit breathing. Morgan said that he administered artificial respiration until the ambulance arrived.

Mrs. W. L. Neeley, wife of the deceased, testified that she was a licensed practical nurse at Jackson County Hospital and that she was on duty the evening of December 19, 1974, when her husband, face badly bruised and unconscious, was brought into the emergency room at approximately 7:00 p. m. Mrs. Neeley stated that on the recommendation of Dr. Jones, her husband was transferred to Huntsville where he was treated by Dr. Haws, but, nonetheless, died without ever regaining consciousness. She said that her husband weighed between 140 and ISO pounds and stood S'S" tall.

On cross-examination, Mrs. Neeley said that several weeks prior to his death, her husband had been laid off from work, at which time he began drinking.

Another deputy sheriff, Mike Wells, identified several photographs of the body of the deceased that were taken in his presence in the Scottsboro Funeral Home. These photographs were then admitted into evidence as State’s Exhibits Nos. 1-3.

At this point the State rested and appellant’s motion to exclude was denied.

The first witness called by the defense was Walter Goggans. Mr. Goggans stated that he operated a store in Jackson County where the deceased traded. He said that Neeley came by the store on the afternoon of December 19, 1974, at which time he had bruises “all over his face.” Goggans added that Neeley had been drinking.

The appellant’s, Jerry Maness’, testimony essentially was the same as that of the State’s key witness, Johnny Presley. Appellant added, however, that when he got out of the truck to go to the bathroom, he told Neeley that he wanted to talk with him about some obscene phone calls that his, appellant’s, mother had received. Appellant stated that Neeley admitted making the calls and then further vilified his mother. He explained that Neeley swung first and that the fight lasted only a very short while before Johnny Presley intervened. Appellant also said that Neeley’s face was already severely bruised when he got in the truck with Presley and him, and that after the fight he did not realize that Neeley had been seriously injured. He concluded by saying that after he learned of Neeley’s death, he turned himself in at the Jackson County Sheriff’s Office.

On cross-examination, the appellant said that at the time of the fight, he weighed about 210 pounds.

Officer Max Robertson of the Jackson County Sheriff’s Department testified that on the morning of December 21, 1974, the appellant entered the Sheriff’s office of his own volition and made a statement to the effect that Neeley had started the fight and that he, the appellant, used only his fists in defending himself. Robertson added that he noticed a scab on one of the appellant’s hands and a bruise on his forearm where appellant claimed that Neeley had kicked him.

In rebuttal for the State, Jimmy McKee testified that he had seen W. L. Neeley after supper on the night of December 18, 1974, at which time he observed only a single small scratch on Neeley’s face.

Appellant’s written request for the affirmative charge was refused, and his motion for a new trial was overruled after a hearing thereon.

I

Appellant first contends the trial court erred in allowing into evidence photographs of the deceased, marked State’s Exhibits Nos. 1-3. He argues that the photographs are highly prejudicial because of the “surgical incisions” that appear.

In McKee v. State, 253 Ala. 235, 44 So. 2d 781, the Court stated:

“ ‘ * * * The sole question is whether the physical evidence will assist, and not mislead, the jury in understanding the matter before them. It is not necessary that the object sought to be admitted be in exactly the same condition as at the time of the occurrence of the fact that it is intended to illustrate; such a requirement would make evidence of this nature inadmissible in practically all cases, since it is hardly ever possible to reproduce conditions exactly. . . . There was no error in admitting in evidence a photograph of the deceased, taken after the performance of an autopsy, even though the photograph showed marks of incisions made for the purposes of the autopsy, the autopsy surgeon pointing out to the jury the marks resulting from his examination.’ . . . .”

Here, prior to the introduction of the photographs into evidence, Dr. Frank Haws had already testified, therein describing each of the three operations that he had performed upon W. L. Neeley, Furthermore, the trial court instructed the jury to limit their consideration of the photographs to those areas unaffected by the surgery.

We are of the opinion that the marks resulting from surgery were sufficiently pointed out to the jury. Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268; Means v. State, 51 Ala.App. 8, 282 So.2d 356, cert. denied 291 Ala. 792, 282 So.2d 359; McKee v. State, supra.

The photographs in question were properly admitted as they tended to shed light on the acts, motive, and intent of the appellant. Snead v. State, 251 Ala. 624, 38 So.2d 576; Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. denied 289 Ala. 747, 272 So.2d 270; Means v. State, supra.

II

During the cross-examination of the State’s eyewitness, Johnny Presley, appellant’s counsel moved the trial court to order the prosecution to produce an alleged “statement” given to State authorities by Presley and the court refused.

In Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied 290 Ala. 363, 276 So.2d 640, it was held:

“The first requisite necessary to secure for inspection production of a ‘statement’ of a witness for use on cross examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him. In the instant case there was nothing to indicate by query of the witness by the defense or otherwise that the witness had given to any officer a written statement signed or authenticated by her. There was not laid in the evidence any showing that any statement made by the witness to officers before trial differed in any respect from statements made to the jury during trial. See Bellew v. State of Mississippi, 238 Miss. 734, 106 So.2d 146, cited with approval in the Mabry case, supra. Neither was there any such showing of inconsistency in testimony given by the witness at a preliminary hearing previously held and the testimony given by her on the trial before the jury. There is no showing that the statement requested, if any, was of such nature that without it the defendant’s trial would be fundamentally unfair. The production for inspection of any such statement as above defined lies within the sound discretion of the court and we find no abuse of that discretion in the ruling here made. See Annotation, Right of Defendant in Criminal Case to Inspection of Statement of Prosecution’s Witness for Purpose of Cross Examination or Impeachment, 7 A.L.R.3d, pp. 181, 217, 219, 213 citing the Mabry case, supra, and the authorities therein noted.”

