author: BRADLEY, Judge.

text:
    STATE of Alabama v. TOLL GATE GARMENT CORPORATION, a corporation.
    Civ. 1124.
    Court of Civil Appeals of Alabama.
    July 27, 1977.
    Rehearing Denied Aug. 24, 1977.
    William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., and Ron L. Bowden, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    James K. Davis, of Fite, Davis & Fite, Hamilton, for appellee.
   BRADLEY, Judge.

This is an appeal by the Alabama State Department of Revenue from a final judgment of the Circuit Court of Marion County setting aside a use tax assessment in the amount of $14,069.58 entered against taxpayer Toll Gate Garment Corporation.

The Alabama Department of Revenue (hereinafter referred to as State) entered a final assessment for use taxes against Toll Gate Garment Corporation, a corporation (hereafter referred to as taxpayer) in the amount of $14,069.58 for the years 1973, 1974 and 1975 pursuant to Title 51, Section 788, Code of Alabama 1940 (Recomp. 1958) (Supp.1973). The taxpayer appealed the use tax assessment to the Circuit Court of-Marion County. The Marion County Circuit Court found that the cardboard boxes and cartons which had been purchased by taxpayer and used by it to ship to its customers shirts that taxpayer had manufactured were not used by taxpayer for storage, use or other consumption within the meaning of Title 51, Section 788, thereby in effect finding these items were purchased by the taxpayer at wholesale. State appeals to this court.

The evidence shows that taxpayer contracts with various companies which sell shirts at retail to manufacture shirts for these companies according to their directions. The taxpayer’s customers provide it with cloth, buttons, labels and linings which are used to manufacture the shirts; the taxpayer does not gain title to these items or to the manufactured shirts. The taxpayer furnishes the pins, tissue, collar board and collar rim with which the finished shirts are packaged. The shirts are packed in paper boxes, with each box containing from one to four shirts. The boxes of shirts are then placed in cardboard cartons for shipment to the taxpayer’s customers, who sell the shirts at retail.

Approximately one-half of the taxpayer’s customers provide the taxpayer with the boxes and cartons in which the shirts are packed and shipped. In those cases in which the customer does not furnish the taxpayer with boxes and cartons, the taxpayer purchases the boxes and cartons from suppliers outside the State of Alabama; the customer specifies the size, color and type of box it wishes and either furnishes or requests the taxpayer to print its brand label.

The taxpayer bills its customers for the labor expended in manufacturing the shirts. When the taxpayer also purchases boxes and cartons for its customers, the cost of these items is added to the price of making the shirts and billed to the customer as one charge. A separate charge for the boxes and cartons is not made.

The taxpayer says that it purchases the boxes for the convenience of its customers, so that a customer will not have to supply its own boxes. The purpose for placing the shirts in the boxes is to keep them ready for sale. The boxes of shirts are placed in the cartons to protect them while in transit.

Title 51, Section 788(a), Code of Alabama 1940 (Recomp. 1958) (Supp.1973), imposes a use tax on personal property purchased outside the State of Alabama as follows:

“An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property . purchased at retail on or after the first day of October, 1965, for storage, use or other consumption in this state at the rate of four percent of the sales price of such property, except as provided in subsections (b) and (c).”

The use tax is imposed only on out-of-state retail sales; if the out-of-state sale is a wholesale sale, the tax is not imposed. State v. Reynolds Metal Co., 263 Ala. 657, 83 So.2d 709 (1955). The State says that the taxpayer does not fall within the wholesale exemption and thus the use tax applies. The taxpayer argues that its purchase of the boxes and cartons in question is a wholesale sale rather than a retail sale.

Therefore, we must decide whether the taxpayer’s purchase of boxes in which it packages the shirts it manufactures but does not sell is a wholesale sale under Title 51, Section 787(d), Code of Alabama 1940 (Recomp. 1958) (Supp.1973). The pertinent portion of section 787(d) is as follows:

“The term ‘wholesale sale’ or ‘sale at wholesale’ means any one of the following: ... a sale of tangible personal property ... to a manufacturer . which enters into and becomes an ingredient or component part of the tangible personal property or products which such manufacturer manufactures . . .for sale, and the furnished container and label thereof; a sale of containers intended for one-time use only, and the labels thereof, when such containers are sold without contents to persons who sell or furnish such containers along with the contents placed therein for sale by such persons . . .” (Emphasis supplied.)

The taxpayer says first that its purchase of boxes and cartons is a wholesale sale because the the boxes are “furnished containers” within the meaning of the statute. To respond to this argument it is necessary to interpret section 787(d) in the light of predecessor statutes and court decisions construing both these statutes and the present one.

The predecessor statute to section 787(d) provided as follows:

“The term ‘wholesale sale’ or ‘Sale at wholesale’ means a sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale. The term ‘wholesale sale’ shall include a sale of tangible personal property or products to a manufacturer, mine, quarry operator, or compounder which enters into and becomes an ingredient or component part of the tangible personal property or products which he [manufactures] and machinery used in such compounding, mining, quarry [operation,] manufacturing, or processing.”

Under this definition of wholesale sale, the supreme court in City Paper Co. v. Long, 235 Ala. 652, 180 So. 324 (1938), determined that sales of wrapping paper, twine, paper bags, paper cartons and other paper containers and similar articles made by the City Paper Company to licensed retail merchants, jobbers, dealers, manufacturers or other wholesalers constituted a sale at retail and was therefore subject to the sales tax on the basis that the retail merchants, etc. were the ultimate consumers of the containers.

The City Paper Co. case was followed and applied to cardboard powder boxes, pill boxes, bottles, jars, and similar containers purchased by retail druggists and used by them as containers for the drugs and medicines sold at retail by them to their customers. Durr Drug Co. v. Long, 237 Ala. 689, 188 So. 873 (1939). City Paper Co. v. Long and Durr Drug Co. v. Long were both reaffirmed in Birmingham Paper Co. v. Curry, 238 Ala. 138, 190 So. 86 (1939).

The legislature then amended the statute defining wholesale sales by adding the language: “and the furnished container and label thereof.” This phrase was carried over in the present section 787(d).

The additional phrase in question was interpreted by the supreme court in Alabama-Georgia Syrup Co. v. State, 253 Ala. 49, 42 So.2d 796 (1949) to refer to:

“ . . . containers which are sold to manufacturers or compounders for use in packing their products for sale and which are sold by the manufacturer or com-pounder along with or as a part of their product.” 253 Ala. at 53, 42 So.2d at 799.

The state sought to tax cartons used by the manufacturer-taxpayer to pack cans and bottles of syrup which it produced. The taxpayer did not sell individual bottles or cans of syrup, but sold only cases of syrup. Thus, the cartons together with the bottles or cans constituted the unit of merchandise sold to a purchaser. The court, in holding that the cartons were “furnished containers” within the meaning of the statute and thus exempt from taxation, recognized the legislative intent behind the amendment:

“ . . . It seems reasonable to us that in making this change in the law the legislature recognized the impracticability of attempting to foresee the uses to which the containers would be put in the transition to manufacturers or compound-ers and then to their customers with the consequent uncertainty to the sellers of deciding when to collect and when not to collect taxes from their buyers.” 253 Ala. at 53, 46 So.2d at 799.

In State v. Albright & Wood, Inc., 268 Ala. 607, 109 So.2d 844 (1959), the supreme court indicated that the purpose of the amendment was to avoid double taxation on the containers. There the state sought to tax bottles withdrawn from inventory by a druggist and used to package medicine purchased in large quantities by the druggist and resold in smaller quantities. The court recognized that no tax was due on bottles used to contain medicines compounded by the druggist, but by a strict construction of the statute imposed the tax on bottles used to contain medicines the druggist had not himself compounded.

In the case at bar the taxpayer unquestionably manufacturers shirts; however, it does not sell the shirts either at wholesale or retail. During the manufacturing process it never gains title to the material used to produce the shirts or the finished shirts. The taxpayer “sells” only its skill and labor in cutting and sewing the shirts. Thus, we must decide whether the tangible personal property which the taxpayer manufactures for sale, and which it places in the containers, sought to be taxed, must be sold by the manufacturer/taxpayer itself, or merely sold eventually.

Taxing statutes are to be construed in accordance with their real intent and meaning, and not so strictly as to defeat the legislative purpose. Alabama-Georgia Syrup Co. v. State, supra; Dixie Coaches v. Ramsden, 238 Ala. 285, 109 So. 92 (1939). We think that by amending the definition of wholesale sale after the three decisions City Paper Co. v. Long, Durr Drug Co. v. Long and Birmingham Paper Co. v. Curry the legislature made clear its intent to postpone the taxing of containers until the final retail sale of the product. After a careful reading of the Alabama-Georgia Syrup Co. case and State v. Albright & Wood, Inc., supra,we are convinced that the supreme court construed section 787(d) so as to implement that intention of the legislature.

In the case at bar the cost of the boxes and cartons is included in the sales price of the shirts, and a sales tax is collected on the retail price of the shirt in Alabama; therefore these boxes and cartons are ultimately taxed.

For the reasons above stated the judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2806.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ„ concur.


author: HOLMES, Judge. HOLMES, Judge.

text:
    Louis J. ROUSSEL v. Charles H. PAYNE, as Commissioner of Insurance of the State of Alabama, American Tidelands Life Insurance Company, Tidelands Capital Corporation.
    Civ. 1171.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1977.
    Rehearing Denied Oct. 12, 1977.

