text:
    Goodwin ROSEN et al., and Condominium Association of Plaza Towers South, Inc., Appellants, v. R. A. HEDLUND, Jr., et al., Appellees.
    No. 75-611.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 10, 1976.
   PER CURIAM.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Alfred BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 75-1350.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Palm Beach County; Lamar Rose, Judge.

Appeal dismissed.


text:
    GEORGE A. RISOLO DEVELOPMENT COMPANY, INC., a Florida Corporation, Appellant, v. Richard FRICK and Ruth Frick, Appellees.
    No. 75-2044.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Palm Beach County; Thomas E. Sholts, Judge.

Appeal dismissed.


text:
    GEORGE A. RISOLO DEVELOPMENT COMPANY, INC., a Florida Corporation, Appellant, v. Robert AMODEO and Dora Amodeo, Appellees.
    No. 75-2045.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Palm Beach County; Thomas E. Sholts, Judge.

Appeal dismissed.


text:
    In re ESTATE of John F. WEIHE, Deceased.
    No. 75-1707.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Palm Beach County; Paul T. Douglas, Judge.

Appeal dismissed.


text:
    James Edward HIGGINBOTHAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-1739.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Osceola County; Cecil H. Brown, Judge.

Appeal dismissed.


text:
    Robert W. PIPER and Jane M. Piper, Appellants, v. Billy F. ENZOR, Appellee.
    No. 75-1872.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Broward County; Lamar Warren, Judge.

Appeal dismissed.


text:
    TROPICANA POOLS, INC., a Florida Corporation d/b/a Zodiak Pools, Appellant, v. Kenneth S. CUMMING and Georgina Cumming, his wife, Appellees.
    No. 75-2158.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Orange County; George N. Diamantis, Judge.

Appeal dismissed.


text:
    Floyd D. WALTERS and Charles Roughton, Appellants, v. C. Sweet SMITH, Jr., Appellee.
    No. 75-1910.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal from Circuit Court, Brevard County; Richard B. Muldrew, Judge.

Appeal dismissed.


text:
    Charles A. BLAKE, Appellant, v. WHITE TRUCKS AND EQUIPMENT SALES, INC., Appellee.
    No. 75-1731.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 1976.
   Appeal from Circuit Court, Orange County; Frederick Pfeiffer, Judge.

Appeal dismissed.


text:
    Bloneva HEPBURN, as Personal Representative of the Estate of Celess 1. Rolle, Appellant, v. JOHN F. KENNEDY MEMORIAL HOSPITAL, INC., a Florida Corporation, et al., Appellees.
    No. 75-2226.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 1976.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Emile L. REID et al., Appellants, v. Philip J. ANDERSON and Marian J. Anderson, his wife, Appellees.
    No. 75-1717.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 1976.
   Appeal from Circuit Court, Brevard County; Roger F. Dykes, Judge.

Appeal dismissed.


author: PER CURIAM.

text:
    Leonard FRUMAN, as Administrator of the Estate of Ida Fruman, Appellant, v. COMMUNITY HOSPITAL OF SOUTH BROWARD CORP., et al., Appellees.
    No. 75-444.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    Jess Woodrow BYRD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-392.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    Howard HUNTLEY and Lumbermens Mutual Insurance Company, Appellants, v. Virginia GOODHUE, Appellee.
    No. 75-661.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


author: PER CURIAM. •

text:
    James Daniel JONES, Appellant, v. STATE of Florida, Appellee.
    No. 75-727.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
   PER CURIAM. •

Affirmed.


text:
    PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellant, v. CASTLEWOOD INTERNATIONAL CORPORATION, a Florida Corp., Appellee.
    No. 75-1079.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    Ronald POWELL, Appellant, v. Jane Greer Kelly POWELL, Appellee.
    No. 75-1214.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. John LANE, Relator, v. Honorable Gene WILLIAMS, Judge of the Circuit Court in and for Dade County, Florida, Respondent.
    No. 76-56.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1976.
   PER CURIAM.

Prohibition denied.


text:
    Arthur JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Z-377.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.
   PER CURIAM.

Affirmed.


text:
    Norman Gene OSBORNE, Appellant, v. STATE of Florida, Appellee.
    No. Z-72.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.
   PER CURIAM.

Affirmed.


text:
    Jewel PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. Y-522.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.
   PER CURIAM.

Affirmed.


text:
    Francis Patrick SMITH, Appellant, v. STATE of Florida, Appellee.
    No. Y-209.
    ' District Court of Appeal of Florida, First District.
    Jan. 26, 1976.
   PER CURIAM.