After a review of the evidence adduced at the hearing on appellant’s motion for a new trial, we are clear to the conclusion that the unsigned notes in question did not amount to a statement as defined in Cooks, supra, but merely represented the work product of a county investigator’s interview of a prospective witness, and as such were not subject to appellant’s motion to produce. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Fortenberry v. State, 55 Ala.App. 1, 312 So.2d 573; and Cooks, supra.

Ill

Appellant next cites us to three instances in the record where he insists that the trial court committed reversible error in overruling his motions for a mistrial.

During the cross-examination of defense witness Walter Goggans, the district attorney asked, “You know about him having other fights, and you are scared of him, aren’t you?” [R. p. 86]

Later, during the direct examination of a State’s rebuttal witness, Jimmy Moore, the district attorney asked the witness, “Do you know the general reputation in the community out there of Mr. Jerry David Maness, as to peace and quiet?” [R. p. 125]

Neither of these questions were answered. In each instance, the trial court immediately sustained appellant’s objection and charged the jury to disregard the question even though no answer had been elicited. The trial court therefore properly overruled appellant’s motions for a mistrial. Lowe v. State, 48 Ala.App. 740, 267 So.2d 529; Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied 292 Ala. 718, 299 So.2d 312.

In his closing argument for the State, the district attorney commented, “The State has one chance. The State cannot appeal.” [R. p. 13]

Again, appellant’s objection was sustained and the trial court immediately instructed the jury that they were to totally disregard the district attorney’s statement. The court added that the jury’s sole responsibility was to determine the guilt or innocence of the defendant of the charge in the indictment, and that whether or not the State could appeal had absolutely nothing to do with the case. The trial court concluded by asking the jury, “Is there any one of you who feels that they are not able to disregard that statement ? I take it that no person had signified affirmatively, that you can all disregard the statement?” There was no response from the jury. The court was correct in overruling appellant’s motion for a mistrial based on improper argument by the district attorney. Divine v. State, 279 Ala. 291, 184 So.2d 628; George v. State, 54 Ala.App. 90, 304 So.2d 908; Adair v. State, 51 Ala.App. 651, 288 So.2d 187.

Neither do we believe that the cumulative effect of the aforementioned questions and statement was such as to create an ineradicable atmosphere of prejudice and bias toward the appellant when, as here, the court in each instance sustained the appellant’s objections and admonished the jury to disregard such. McAllister v. State, 44 Ala.App. 511, 214 So.2d 862.

In view of the prompt action of the trial . court, error to reversal is not here shown. Authorities cited, and West v. State, 54 Ala.App. 647, 312 So.2d 45, cert. denied 294 Ala. 78, 312 So.2d 52.

IV

Finally appellant argues that the trial court committed reversible error by refusing his requested charges, Nos. 19, 20, and 21, dealing with the defense of self-defense as it relates to an assault and battery. Though not all worded exactly alike, each of these charges stands for the general proposition that the doctrine of retreat, as applied to self-defense in a criminal homicide, i. e., murder or manslaughter, is not applicable to the right of self-defense in an assault and battery situation, or stated slightly differently, one is not required to retreat before using non-deadly force in one’s own defense.

Appellant was tried on a first degree murder indictment and the jury returned a verdict finding him guilty of manslaughter in the first degree. In its oral charge, the trial court charged the jury on first and second degree murder, first and second degree manslaughter, and assault and battery. The trial court then charged the jury as to the law of self-defense in a criminal homicide, but failed to do so with respect to an assault and battery.

It is to be noted that, unlike Weldon v. State, 50 Ala.App. 477, 280 So.2d 183, relied upon so heavily by appellant in brief, the jury in the instant case was charged as to the lesser included offense of assault and battery and could therefore have returned a verdict finding appellant guilty of such lesser charge only. However, the jury made a finding of fact as evidenced by their verdict, that the appellant used deadly rather than non-deadly force against Neeley. That being the case, any error by the trial court in refusing appellant’s charges delineating his duty to retreat vel non before using non-deadly force to defend himself was rendered harmless.

Under Rule 45, Alabama Rules of Appellate Procedure, we have carefully considered the entire testimony, and conclude that, in view of the severe beating administered to the deceased, which, in the opinion of Dr. Haws, was the contributing cause of death, the possibility of death being attributable to a prior encounter was only theoretical. Accordingly, the trial judge, in giving a charge as to assault and battery as a lesser included offense, gave the defendant a possible benefit to which he was not legally entitled under the evidence. Therefore, the refusal of these charges, Nos. 19, 20, and 21, was not error since, in our opinion, assault and battery was not shown.

Moreover, the jury, by its verdict, chose not to give credence to any hypothesis based upon assault and battery or involuntary manslaughter.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

All the Judges concur.