      Robert M. Alton, Alton, Leavell & Boggs, Montgomery, for appellant.
    Charles H. Barnes, Asst. Atty. Gen., and Gen. Counsel, for State Dept, of Ins., appel-lee.

      Charles M. Crook, Montgomery, and Drayton Nabers, Birmingham, for American Tidelands Life Ins. Co. and Tidelands Capital Corp., appellees.
   HOLMES, Judge.

This is an appeal from an order of the Commissioner of Insurance for the State of Alabama.

The Commissioner approved a merger between American Tidelands Insurance Company (hereinafter ATL) and New American Tidelands Company (hereinafter New ATL) whereby ATL would become a wholly owned subsidiary of Tidelands Capital Corporation (hereinafter TCC). Pursuant to the merger, all the stock of ATL, except those shares owned by TCC, would be exchanged for the stock of TCC.

In July, 1976, ATL applied for approval of a “Joint Agreement and Plan of Merger” between TCC, ATL, and New ATL pursuant to Tit. 28A, § 541, Code of Alabama 1940 (1973 Cum.Supp.). By order dated July 27, 1976, the Commissioner set a hearing on ATL’s application for August 16, 1976. The appellant, Louis J. Roussel, appeared at the hearing and argued insufficient notice of the hearing. Renotice of the proposed merger plan was given on November 22, 1976, and the hearing date was set for January 5,1977. A hearing was held on that date and on March 7, 1977, the Commissioner entered his order approving the plan of reorganization and merger.

Thereafter, pursuant to Tit. 28A, § 47(2), Code of Alabama. 1940 (1973 Cum.Supp.), Roussel appealed to the Circuit Court of Montgomery County on March 22, 1977. On April 28,1977, the circuit court affirmed the Commissioner’s order in all respects. Appellant-Roussel then filed his notice of appeal to this court.

The jurisdiction and scope of review of this court is based upon Tit. 28A, § 47(5), Code of Alabama 1940 (1973 Cum.Supp.), as set out below, in pertinent part:

“The court shall reverse, vacate or modify the commissioner’s decision or order in whole or in part if it finds that:
“(a) The commissioner erred to the prejudice of appellant’s substantial rights in his application of the law; or
“(b) The decision or order was procured by fraud or was based upon a finding of facts contrary to the weight of the evidence; or
“(c) The commissioner’s action was arbitrary or capricious.”

The statutory scheme concerning mergers and consolidation of stock insurers reveals that no such merger or consolidation is to be effectuated until a plan and agreement has been filed with the Commissioner, approved by him in writing, and after a hearing of such merger. As set out above, this procedure was followed in this instance.

The Commissioner is to give approval to the plan within a reasonable time unless he finds the plan to be (1) contrary to the law, (2) inequitable to the stockholders of any domestic insurer involved, or (3) would substantially reduce the security of and service to be rendered to policyholders of the domestic insurer in this state or elsewhere. See Tit. 28A, § 541(2), Code of Alabama 1940 (1973 Cum.Supp.).

The appellant contends the trial court was in error in upholding the Commissioner’s order because the merger is in violation of all three of the above standards set out in Tit. 28A, § 541(2), of the Code. More specifically, appellant argues:

1. The Commissioner was without authority to approve the merger of ATL with a corporation which is not a life insurance company nor one which was not in existence at the time approval was given.

2. The use of the merger had the effect of “squeezing out” the minority by forcing them to either accept stock in a noninsu-rance corporation or cash for the fair value of their stock.

3. The forcing of the minority shareholders to accept stock of TCC (alleged by appellant to be a “nonregulated, non-insurance corporation”) or cash is not fair and equitable.

The tendency of the evidence reveals that as of November 19,1976, ATL had 1,044,679 shares of common stock issued and outstanding with 705,444 shares (67.5%) owned by TCC. TCC is a Louisiana holding company which holds the stock of ATL and Tidelands Data Systems (a small computer service company of which it has 100% control). The holdings which TCC has of ATL makes up 97% of its total assets. TCC is in turn -controlled by Western Preferred Life Insurance Company which owns 2,747,147 (62.2%) of TCC’s 4,415,073 shares outstanding. The appellant-Roussel is a minority shareholder of ATL, owning 9,294 shares (0.89%) of its common stock.

Under the terms of the “Joint Agreement and Plan of Merger,” TCC would cause to be issued 2,289,836 shares of its authorized but unissued common stock which would be conveyed to ATL. A new Alabama life insurance company to be called New ATL Company would be formed. ATL would convey the 2,289,836 shares of TCC stock to New ATL Company and would pay over bonds in the amount of $2,000,000, with $1,000,000 to be used as the capital and a second $1,000,000 to be used as surplus for New ATL Company. The above transaction is in compliance with Tit. 28A, § 55(1), Code of Alabama 1940 (1973 Cum.Supp.), which sets out the minimum capital and surplus required to form a new domestic stock life insurance company.

New ATL Company would then be merged into ATL, bringing with it the $2,000,000 and the 2,289,836 shares of common stock of TCC. ATL then will exchange the 2,289,836 shares to TCC stock for the 339,235 shares of ATL stock owned by minority stockholders with the result being that the minority stockholders of ATL would become minority stockholders of TCC and ATL would become a wholly owned subsidiary of TCC.

In the order of the Insurance Commissioner, the plan of reorganization and merger was approved subject to New ATL meeting all financial and other requirements to become licensed as a life insurance company. The order further stated that “The issuance of a Certificate of Authority for New Tidelands Life Insurance Company will be considered evidence that all requirements have been met.” On April 28, 1977, a certificate of authority was issued by the Insurance Department authorizing New , ATL to engage in the business of insurance. Pursuant to the “Joint Agreement and Plan” between ATL and New ATL, the merger was consummated on May 3, 1977, after approval by the Board of Directors and shareholders of New ATL.

I

As to appellant’s first contention, this court finds that the order of the Commissioner was not contrary to the law.

The Commissioner did not approve the merger of ATL with a noninsurance company, but instead, approved the merger subject to New ATL meeting the financial requirements of a life insurance company as set out in Tit. 28A, § 55(1). New ATL was to exist as an insurance company or else the approved merger would never take place.

Thus, the merger of ATL with New ATL was in conformance with Tit. 10, § 21(56)(10), Code of Alabama 1940 (1973 Cum.Supp.), set out in part below:

“[B]ut no corporation formed for the purpose of carrying on the business of banking or insurance shall consolidate or merge with any other corporation than corporations engaged in the business of banking or insurance or trust companies doing a banking business. . . . ”

When the merger became effective on May 3, 1977, the merger was between ATL, an insurance company, and New ATL, also an insurance company, which is not contrary to the law. This court, considering Tit. 28A, § 541, can find no authority for the contention that New ATL must actually exist at the time approval is given to the merger. Put another way, we find nothing in the statute which prohibits the Commissioner from allowing an insurance company to merge with another insurance company, subject to the second insurance company becoming an approved insurance company. Clearly, in this instance, the Insurance Commissioner’s order became effective only if New ATL became a life insurance company.

Appellant’s contention that New ATL did not meet the requirements of the Alabama Insurance Holding Company Act has no merit in that New ATL was specifically exempted from such requirements by order of the Insurance Commissioner. Tit. 28A, § 556(9)(f)(2), Code of Alabama 1940 (1973 Cum.Supp.), is controlling since:

“(f) Exemptions. — The provisions of this section shall not apply to:
“(2) Any offer, request, invitation, agreement or acquisition which the commissioner by order shall exempt therefrom as (i) not having been made or entered into for the purpose and not having the effect of changing or influencing the control of a domestic insurer, or (ii) as otherwise not comprehended within the purposes of this section.”

As is clear from the evidence, control of the insurer will not change because TCC already owned 67.5% of ATL’s stock which in itself amounts to total effective control. The provisions of § 556(6)-(19) are not applicable for an additional reason due to the fact that the merger had to be approved in a § 541 hearing and therefore the merger was not “comprehended within the purposes” of the Holding Company Act.

II

Appellant’s second argument involves the contention that the majority stockholders are using a “phantom” corporation to squeeze out the minority shareholders. The crux of the matter is that there is no support for the argument, either by case law or statute, that whenever a newly formed subsidiary is created for the purpose of facilitating a merger the merger is illegal. See Grimes v. Donaldson, Lufkin & Jenrette, 392 F.Supp. 1393 (N.D.Fla. 1974).

The reorganization between Tidelands Capital and American Tidelands involved what is known as a three-party merger whereby the parent of a partially-owned subsidiary creates a second subsidiary and the two subsidiaries merge. As a result thereof, the stock of the parent is issued to the minority shareholders of the first subsidiary. Such a three-party merger is expressly provided for in Alabama as set out in Tit. 10, § 21(65)(c), Code of Alabama 1940 (1976 Cum.Supp.):

“To effect such consolidation or merger, the board of directors of each constituent corporation shall, by resolution adopted by each such board, approve a plan of consolidation or plan of merger, setting forth
“(c) The manner and basis of converting the shares of the constituent corporations into shares or other securities or obligations of the new or surviving corporation or, in whole or in part, into cash or property or into shares, other securities, or obligations of any other corporation.”

A provision of this type allows the shareholders of the merged corporation (ATL) to receive securities of some third corporation, such as stock of the parent of the surviving merged corporation (TCC). This was the procedure followed in the present case.

As to the aspect of appellant’s contention that such merger was devised by the majority shareholders to freeze out the minority, this court can also find no merit to such argument. In all mergers or consolidations, it is common knowledge that some shareholders will be “frozen out” if the requisite majority agrees to adopt such plan of merger.