Affirmed.


text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Gerald PEKEL and Mary Pekel et al., Appellees.
    No. 75-1344.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    ALLIED GENERAL, INC., a Florida Corporation, et al., Appellants, v. BANK OF PERRINE, a Florida Corporation, Appellee.
    No. 75-1657.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Mark GIBSON et al., Appellants, v. AETNA CASUALTY AND SURETY COMPANY et al., Appellees.
    No. 76-41.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Sgt. Jesus BENCOMO, Appellee.
    No. 75-1814.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Albert REIBEL et al., Appellants, v. Thomas COWER and Diane Cower, his wife, Appellees.
    No. 75-2036.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Linda P. SLATEN, Appellant, v. Franklin D. SLATEN, Appellee.
    No. 74-1341.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1976.
   Appeal dismissed.


text:
    John A. LAYTON, Appellant, v. Mary Frances LAYTON, Appellee.
    No. 75-1634.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1976.
   Appeal dismissed.


text:
    BENEVOLENT AMUSEMENTS, INC., a Florida Corporation, and Educational Committee For Business Opportunities, Inc., a Corporation not for Profit, qualified to do business in the State of Florida, Appellants, v. STATE of Florida ex rel. James T. RUSSELL, State Attorney, Sixth Judicial Circuit of Florida, Appellee.
    No. 75-1801.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1976.
   Appeal dismissed.


author: BLOODWORTH, Justice.

text:
    NELSON-AMERICAN DEVELOPERS, LTD., a limited partnership v. ENCO ENGINEERING CORPORATION, a corporation.
    SC 1357.
    Supreme Court of Alabama.
    Jan. 9, 1976.
    Rehearing Denied Feb. 5, 1976.
    Owen & Ball, Bay Minette, for appellant.
    Pittman & Whittaker, Enterprise, for appellee.
   BLOODWORTH, Justice.

This is an appeal from a summary judgment in a mechanic’s lien suit. For the reason that this summary judgment is not a final judgment, the appeal is dismissed.

Plaintiff ENCO Engineering Corporation filed suit to foreclose a mechanic’s lien against defendants Nelson-American Developers, Ltd., the Hoopers, Winn-Dixie Louisiana, Inc., City National Bank of Miami, Union Mutual Life Insurance Company, Reveo Drug Store, Pizza Hut, Baldwin County Title Company and Southern Thea-tres of America.

ENCO’s claim of lien is based upon a contract between it (as the contractor) and Nelson-American (as the developer and long-term lessee of the real estate) to build “Grant City Shopping Center” in Baldwin County. The Hoopers are the owners of the real estate. City National Bank loaned the construction money. Union Mutual Life is the permanent lender. The remaining defendants are tenants of Nelson-American in the shopping center and were joined because of alleged deficiencies in construction.

After defendants’ motions to dismiss and for summary judgment were overruled, answers were filed. Various other pleadings, motions, orders, affidavits and depositions were filed including a counterclaim by Nelson-American against ENCO.

On March 19, 1975, summary judgment was entered in favor of the contractor ENCO Engineering against the developer North-American for $278,156.64. On May 15, 1975, the court granted ENCO’s motion for summary judgment to establish a lien on the real estate to secure satisfaction of the summary judgment entered on March 19. On June 2, 1975, ENCO filed a motion requesting that the court amend its summary judgment of May 15 to state the priorities of the parties to the lawsuit with respect to the lien. [The permanent loan was closed on July 15, 1974, by assignment to Union Mutual Life of a mortgage from Nelson-American to City National Bank.] After a hearing, the court, on June 17, 1975, amended its summary judgment of May 15 by giving the lien priority over the mortgage.

On June 19, 1975, Nelson-American gave notice of appeal. Citation of appeal was issued by the register and since perfected on ENCO and defendants Hooper. Only the developer and lessee Nelson-American as appellant and the contractor ENCO as appellee are parties to this appeal.

Initially, appellee ENCO raises, by motion to dismiss the appeal, the lack of service of a citation of appeal on Defendant Union Mutual Life, whose rights as a mortgagee of the suit property were determined adversely to it by the summary judgment of June 17, 1975. Appellee cites Tit. 7, § 804, Code 1940, which in pertinent part reads:

“§ 804. (6143) (2884) Summons or notice to parties who do not join in appeal. — Any party against whom a judgment or decree is rendered, may individually appeal to the supreme court or court of appeals without taking the appeal in the name of the other codefend-ant, but the clerk or register of the court from which the appeal is taken, shall issue a summons when the appeal is so taken, to such as do not join in the appeal to appear before the supreme court or court of appeals at the time to which the appeal is returnable, and unite in said appeal if he see proper, which summons may be served upon the party, or his attorney of record in the lower' court...."