The Code of Alabama, in Tit. 10, § 21(66), (1973 Cum.Supp.), provides:

“The plan of merger or plan of consolidation shall be approved upon receiving the affirmative vote of the holders of at least two-thirds of the outstanding shares of each such corporation, . . . ”

In every merger or consolidation, it is therefore axiomatic that some shareholders will be frozen out unless they all agree to such merger. Once the merger is approved by the requisite two-thirds vote of the shareholders, the minority can choose to either accept what is offered in the exchange as fixed by the merger agreement or dissent and assert rights provided for them in Tit. 10, § 21(73).

The fairness of the vote on the plan of merger is conclusive as evidenced by the record. TCC agreed to vote its stock in favor of the merger only if a majority of the minority stockholders voting at the meeting did so (and which an overwhelming majority did). Thus, the evidence tends to show that the minority shareholders were the ones who had the final voice as to the merger and it was not a scheme devised by the majority to freeze out the minority.

In some instances, the courts have disapproved mergers which “freeze out” minority shareholders. However, in these cases the courts have found the following factors to be present: (1) No corporation or business purpose for the merger other than eliminating the minority shareholders. (2) The merger was a cash merger (i. e., shareholders would have to accept cash and would have no further interest in the corporation). (3) The merger would result in the majority stockholders having 100% interest in the resulting corporation. See Bryan v. Brock & Blevins Company, Inc., 490 F.2d 563 (5th Cir. 1974), cert. den., 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1975); Marcou v. Federal Trust Company, 268 A.2d 629 (Sup. Jud.Ct.Me.1970).

This court, after careful review of the record, can find no evidence tending to show any “freeze out” of the minority shareholders. There was a valid corporate purpose in seeking the merger and reorganization (/. e., effect savings in the day to day operations of the two corporations and to prevent any potential claims of conflict of interest). See Grimes v. Donaldson, Lufkin & Jenrette, supra, at 1402. The evidence also tends to reveal that the minority shareholders of ATL will still have a stock and equity interest in ATL even though they receive stock of TCC. It is therefore not a cash merger. Finally, the shareholders of ATL will continue to have an interest in ATL through their holdings of TCC stock and thus the majority stockholders will not have a 100% interest in the resulting corporation. Following the standards of the above cases, the merger in the instant case did not freeze out the minority shareholders and in fact resulted in them holding a greater proportionate interest in ATL than they had before, due to the exchange ratio.

Ill

Appellant’s last contention involves the argument that accepting the stock of TCC or, in the alternative, cash for the fair value of ATL stock was not fair and equitable treatment of the minority shareholders. Pursuant to the plan of merger and reorganization, the minority stockholders of ATL will receive 6.75 shares of TCC stock for each one share of ATL stock. The evidence further reveals that dissenting shareholders were given the option of trading in their ATL stock at $6.00 per share which was well above the market price of ATL stock at the time of the merger.

The undisputed evidence in the record points out that at the time of the hearing before the Commissioner, the market for TCC was $.65-$.80 and for ATL, $2.62-$3.12. The testimony of appellant himself reveals that, over the past two years, he has purchased stock of TCC at prices of $1.32-$1.38 per share. This in itself shows the relative market value of the stock of TCC and the fairness to the shareholders in the merger plan. The ratio of 6.75/1 thus resulted in ATL shareholders having stock with a greater market value following the reorganization than before.

Both of the plans offered in exchange for ATL stock resulted in a higher price than that guaranteed by Tit. 10, § 21(73), of the Code, which just assures dissenters “payment of the fair value of his shares.” This court also notes that since over 97% of TCC assets are its holdings of ATL stock and because following the reorganization, TCC will own 100% of ATL, the character of the investment of ATL’s shareholders did not change as a result of the reorganization. Their investment continued to be in ATL, but through a holding company.

In fact, the undisputed evidence at the hearing showed that the only dilution which resulted from the reorganization will be the dilution of control of Western Preferred Life over TCC.

As a result of the issuance of TCC shares pursuant to the reorganization, Western Preferred Life’s percentage ownership of TCC’s outstanding shares will be diluted from approximately 67% to 41%.

This court further notes the relative rights of the minority concerning actions by the majority shareholders as set out in Altoona Warehouse Co. v. Bynum, 242 Ala. 540, 545, 7 So.2d 497, 502 (1942):

“Those who embark in a corporate enterprise as stockholders do so under an implied agreement that the business shall be controlled and directed by a majority of the stockholders . . . .”

In this case, the majority of the minority voted to adopt the plan of merger and the dissenting shareholders were given several options as to the disposition of their ATL stock. However, the convincing and undisputed evidence reveals the dissenting shareholders were treated in a far more equitable manner than that specified in the statutes concerning dissenting shareholders’ rights.

With the merger having been properly made in accordance with the applicable statutes and the minority shareholders being fairly and equitably provided for, this case is due to be and is affirmed.

The appellant-Roussel through able counsel has filed with this court a motion to strike appellee’s brief. The basis of this motion is that certain portions of appellee’s brief contain matters dehors the record. This court in this instance, as in all instances, only considers relevant matters as shown by the record. The motion is therefore denied.

AFFIRMED.

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

HOLMES, Judge.

The appellant-Roussel, in brief in support of his application for rehearing, contends that this court’s statement that, “When a merger became effective on May 3, 1977, the merger was between ATL, an insurance company, and New ATL, also an insurance company, which is not contrary to the law.”, is based on matters dehors the record. We do not agree. Motions filed in this court by appellant-Roussel clearly reveal that the merger, as set out in our opinion, did occur on May 3, 1977. However, in any event, whether the merger occurred then, or later, or not at all is immaterial to the issues as previously decided.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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


text:
    Ex parte Louis J. ROUSSEL.
    77-53.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   ALMON, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    The FIRST NATIONAL BANK OF BIRMINGHAM, as Co-Trustee of The Estate of Dan R. Hudson, and Elizabeth S. Hudson, as Co-Trustee of the Estate of Dan R. Hudson, et al. v. C. H. CHICHESTER, Jr.
    Civ. 1114 and Civ. 1114-A.
    Court of Civil Appeals of Alabama.
    Sept. 28, 1977.
    Rehearing Denied Oct. 26, 1977.

      W. Gerald Stone, Bessemer, for the Trustees.
    William O’Neal Whitt, Jr. and Frank M. Bainbridge of Bainbridge & Mims, Birmingham, for Julian S. Boriss.
    John H. Lavette, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

This is an action by a real estate broker for compensation brought upon breach of (1) an oral contract, (2) an implied contract, (3) a quasi-contract and (4) for work and labor. There was a general jury verdict for plaintiff and judgment in the amount of $9,534.34. Defendants appeal. We reverse.

Hudson and Boriss, joint owners of certain vacant real estate in Vestavia Hills, signed a sales contract agreeing to sell that real estate for $75,000. The purchaser was not named in the contract but plaintiff was designated agent to negotiate the sale for a commission of 6%. The date of the contract was June 21,1972. It was the testimony of defendant Boriss that plaintiff was orally authorized to submit the offer of sale to only one prospective purchaser, a Mr. DeAr-mond. Plaintiff denies such limitation.

Plaintiff carried the offer of sale to DeArmond who refused it and made a counter offer of $35,000. Defendants refused. Plaintiff then carried the offer to officers of the City National Bank and the Central Bank. Each refused the offer. The plaintiff then offered the sale to The First National Bank of Birmingham on July 13, 1972. Mr. Powell of that bank viewed the property with plaintiff, drew up a counter offer for $70,000 and went with plaintiff to submit the offer to Hudson. Powell stated that Hudson rejected the offer, telling him that plaintiff was not authorized to make the offer of sale to The First National Bank. Plaintiff testified that Hudson said nothing to Powell at that meeting as to his lack of authority.

On July 15,1972, Hudson and Boriss went with plaintiff, at his request, to a meeting with officers of The First National Bank. Hudson there stated that plaintiff had been authorized to offer the property only to DeArmond and that it was no longer for sale. Plaintiff did not dispute such lack of authority.

There is no testimony of any further contact between plaintiff and Hudson and Bor-iss concerning the property, until plaintiff learned that a lease of the property had been given to The First National Bank on April 4, 1973. Plaintiff had no part in the negotiation of the lease.

Plaintiff demanded a commission from the lease of Boriss. Boriss refused saying that the property was leased, not sold, and that plaintiff had only been authorized to offer the property for sale to DeArmond. Hudson died in July, 1973. Plaintiff filed a claim for a commission based upon the written contract to sell. The claim was denied. Plaintiff brought suit claiming $13,846.13 for breach of an oral contract, an implied contract, a quasi-contract and for work and labor. The jury returned a verdict for $9,534.34. Motions for new trial and judgment n. o. v. were denied.

The defendants have filed separate appeals presenting some different issues; however, most of the issues presented are common.

Defendants, The First National Bank of Birmingham and Elizabeth S. Hudson as Co-Trustees of the Estate of Dan R. Hudson first present the issue of whether an action may be properly maintained against them on a debt claimed against the estate. It is the contention of these defendants that the proper parties to such action are the executors of the estate and not the trustees. Such contention is correct. Title 61, Art. 5, Code of Alabama (1940) (Recomp. 1958). That contention is not contradicted. However, it is to be answered by the fact that the record discloses that a motion for leave to amend under Rule 15 with attached amendment adding The First National Bank of Birmingham and Elizabeth S. Hudson as Co-Executors of the Estate of Dan R. Hudson as parties defendant was certified served upon counsel for defendants on May 29, 1975. The motion was granted on June 11, 1975. Defendants declare they did not receive the motion and amendment and that no summons and complaint was filed and served upon them.

Though the amendment here was designated as an addition of parties defendant, it was in fact and effect a mere change in the capacity of the defendants. The First National Bank and Mrs. Hudson were, in fact, both co-executors and co-trustees. The offices of co-executor and co-trustee were united in the same person. There was such an identity of interest between the bank and Mrs. Hudson as co-trustees and as co-executors that a suit against them in one capacity was notice to them in the other capacity. To require the mere formality of service of another summons and complaint upon their being added as defendants in their capacities as co-executors would be useless and of no point. Hirsh v. Bruchhausen, 284 F.2d 783 (2d Cir. 1960). In this case, their defense was not affected and no prejudice occurred. Of course, the amendment related back under Rule 15(c) ARCP. Board of Water and Sewer Commissioners of the City of Mobile v. McDonald, 56 Ala. App. 426, 322 So.2d 717 (1975).

Defendants insist that plaintiff was not entitled to prosecute the action because the statute of non-claims had not been complied with. (Tit. 61, §§ 210-214, Code of Alabama (1940) (Recomp.1958)). They contend that the claim filed was upon a written contract and the suit was upon breach of an oral or implied contract and for work and labor.

The purpose of the statute of non-claims is to give notice to the personal representative of the nature, character and amount of the claim and to distinguish it from other claims so that it may be investigated and the question of liability determined. Merchants Nat’l Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So.2d 122 (1948); Roberts v. Grayson, 233 Ala. 658, 173 So. 38 (1937). Failure to lay his claim in the terms of the form of action subsequently used to enforce it does not bar the suit. Watson v. Hamilton, 210 Ala. 577, 98 So. 784 (1923); Metcalf v. Payne, 214 Ala. 81, 106 So. 496 (1925).

Defendants submit that testimony was admitted over objection contrary to Tit. 7, § 433, Code of Alabama (1940) (Recomp. 1958) (Deadman’s Statute). We agree.

Section 433 provides:

“[N]o person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, or when such deceased person, at the time of such transaction 'or statement, acted with any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed . . . .”

There can be no question but that much testimony of plaintiff falls within the statute as applied and interpreted by the courts. DeShazo v. Miller, 346 So.2d 423 (Ala.1977). Plaintiff contends that defendant waived the statute. Plaintiff says defendants waived the incompetency of plaintiff to testify as to the transactions between himself and the deceased Hudson, when they failed to object to the testimony of Boriss and officers of The First National Bank who were called as witnesses by plaintiff to testify to statements between Hudson and plaintiff. This contention is not supported by the facts or the law.

The testimony of the officers of The First National Bank as to statements of the deceased to plaintiff was not incompetent under the statute. They were disinterested witnesses, having no pecuniary interest in the result of the suit. If they had any interest, such interest was opposed to the interest of the plaintiff who called them to testify. Taylor v. First Nat’l Bank of Tuskaloosa, 279 Ala. 624, 189 So.2d 141 (1966); DeShazo v. Miller, supra.

The testimony of Boriss as to transactions between Hudson, himself and plaintiff were admissible as was the testimony of plaintiff as to his transactions or conversations with Hudson when Boriss was present. If one associated with the deceased was present when a transaction occurred and is alive and able to give his version of the facts, the statute does not apply. Homewood Dairy Prods. Co. v. Robinson, 254 Ala. 197, 48 So.2d 28 (1950); Lowery v. Stinson, 291 Ala. 415, 282 So.2d 244 (1973); Sheppard v. T. R. Miller Mill Co., 332 So.2d 374 (Ala.1976).

The trial court overruled objections to testimony of plaintiff as to conversations or transactions between him and deceased Hudson, saying that defendants had “waived the Deadman’s Statute because you have not made the proper objections at the proper time . . . .” Exactly what the court meant by its statement is not clear. Plaintiff supports the court’s statement on two grounds. First, that the ground stated for the objection was not sufficient. That premise is not supported by the record nor by the statement itself. The ground of the statute was clearly stated many times during plaintiff’s testimony and the objection was overruled. Though a party may not object to illegal evidence at one point, such failure does not waive the right to object to other illegal evidence at another point. Radue v. McCullough, 47 Ala.App. 154, 251 So.2d 773 (1971). The record is clear that the ground for defendant’s objection was very evident though it was not specifically stated in each incident. Second; plaintiff and the court seem to have considered that because defendants had not objected to the testimony of Boriss and the bank officers concerning transactions between Hudson and plaintiff, they had waived all right to claim the benefit of the Deadman’s Statute. We have previously shown that to be a false premise. The testimony of Boriss and the bank officers was not incompetent under the statute. Failure of defendants to object to legal testimony could not constitute a waiver of the right to proper objection at another time. We find no waiver by defendants of the benefit of the statute and the court erred to reversal by failing to sustain timely objection to the testimony of plaintiff as to his transactions and conversations with Hudson when Boriss was not present.

Defendants contend they were entitled to a directed verdict or judgment notwithstanding the verdict. We agree.

The verdict for plaintiff was general. If the evidence supports any of the theories for recovery stated in the complaint it will be permitted to stand. Clikas v. Steele, 287 Ala. 270, 251 So.2d 575 (1971). There were three claims stated in the complaint—oral contract, implied contract and work and labor. There can be no question that proof of an oral contract failed. Plaintiff admits there was no oral contract of any sort.

The relationship between plaintiff and Boriss and Hudson began when plaintiff secured the signatures of Boriss and Hudson to a contract of sale of the land at a price of $75,000. That contract contained a provision that plaintiff was the agent for the sale and would be paid a commission of 6% in the event of sale. Considering the evidence most favorably to plaintiff that contract remained in effect until July 15, 1972. It was revoked by Hudson who announced to plaintiff and The First National Bank that the property was not for sale and that plaintiff had no authority to offer it for sale. There could not have existed an implied contract between plaintiff and defendants as to the sale of the property while the written contract remained in force. Humphrey v. Boschung, 47 Ala.App. 310, 253 So.2d 760 (1970); Summers v. Ralston Purina Co., 260 Ala. 166, 69 So.2d 858 (1954). Therefore, an implied contract could only have arisen from the acts and relationship of the parties subsequent to July 15, 1972.

There is no evidence, not a scintilla, that plaintiff and Hudson and Boriss had any contact after the revocation of plaintiff’s agency (if it then existed) on July 15, 1972, until a commission was demanded of Boriss after the lease was already executed. Plaintiff admits that he knew nothing of the lease nor of the negotiation leading to its execution. There was a nine-month interval between the meeting of the parties at The First National Bank and the execution of the lease.

It is the rule that the agency of a real estate broker to sell is revocable at the will of the principal. Gulf Trading Co. v. Radcliff, 216 Ala. 645, 114 So. 308 (1927). However, revocation may not end the obligations of the principal to pay a commission if a sale is thereafter made. There are involved the good faith of the principal in the revocation and whether the work of the agent prior to revocation of his authority was the efficient cause of the sale. Dancy v. Baker, 206 Ala. 236, 89 So. 590 (1921). The undisputed fact in this case is that plaintiff presented to The First National Bank an offer to sell for a price of $75,000. The bank, after investigation and consideration, went with plaintiff to Hudson with a counter offer to purchase for $70,000. It is without conflict that Hudson refused the bank’s offer, saying that plaintiff had no authority to offer the sale to the bank. At a meeting two days later, Hudson again declared plaintiff without authority to have offered the sale to the bank. Nearly nine months later Hudson and Boriss executed a lease with the bank for the property. The lease is entirely different from the authorized offer of sale. There is involved more than a slight variation in terms. Plaintiff at no time attempted negotiation of a lease with the bank or anyone. There is no evidence of fraud or bad faith in the refusal of a sale to the bank. There is no evidence that Hudson continued uninterruptedly negotiations begun by plaintiff which culminated in a contract not markedly different from that plaintiff was authorized to make. Dancy v. Baker, supra.

The burden was upon plaintiff to establish that Boriss and Hudson had revoked his authority in the midst of his negotiations and completed what he had begun with his customer upon the same or less advantageous terms for the purpose of avoiding payment of his commission. Handley v. Shaffer, 177 Ala. 636, 59 So. 286 (1912). Plaintiff produced no credible evidence to support such burden. The mere fact that an entirely different contract than that offered by the plaintiff was executed between Hudson and Boriss and the bank nine months later is insufficient. Dancy v. Baker, supra.

It is the opinion of the court that the legal evidence presented was insufficient to support a verdict upon any of the theories presented by plaintiff and the motion for directed verdict should have been granted. Dillon v. Nix, 55 Ala.App. 611, 318 So.2d 308 (1975).

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . It is without conflict because we have heretofore said that plaintiff was incompetent to testify concerning the event under the Dead Man’s Statute.


author: FAULKNER, Justice.

text:
    Ex parte C. H. CHICHESTER, Jr.
    77-132.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: HOLMES, Judge. WRIGHT, Presiding Judge,

text:
    In re George Corley WALLACE v. Cornelia Ellis WALLACE. Ex parte Cornelia Ellis WALLACE.
    Civ. 1346.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1977.

      George W. Dean, Destín, Fla., Ira Dement, Montgomery, for petitioner.
    Maury D. Smith and Charles M. Crook, Montgomery, for respondent.
    Marlin V. MacLaughlin, Jr., Montgomery, for Jay Lewis, amicus curiae.
   HOLMES, Judge.

Cornelia Ellis Wallace, the respondent and cross-complainant in a divorce action pending in the Circuit Court of Montgomery County, has petitioned this court to issue its Writ of Mandamus to the Honorable John W. Davis, III, as circuit judge, sitting in the pending case, requiring him to (1) recuse himself from presiding as judge in said case and (2) requiring him to henceforth hear all matters in said case in open court with free access to the public.

After answer of complainant George C. Wallace and Judge Davis and replications thereto, the petition was heard orally by this court on November 28, 1977. After consideration of the matter, the opinion and judgment of the court is as follows:

The undisputed facts are that the original petition for divorce was filed by Honorable George C. Wallace against Cornelia E. Wallace on September 12, 1977. The petition with summons was carried by counsel for Governor Wallace to Judge John Davis, as Judge of the Family Court, and Judge Davis took assignment of the case and entered an order setting a pre-trial conference for September 20 at 8:00 A.M. Mrs. Wallace answered the petition and filed a cross-petition on September 15, 1977. At the same time she filed a motion requesting Judge Davis to recuse himself from sitting as judge in the case.

The recusal motion averred as grounds that the Governor was a party in the case; that there has existed a long friendship between the Governor and the father of Judge Davis; that the Governor had been and might still be a patient of Judge Davis’s father, a physician; that Judge Davis was initially appointed judge by the Governor; that such grounds could be a basis for bias and prejudice. The motion to recuse was set for September 20, 1977, at 8:00 A.M. and pre-trial hearing originally set for that time was reset for 9:00 A.M. on September 20, 1977. Notice of the setting of the motion was given counsel for Mrs. Wallace on September 19, 1977.

At 8:00 A.M. on September 20, 1977, counsel for Mrs. Wallace appeared at Judge Davis’s chambers. Motion was made by her counsel that the motion to recuse be heard in open court. The motion was argued and denied; counsel then requested continuance of the motion to recuse because of lack of time to prepare for hearing. The continuance was denied. Counsel for Mrs. Wallace presented Judge Davis’s father-in-law and Judge Davis as witnesses in support of the motion to recuse. Their testimony revealed the following facts: Dr. Davis had performed medical services for Governor Wallace on several occasions after Governor Wallace was shot. Dr. Davis had treated Governor Wallace’s grandfather prior to his death. Dr. Davis is a personal friend, a political supporter and contributor of Governor Wallace and had been for a number of years. He had personally introduced his son to the Governor and requested the Governor to appoint him circuit judge. Governor Wallace did appoint Judge Davis as circuit judge though he thereafter won a contested election for his judgeship. Dr. Davis remained a friend, supporter, and contributor of the Governor after the appointment.

Judge Davis’s father-in-law had performed services for the State for profit while Governor Wallace was in office. Such service was awarded on a non-bid basis. The remuneration for such service was relatively small, though amounting to several thousand dollars. The father-in-law was also a political supporter and contributor of Governor Wallace. The father-in-law requested and received reappointment by the Governor to membership on the State Real Estate Board.

Judge Davis, in competition with other applicants, requested and received from Governor Wallace his original appointment as a circuit judge. He does not associate socially with the Governor.

After both presiding as judge and appearing as a witness, Judge Davis denied the motion to recuse, stating that he was not biased or prejudiced in favor of Governor Wallace and could render fair and impartial justice in the case.

On September 23, 1977, a transcript of the proceedings on the motion to recuse made by a court reporter retained by Mrs. Wallace, was filed with the clerk of the court. Judge Davis ordered the transcript of the testimony of the witnesses at the hearing be withheld by the court clerk from the press and the public.

On October 5, 1977 counsel for Mrs. Wallace read an article in the newspaper, The Montgomery Advertiser, of the ex parte discussion between Judge Davis and counsel at the filing of the original suit for divorce on September 12, 1977, and the resultant acceptance of the case by Judge Davis. Counsel incorporated this information in a motion for rehearing of the motion to re-cuse. Additional grounds assigned were the denial of a continuance and lack of opportunity to prepare for the original motion and the exclusion of the public and press from the hearing contrary to statute and the Alabama constitution. Judge Davis denied the motion for rehearing on October 12, 1977, without additional hearing.

This court has mentioned the above facts not to suggest that Judge Davis has any personal bias or prejudice against any party to the proceedings before him. Judge Davis refused to recuse himself because it was his belief that the law required him to preside over this proceeding. We can understand and appreciate such a conclusion. However, we do not agree with the conclusion, as is demonstrated below.

This matter began with the original motion contending that the appointment of Judge Davis by the Governor and the relationship of members of his family with the Governor constituted sufficient legal basis under statute, case law of Alabama, and the common law for Judge Davis to recuse himself. However, it has now evolved, through the additional motion for rehearing and the petition for mandamus with answer and arguments thereon, into the issue of whether in consideration of all the cumulative facts disclosed, Canon 3C(1) of Alabama’s Canons of Judicial Ethics requires that Judge Davis remove himself or be removed through the writ of this court in the exercise of its powers of superintendence over an inferior jurisdiction.

Canon 3C(1) is in pertinent part as follows:

“A judge should disqualify himself in a proceeding in which . . .his impartiality might reasonably be questioned. . . ."

The Alabama Canons of Judicial Ethics were adopted by the Supreme Court of Alabama on December 11, 1975. And, by so doing, it would appear that a new dimension has been added to the subject of judge disqualification. The following quote from Wells v. Wells, Ala.Civ.App., 346 So.2d 442, 444 (1977), seems to support such a view.

“There is no evidence of any partiality or prejudice on the part of the judge here. Nothing indicates that he should have disqualified himself under Canon 3C of the Canons of Judicial Ethics, nor granted a new trial.”

It is clear to this court that Canon 3C(1) must have some meaning and application. Quite frankly, we find a general standard difficult to define under this canon. This is particularly true in this instance since the judge must interpret the canon and apply that interpretation to himself. Put another way, he must interpret and be the object of that interpretation. See SC A Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977). However, in view of the facts as noted above, we can reach no other conclusion than that Judge Davis should haVe recused himself under the provisions of Canon 3C(1). We would note for whatever benefit it might be that Governor Wallace’s answer in the proceedings indicates that he feels there should be no cloud over the divorce proceedings.

We do not consider that any one or two facts in this case standing alone require recusal. It is only when the totality of the facts are shown that recusal is required. The judge’s relationship and that of his family to one of the parties, in this instance a public figure, and all the factors as indicated above, in this matter creates an impression that his impartiality might reasonably be questioned.

The reasonable question is raised in the mind of the public who must believe in the total integrity and impartiality of their judges. We believe the purpose and function of the Canons of Judicial Ethics is to support the belief and confidence of the people in their courts. We caution both counsel and judges that this decision not be construed to mean that recusal is required by mere accusation of bias unsupported by substantial fact. Each case must stand on its own.

This appearance of partiality does not reassure a public already skeptical of judges, lawyers, and the legal system. Put another way, the relationship, as shown above, might well make it reasonable for members of the public, or party, or counsel opposed to question the impartiality of the judge. See SCA Service, Inc. v. Morgan, supra. We therefore find that Judge Davis should have recused himself pursuant to the provisions of Canon 3C(1).

Having said the above, we find it necessary to make the following comments. Judge Davis, in refusing to recuse himself, relied on McGough v. McGough, 47 Ala.App. 223, 252 So.2d 646 (1970). We believe that case to be the law under the facts of that case. Furthermore, we believe that cases dealing with actual bias or prejudice are not affected by what we have said here. This case clearly is decided under the pertinent provisions of Canon 3C(1) and under the entire facts, as indicated above.

The remaining issue of whether the matter previously heard should have been in open court with reasonable access to press and public is not believed by us to be a matter available on mandamus, but is proper for an appeal. Wright v. Aldridge, 219 Ala. 632, 123 So. 33 (1929). It is done and cannot be undone by this court. The recusal of Judge Davis renders any question of what his future acts in this case while sitting as judge might be entirely moot. We therefore do not speak on the issue of open and public trial in a civil case. We consider that a decision on that issue is appropriate only when directly and properly presented to the court.

The petition for writ of mandamus is granted and our writ will issue directing The Honorable John W. Davis, Circuit Judge, to recuse himself as the trial judge in this case unless he set aside his denial of the motion for recusal and enter judgment instead granting said motion and notify the presiding judge of the 15th Judicial Circuit, The Honorable Richard P. Emmet, of his recusal within three days from the date of this order.

WRIT GRANTED CONDITIONALLY.

BRADLEY, J., concurs.

WRIGHT, P. J., concurs in result.

WRIGHT, Presiding Judge,

concurring specially:

Though I concur in the conclusion of the court in this case and assisted in composing some of the opinion, I must disagree with the view that Canon 3C is a “new dimension added to the subject of judge disqualification” and that our case of Wells v. Wells, supra, supports that view.

It is my view that Canon 3C is merely a restatement, or a statutory statement if you will, of the common law. Tit. 13, § 6 of the Code of Alabama (1940), (Recomp.1958), provided statutory grounds for disqualification of a trial judge in certain cases. In addition to the statute there were common-law grounds for recusal which a judge was expected to apply to himself. The Supreme Court of Alabama in the case of Gill v. The State, 61 Ala. 169 (1878) quoted from Freeman on Judgments as follows: “[It is] well settled by the common law that no judge ought to act where, from interest or from any other cause, he is supposed to be partial to one of the suitors.” This court in Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461, cert. denied, 289 Ala. 751, 267 So.2d 467 (1972) said that at common law,

“The judge was expected to exercise sound discretion by refraining from trying cases where any circumstances might tend to cast doubt or suspicion on the fairness of the court. There should be no . less an expectation of a fair, unbiased and coldly impartial judiciary today. . We are clear to the conclusion that every judge should avoid sitting in a case where there is foundation for reasonable charge of interest, bias or prejudice.” Id. at 673, 267 So.2d at 465.

We wrote Shell v. Shell, supra in May of 1972, long before the adoption of Canon 3C(1). However, it appears that the canon, in effect, says the same thing as we stated the common law to be in Shell.

I do not believe the statement in the opinion taken from Wells v. Wells, supra, has the effect there given to it. That statement was made in response to an argument that the trial judge should have recused himself in a case where there was no mention of recusal until motion for new trial after entry of judgment. Under such circumstances, the judge could only have re-cused himself on his own. We merely pointed out that there was no evidence presented that he should have done so in compliance with Canon 3C.

      . We consider that the canons have the force of law. See Art. 6, § 147, Constitution of Alabama 1901, as amended. Bates v. State Bar of Arizona, - U.S. -, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).


text:
    Kenneth Glenn DUNLAP v. Mrs. Robert K. JEFFCOAT.
    Civ. 1324.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1977.
    W. Mike House, Montgomery, for appellant.
    Robert T. Meadows, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is a child custody case.

The appellee, Mrs. Robert K. Jeff coat, was awarded permanent custody of a minor child by the Circuit Court of Montgomery County in a proceeding wherein the appellant, the natural father, had sought custody. He appeals.

These proceedings had their genesis in 1974 when the child’s natural mother was killed and the appellant was sentenced to prison. The record is unclear as to whether there was any connection between the appellant’s prison sojourn and his wife’s death.

Upon being sentenced to prison, the appellant carried the child, then about six months old, to his sister and asked if the child could be left with her while appellant was serving time in the penitentiary.

The sister subsequently asked appellee to take the child because she could not care for it. After consulting with her husband, ap-pellee agreed to take the child into her family. Shortly thereafter, appellee requested and obtained temporary custody of the child from the Montgomery County Juvenile Court.

In January 1977 appellant, after having been released from prison, sought to regain custody of the child, Cherrie, through the Juvenile Court of Montgomery County. This request was denied and appellant asked for a rehearing. Appellee then filed a request in the Montgomery County Family Court seeking permanent custody of Cherrie. The two proceedings were combined for hearing before the Family Court. After an ore tenus hearing, the court denied appellant’s request for custody, terminated appellant’s parental rights, and granted appellee’s request for permanent custody of Cherrie.

The evidence shows that appellant has been married three times and has a son fifteen years old by his first marriage; three girls, ages twelve, seven and three years old, by his second marriage; and no children as a result of his third marriage.

Appellant has had very little contact with his son for several years.

After being released from prison, appellant took his mother and two older daughters to Panama City, Florida where they are still residing.

The evidence shows that the two girls are living with and being supported by appellant although appellant’s mother has legal custody of them. Also the evidence shows that appellant’s mother does not live in the same house with appellant and his daughters.

There is evidence in the record that appellant has had very little contact with his daughter Cherrie. He stated at trial that he had seen her one time since he got out of prison; that he had sent her some Christmas cards while he was in prison; and that his other two daughters and his mother had sent Cherrie a gift last Christmas. Appel-lee testified that appellant had visited Cher-rie one time while Cherrie was in her custody and that this visit lasted about five minutes. Appellee also stated that Cherrie had received a Christmas card and five dollars from her (Cherrie’s) grandmother and two sisters last Christmas. The Christmas before that, appellee testified that Cherrie’s grandmother had sent Cherrie three or four dollars.

Appellant testified that he draws $164 a month from Social Security due to a disability resulting from a nervous condition. He has been treated at Bryce Hospital in Tuscaloosa, Alabama and Jackson’s Hospital in Montgomery, Alabama for this condition. Appellant also stated that he had a part-time job as a bartender where he earned about $400 a month when he was able to work. Appellant stated that he did not report his part-time employment income to Social Security for fear of losing the benefits he received from that agency.

Appellant’s two daughters received $408 from Social Security due to the death of their mother. Cherrie also receives $208 a month for the same reason and from the same source as her sisters. Appellant’s mother also- receives $197 from Social Security.

From the record it appears that the two children who live with appellant are doing well in school and that they are happy in their present environment. They live with appellant in a two bedroom house. Appellant testified that on occasion his girl friend also lived with him in his house. Appellant is not divorced from his third wife, although he has not seen her in many months.

Appellee testified that her husband and she and their seventeen year old daughter lived in Atlanta, Georgia where the husband was employed. He has been working for the same company for about fourteen years and earns $23,000 a year. Their daughter has finished high school and will be going to college in the fall. The appellee said her family and she lived in a comfortable house in a nice neighborhood. She said she worked one day a week at a local theater from 3:15 p.m. to 8:30 p.m.

Appellee also stated her daughter kept Cherrie while appellee worked and that when the daughter goes to college, appellee will quit work in order to care for Cherrie full time.

Appellee stated that she loved Cherrie and was able and willing to care for her. In its decree the trial court found that:

. . Kenneth G. Dunlap is not the proper person to have custody of the said Cherrie Dunlap nor is he capable of properly caring for the infant. The Court is further of the opinion and finds that Mrs. Robert K. Jeffcoat is a highly suitable person to have the permanent care, custody and control of the infant, Cherrie Dunlap and that same is in the best interests and welfare of said juvenile

Appellant argues in brief that the trial court erred in finding that he was not a fit parent to have custody of his three and a half year old child. Appellee replies by saying that the evidence amply supports the trial court’s finding that (1) appellant was not the proper person to have custody of Cherrie; and that (2) appellee was the proper person to have custody of the child.

In the recent case of Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977), we said:

“Although a natural parent has a pri-ma facie right to custody of his or her child, this prima facie right may be forfeited. Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393. And the mere fact that the natural parent is fit, though certainly a factor for consideration, does not automatically entitle the natural parent to custody of the child, Strickland v. Osborn, Ala.Civ.App., 333 So.2d 582, since the best interests and welfare of the child are of paramount importance. White v. Appleton, 53 Ala.App. 702, 304 So.2d 206; Esco v. Esco, 51 Ala.App. 656, 288 So.2d 444. Indeed, this court concluded in Strickland v. Osborn, supra, that a prior decree (such as the decree of October 8,1974 awarding temporary custody of the children to ap-pellee) rebuts any presumption which favors the natural parent, and places on the natural parent the burden of proving that a change in custody is necessary to promote the child’s best interests. We believe it is clear from the evidence given in the instant case that appellant failed to meet this burden.
“Moreover, in determining the question of whether a parent who has voluntarily relinquished custody of a minor child should be entitled to regain custody, each case must be determined from the particular facts involved. Horton v. Gilmer, supra. . . . ”

In the case at bar the following evidence was relevant to the trial court’s consideration of whether the natural father should be entitled to regain custody of his child: (1) appellant voluntarily relinquished custody of Cherrie (who was then barely six months old) when he was about to go to prison; (2) he draws Social Security benefits due to a nervous condition and he has been treated for this condition at Bryce Hospital and Jackson’s Hospital; (3) he works only part time and he does not report income from this employment to the proper authorities for fear of losing his Social Security benefits;. (4) he said that he was indigent and needed court-appointed counsel to represent him, yet somewhat contradictory to this claim was his testimony that he had an income of about $800 per month; (5) he has only visited Cherrie one time for approximately five minutes since he gave her up; (6) he has made very little effort to express his interest in Cherrie; and (7) he is not divorced from his third wife, yet has his girl friend live in his house with him for days at a time.

On the other hand, the evidence in support of the court’s view that appellee is the proper party to have custody of Cherrie is as follows: (1) appellee has had physical custody of the child for approximately three years; (2) she loves and cares for Cherrie; (3) she has the physical and monetary means to adequately care for the child; (4) she voluntarily took Cherrie into her house and heart; and (5) Cherrie has known no other mother and father than the Jeff coats.

In Willette v. Bannister, supra, we held that in situations where a parent has transferred the custody of a minor child either voluntarily or as a result of a prior judicial decree and the party to whom the child is transferred has acted in the manifest interests and welfare of the child, the parent will not be permitted to reclaim custody of the child unless that parent can show that a change in custody will materially promote the child’s welfare and best interests. And in reaching its determination on these matters, the trial court may properly balance the evidence in support of each party. From the record before us it is apparent that the trial court considered the evidence presented on behalf of each party and found that a change in custody would not be in the young child’s best interests.

Absent a determination that the trial court abused its discretion in its award of child custody, we have no alternative but to affirm its judgment. Smith v. State Department of Pensions and Security, Ala.Civ. App., 340 So.2d 34 (1976). After carefully reviewing the evidence in the case at bar, we cannot say that the trial court abused its discretion by awarding permanent custody of Cherrie to appellee. The judgment of the trial court is therefore affirmed.

AFFIRMED.

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

      . At the beginning of these proceedings appellant stated that he was indigent and, as a result, a lawyer was appointed to represent him.


text:
    James Roy SULLIVAN v. SPEEDWAY OIL COMPANY and Billy Joe Wells d/b/a Speedway Oil Company, etc.
    Civ. 1254.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1977.

      Sam L. Webb, Jr., of Callahan, Nichols & Webb, Tuscaloosa, for appellant.
    Michael D. Smith, Tuscaloosa, for appel-lees.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment granting a Rule 60(b) motion.

Plaintiff brought an action against Speedway Oil Company and Billy Joe Wells d/b/a Speedway Oil Company and Billy Joe Wells, individually.

Speedway Oil Company was in fact a corporation with an office in Tuscaloosa County, Alabama. Billy Joe Wells was the president of the corporation. The corporation employed a young woman to answer the phone, receive and file reports and otherwise-pass on to Mr. Wells matters which came to her attention in his absence from the office.

A deputy sheriff brought copies of the summons and complaints to the office for service. Mr. Wells was not present. He left two copies with the young woman in the corporate office and made return on the originals showing service upon Billy Joe Wells, individually and as agent for Speedway Oil Company. The copies were placed in a file marked “legal” by the young woman in the office and were not brought to the attention of Wells.

Default judgment was subsequently entered in the amount of $5,000. Garnishment of the bank account of Speedway Oil Company was filed. Notice of the garnishment by the bank to Wells was the first that he knew of the suit. Wells immediately, through counsel, filed a 60(b) motion to set aside the judgment. Grounds for the motion were stated to be failure of proper service upon the defendants.

The motion, supported by affidavits was heard by the court and judgment entered thereon setting aside the judgment by default and reinstating the case. The court stated in its judgment that it found that Wells was not personally served with process either as an individual nor as agent for the corporation and that he had no notice of the suit until the service of garnishment on the bank.

Plaintiff brought appeal from the Rule 60(b) judgment.

A motion for relief from a judgment under Rule 60(b) is addressed to the discretion of the court and equitable principles may be considered in the exercise of that discretion. Bros Inc. v. W. E. Grace Mfg. Co., 320 F.2d 594 (5th Cir. 1963). Rule 60(b) has been liberally applied in the setting aside of default judgments so that there might be a trial on the merits. Schwab v. Bullock’s, Inc., 508 F.2d 353 (9th Cir. 1974). However, in this case we do not consider whether the trial court abused its discretion, but we dismiss the appeal ex mero motu because an order granting a motion under Rule 60(b) and ordering a new trial is interlocutory and not appealable. Crowe v. Ragnar Benson, Inc., 307 F.2d 73 (3d Cir.), cert. denied, 371 U.S. 940, 83 S.Ct. 319, 9 L.Ed.2d 275 (1962); Oliver v. Home Indem. Co., 470 F.2d 329 (5th Cir. 1972); Code of Alabama § 12-22-2 (1975).

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Donald L. COBB v. Linda E. COBB.
    Civ. 1259.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1977.

      J. Earl Smith for Smith & Smith, Dothan, for appellant.
    J. Huntley Johnson, Dothan, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing, the trial court awarded the home of the parties, along with the furnishings therein, to the wife. The husband appeals and contends that the trial court committed reversible error in awarding the home to the wife. We disagree and affirm.

Viewing the record before this court with the attendant presumptions accorded the trial court, the following pertinent facts are revealed.

The parties were married in 1955. Three children were born of the union, one of which is deceased. The ages of the remaining children are 12 and 20. Sometime after the marriage, the parties moved into a home which they had constructed. There is considerable testimony that the wife’s father contributed substantial time and money toward the construction of the home. During the last six years, the wife has made most of the house payments and provided most of the funds for the upkeep of the house. Put another way, the wife has been in large measure the “breadwinner” in the family and has contributed the bulk of the family’s support. The record reveals the husband is employed as a school bus driver and that he sells vegetables from a stand for approximately six weeks in the summer.

The trial court awarded the wife custody of the minor child and ordered the husband to pay $100 per month for child support. The wife was also awarded the home of the parties along with the furnishings therein. We note that the wife is to assume and pay, as her individual debt, any indebtedness owing upon the real estate or personal property. The husband, who had removed all of his personal bélongings from the house prior to the divorce proceeding, was allowed to keep his 1977 pickup truck.

It is virtually conceded that the home was the only asset of the parties. The value of the home is approximately $50,000. As noted above, the husband contends that the trial court abused its discretion in awarding to the wife virtually the entire assets of the parties.

At the outset, we note that in this case, as in all cases where the judgment or decree is entered by the trial court after the hearing of testimony ore tenus, such judgment or decree is presumed correct. This judgment or decree will be reversed on appeal only if, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, we conclude that it is plainly and palpably wrong. See Townsend v. Townsend, Ala.Civ.App., 337 So.2d 4 (1976).

We also note that if a division of property in a case of this nature is made by the trial court, such division does not require an equal division of the estate, but one graduated according to the nature of the case. See Eubanks v. Eubanks, 52 Ala. App. 224, 291 So.2d 159 (1974).

In this instance, the learned trial judge is not plainly and palpably wrong. The fact that the parties only had one asset, i. e., the homeplace, and this asset was awarded to the wife, does not require or suggest reversal. This is particularly true in consideration of the fact that the wife has been given custody of the minor child. See Ayers v. Ayers, Ala.Civ.App., 352 So.2d 459 (1977); Eubanks v. Eubanks, supra.

The wife has requested of this court that an award of an attorney’s fee be made to her attorney on appeal. In view of the above, to wit, the husband’s limited income, this request is denied.

AFFIRMED.

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

      . This is the only issue raised and argued in brief by the husband.


author: BOWEN W. SIMMONS, Retired Circuit Judge. DeCARLO, Judge, BOWEN W. SIMMONS, Retired Circuit Judge.

text:
    William D. PARKER and Olive M. Spears v. STATE.
    3 Div. 376.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.

      Joe B. Thompson, Jr., Brewton, for appellants.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellants were indicted separately for grand larceny, and tried jointly by agreement with separate verdicts. The appeals are consolidated by agreement. Each defendant was sentenced by the court to five years imprisonment.

The subject of the larceny was seven rolls of copper wire with an alleged value of $55.00. The wire was alleged in the indictment to be the personal property of Southern Pine Electric Cooperative, a corporation. The allegation of ownership is supported by the evidence. The evidence of theft by the two appellants was largely circumstantial, but an issue of wrongful appropriation was presented to the jury.

We do not think a delineation of the evidence pointing to appellant’s guilt is necessary; but suffice it to say it was sufficient to establish the unlawful asportation and appropriation of the wire.

We do not mean to say that defendants were guilty of an offense alleged in the indictments, for the reason we have concluded that the property, the subject of the indictments, was real property which was not the subject of larceny. Adams v. State, 159 Ala. 115, 48 So. 795.

We paraphrase a statement by Chief Justice Stone in Langston v. State, 96 Ala. 44, 11 So. 334. If the prosecution had been under § 3875, Code of Alabama 1886 (now T. 14, § 432, Code of Alabama 1940) different rules would probably prevail. We quote T. 14, § 432, which is substantially the same as § 3875, Code of Alabama 1886, and reads:

“Any person who wilfully commits any trespass on the lands of another by cutting down, destroying, or mutilating or carrying off any timber or rails, of the value of less than twenty-five dollars, with intent to convert same to his own use, or by severing from the freehold any products thereof, or any property or thing thereto attached, or by tearing down, mutilating or destroying any building, structure or fixture of any character or kind thereon, or by destroying or injuring any outstanding crops thereon, or by plowing up seed that have been planted thereon, shall, on conviction, be fined not more than two hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months; and so much of the fine as is sufficient to compensate the owner of the property shall go to the injured party, said amount to be determined by the court at the time of the trial.”

Our review of authorities reveals that it is often difficult to draw distinctions between real and personal property, and each case must be determined on its own. There are, however, basic criteria that may be followed in determining the character of the property.

First, it appears that the copper wire was attached to some vertical poles with ends embedded in the ground several feet. These poles, and wires attached to the poles, were permanent in their construction and use, and were not constructed for temporary purposes.

The evidence points to the unlawful conduct of the defendants, or one of them, in detaching the wire from the poles, and the removal of the same that soon followed. There was insufficient intervening time to convert the wires into personal property; in other words, the severance of the wires and their removal was one continuous act and not separate acts. McQueen v. State, 10 Ala.App. 244, 65 So. 310; Fuller v. State, 34 Ala.App. 211, 39 So.2d 24.

Chief Justice Stone, in Langston, supra, enumerates certain basic principles of law governing the conversion of personal property into realty. We quote as follows:

“The question presented for our consideration is whether the articles alleged to have been stolen had, on account of their annexation to the freehold, lost their character as personal property, and become a part of the realty, in such sort as not to be subjects of larceny. The subject of fixtures is one of great difficulty, and has evoked much discussion and a great contrariety of opinion. When doubt arises as to whether or not a certain piece of property is a fixture, this doubt must be decided by the circumstances of each individual case, as they may be influenced by certain cardinal rules which have now become criteria for the decision of the question. If the article in question meets the requirements of these rules, its character as a fixture is determined. These rules, as gathered from the adjudicated cases, have been succinctly stated as follows: (1) Actual annexation to the realty or to something appurtenant thereto; (2) appropriateness to the use or purposes of that part of the realty with which it is connected; (3) the intention of the party making the annexation of making permanent attachment to the freehold. This intention of the party making the annexation is inferred (a) from the nature of the article annexed; (b) the relation of the party making the annexation; (c) the structure and mode of annexation; (d) the purposes and uses for which the annexation has been made. According to these rulings, we do not consider that the pump and boiler put upon the plantation of Mr. Scott lost their character as chattels, and therefore we hold that the felonious taking and carrying away of said pump, or any part thereof, was larceny. We recognize the fact that the intention of the person making the annexation is the controlling factor in determining the character of the article annexed. If the testimony of Mr. Scott had simply been that he ‘intended the said boiler and pump to be a permanent improvement on said plantation,' without further qualification, and the said boiler had been made stationary, we are not prepared to say it would not have been a fixture. If believed, the testimony ‘that said boiler and pump could be moved, and had been moved up and down the river so as to more conveniently pump water,’ takes away the immobility, which of necessity must be an element of the permanency of the improvement. It is not essential to a fixture that its annexation to the freehold be made absolutely permanent by means of foundations laid or dug, or through the fastenings of cement or iron. As was said by Clopton, J., in Tillman v. De Lacy, 80 Ala. 103: ‘The permanence of the attachment does not depend on the strength or force or manner of the annexation to the freehold, so much as upon its constancy, and upon the uses to which the attachment chattel is adapted, the purposes for which designed, and the intention of the party in attaching it.’ There can be no such permanent annexation of the chattel to realty as will merge its character of personal property into realty, unless that annexation is intended to be stationary. The boiler and engine involved in this case are no more fixtures than would be a threshing machine, which can be moved from one part of the plantation to another as necessity or convenience demands. Nor does the said engine and boiler possess more of the elements of a fixture than a gin, and it has been expressly held by this court that a gin is not a fixture. Gresham v. Taylor, 51 Ala. 505; Hancock v. Jordan, 7 Ala. 448.
“We entertain no doubt that the valves taken from the pipes of the Montgomery Furnace & Chemical Company were fixtures. They meet the requirements of the rules as laid down above in every particular as being a part of the machinery for the accomplishment of those purposes. According to the testimony in this case, the pipes attached to this machinery are fixtures, beyond all cavil, and the valves alleged to have been stolen, being necessary parts of such pipes, partake of the same character. A long line of decisions sustain this view. Insurance Co. v. Allen, 80 Ala. 571, 1 So. 202; Tillman v. De Lacy, 80 Ala. 103; Quinby v. Paper Co., 24 N.J.Eq. 260; Langdon v. Buchanan, 62 N.H. 657; Gray v. Holdship, 17 Serg. & R. 413; Washb. Real Prop. p. 22; 8 Amer. & Eng.Enc.Law, p. 43. The court erred in its charge to the jury, and in refusing to give the second and fourth charges requested by the defendant. The indictment in this case was for larceny. If the prosecution had been under section 3875 of the Code of 1886, different rules would probably prevail. Reversed and remanded.” (Italics added.)

The Supreme Court of Alabama, in a gross receipts corporation tax case, observed in Wood Preserving Corporation v. State Tax Commission, 235 Ala. 438,179 So. 254, 256, as follows:

“We are of the opinion, and hold, in line with the great weight of current authority, that cross and switch ties, piling, bridge timbers, telephone and telegraph poles and cross-arms, when annexed to the soil, for the purposes for which suited, and for which they were manufactured and sold, become fixtures and a part of the freehold. Jones v. New Orleans & Selma R. Co. and Immigration Ass’n, 70 Ala. 227; Van Keuren v. Central R. Co. of New Jersey, 38 N.J.L. 165; Tonkawa Petroleum Corp. v. Golden Rule Refining Co., 159 Okl. 3, 11 P.2d 140; City of New Haven v. Fair Haven & W. R. Co., 38 Conn. 422, 9 Am.Rep. 399; Missouri P. Ry. Co. v. Bradbury, 106 Mo. App. 450, 79 S.W. 966; Union Pac. R. Co. v. Board of Commissioners, 114 Kan. 156, 217 P. 315; American Union Tel. Co. v. Middleton, 80 N.Y. 408; Streator Ind. Tel. & Tel. Co. v. Interstate Ind. Tel. & Tel. Co., 142 Ill.App. 183, 185; Western Union Tel. Co. v. Tennessee, 9 Baxt., Tenn., 509, 40 Am.Rep. 99.”

See also Groves v. Segars, 288 Ala. 376, 261 So.2d 389, relative to fences annexed to real estate.

We do not think there is any merit in appellee’s contention, that the indictments come within a provision of T. 14, § 331, Code of Alabama 1940, 1973 Cum.Supp. to Vol. Five, which we quote:

“ * * * and any person who knowingly, wilfully and without the consent of the owner thereof, enters into any dwelling house, store house, warehouse or other building or structure and cuts, breaks, tears out, removes any plumbing fixtures, lead pipe, copper lock, grate, mantel, light, fixture or other material which has been attached to and is a part of such building, * *

We fail to see how light poles, cross-arms, and electric transmission wires annexed thereto, as here, all on open land, can be termed a building, dwelling house, or structure which a person may enter “into.” Criminal statutes are to be strictly construed, and not be stretched to make such electric transmission installations a building into which one may enter.

We think it is common knowledge of which this court will take judicial notice that the rural electric lines for the distribution of electricity, as here involved, are so annexed to the real estate as to be permanent in character to provide electric service to rural areas for all residents indefinitely. They are not temporary.

While the cutting of the wires and their immediate asportation might have been trespass, we do not think it was larceny. Legislative action to make it larceny might be advisable, but we fail to find any such legislation.

At the conclusion of the State’s testimony, the defendant’s motion to exclude the evidence (R. 182) was overruled (R. 195).

In the light of the evidence adduced by the State, we hold that no issue for the jury existed. The appropriated wire was so annexed to the poles that it was a part of the freehold and not the subject of larceny as alleged in the indictments.

The judgments against both appellants are reversed and the causes are remanded.

We pretermit discussing the refused charges. The refusal of the motion to exclude is sufficient error to reverse and remand.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

TYSON, P. J., and BOOKOUT and BOWEN, JJ., concur.

DeCARLO, J., dissents with opinion.

HARRIS, J., joins in dissent.

DeCARLO, Judge,

dissenting.

The subject of the larceny in question was copper wire belonging to the Southern Pine Electric Cooperative, a corporation. The wire was attached to vertical poles which were imbedded in the ground several feet. It is without dispute that the defendants cut the wire from the pole in a quantity sufficient to make seven rolls. The inescapable inference being that the wire, once removed from the poles was wound up in rolls.

In Fuller v. State, 34 Ala.App. 211, 39 So.2d 24, a case analogous in principle to the one under consideration, this court concluded that logs severed from the land and bunched for some indefinite time prior to being hauled away were personalty and therefore subject of larceny.

The court did not find that any specific amount of time should elapse between the acts of severance and asportation. In every case where articles have been severed from the real estate there always exists a point of time between the severance and its as-portation. I can see no difference between an instant in time and a period of hours. For in that interval, brief as it may be, the property becomes personal property and its felonious taking should be larceny.

It is true that the common law rule of larceny, was that, where the article taken was, in fact, in law a fixture, to constitute the crime, severance and asportation must be separate and distinct acts. Mr. Wharton holds that a common law larceny cannot be committed of things which savor of the realty, though when severed, the rule is otherwise; and that no particular interval of time is necessary between the severance and the asportation, only that the two acts must be separated by time, so as not to constitute one transaction. Wharton’s Crim.Law and Procedure, § 490.

It is inferable from the evidence that when the copper wire was severed from the pole it was placed on the ground and wound in rolls. At that point they became personalty with the property right vested in the Pine Electric Cooperative. As such, the wire was subject to theft, and its subsequent asportation and conversion, without the owner’s consent and with the intent to deprive the corporation of their ownership, constituted larceny. Fuller v. State, supra; Junod v. State, 73 Neb. 208, 102 N.W. 462; Eaton v. Commonwealth, 235 Ky. 466, 31 S.W.2d 718.

The old rule, and the rule followed by the majority in the ease before us, that severance and asportation of things annexed to realty should be distinct and separate acts has been discarded by many states. Even in those where it is followed it has been confined within the most narrow limits.

The severance does not destroy the title or the constructive possession of the owner, it still remains his property in its altered condition. Its asportation, though almost immediate, is as much a felonious taking of personal property of another from his possession and without his consent as if the wrongdoer had severed it on one day and removed it the next.

The theft of personal property severed from real estate is generally done with great secrecy, without fanfare and without engraved invitations. It places almost an impossible burden on the State to prove that the severance and asportation were not one continuous act. Such a rule, having its inception in antiquity, seems to be beneficial to thieves, and the adherence to such a rule would make the stealing of property severed from the realty a lucrative occupation for thieves. This rule appears to be fraught with technical niceties which have resulted in what appears to be pure absurdity and a proverbial license to steal.

The better rule it seems to me, is once the property is severed from the realty, the property is converted to a chattel and if the thief removes it with a felonious intent he is guilty of larceny, irrespective of the time employed in the removal.

Under the facts presented in the instant case and the law cited in support, it is my judgment that this case should be affirmed. For these reasons I dissent.

HARRIS, J., joins in this dissent.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

Upon further consideration of this cause, the judgment of the Circuit Court is reversed and judgment is here rendered discharging the appellant from further prosecution in this proceeding.

OPINION EXTENDED, APPLICATION OVERRULED.

TYSON, P. J., and BOOKOUT and BOWEN, JJ., concur.

HARRIS and DeCARLO, JJ., adhere to their dissent.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-184.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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