Appellee cites decisions of this Court to the effect that service of citation of appeal, not waived, on a co-defendant adversely affected by the judgment below, is necessary to the jurisdiction of the Supreme Court, and when the record fails to show service, the appeal should be dismissed. See Pope v. Davis, 274 Ala. 201, 145 So.2d 717 (1962).

Although heretofore this has been the rule of our decisions, on April 23, 1973, this Court adopted Rule 52, 290 Ala. XVII, which provides in pertinent part:

“No appeal shall be dismissed . where the transcript of the record on appeal . . .(c) fails to show service of notice to parties who do not join in the appeal under Tit. 7, § 804 (this notice may be ordered by this court after submission if deemed necessary), . unless the failure . . . has been called to the attention of this court prior to submission by written motion . and the failure . . . remains uncorrected at time of submission . . . .”

The record shows that, after the motion to dismiss was filed on October 24, 1975, but before submission, the appellant filed herein a waiver of service of citation of appeal by Union Mutual Life Insurance Company. Thus, the failure to serve the citation of appeal has been corrected in accordance with Rule 52 and the motion to dismiss on that ground is due to be denied.

Although we find no merit in ap-pellee’s motion to dismiss, we do find that the appeal must be dismissed by the Court but for a different reason.

We have carefully examined the three summary judgments, the original order of March 19 and the two amendatory orders of May 15 and June 17. Nowhere do we find therein any “express determination that there is no just reason for delay and upon an express direction for the entry of judgment” in accordance with the mandate of Rule 54(b) A.R.C.P.

When there are multiple parties (as here) and multiple claims (as here) the rule requires such determination and direction for the reason that the order entered is interlocutory and “is subject to revision at any time before a judgment which adjudicates all the rights and liabilities of all the parties. Because it is subject to revision, it is not a final judgment and will not support an appeal.” Powell v. Republic National Life Insurance Co. et al., 293 Ala. 101, 300 So.2d 359 (1974); See also Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975), where the history of the rule is traced.

We think it clear here that this case presents more than one claim for relief, as well as having multiple parties.

As we noted in Powell, supra, “[w]hen it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.”

Moreover, as we wrote in Cates, supra, “Tit. 7, Section 754, provides that . appeal must be only from a final judgment. Rule 54(b) merely sets out one instance where a judgment may now be made final although it would not have been final prior to the adoption of the new rules.”

In conclusion, as we noted in Powell,

“This holding is not to be construed as depriving appellant of a review of the order granting summary judgment by appeal from the final judgment ultimately entered in the cause nor as precluding the trial court from vacating its prior order and entering one in conformity with Rule 54(b). See 10 Wright and Miller, supra, § 2660 (1973).”

Appeal dismissed.

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


author: EMBRY, Justice.

text:
    MOBILE COUNTY GAS DISTRICT, a corporation v. The NATIONAL CASH REGISTER COMPANY, a corporation.
    SC 980.
    Supreme Court of Alabama.
    Jan. 15, 1976.

      John M. Tyson, William H. Card, Jr. and Howell, Johnston, Langford, Finkboh-ner & Lawler, Mobile, for appellant.
    M. A. Marsal and Emmett R. Cox, Mobile, for appellee.
   EMBRY, Justice.

Appeal from a judgment entered on a jury verdict in favor of plaintiff/appellee, The National Cash Register Company (NCR). Defendant/appellant is Mobile County Gas District, a corporation (Mobile). We reverse and remand.

NCR’s complaint claimed in count one $15,626.75 for breach of contract for failure to pay the balance due on a contract allegedly fully performed by NCR. Count two claimed the same amount due by itemized verified account.

Mobile’s defenses were contained in five separate pleas. Pleas one and two were the general issue. Plea three alleged payment. Plea four was to the effect that Mobile was induced to enter the contract by fraudulent misrepresentations made by NC R. Plea five was in recoupment claiming $30,000 for fraud and special damages (other equipment and forms specially purchased for use with NCR’s machine).

The issues raised on this appeal are: (1) Was this case tried under Alabama Rules of Civil Procedure or under prior prevailing procedures? (2) Did the trial court err in giving certain written charges requested by NCR? (3) Did the trial court err by admitting in evidence a machine print-out and allowing explanatory testimony about it? (4) Did the trial court err in overruling Mobile’s motion for a new trial ?

Since we find the procedures which obtained before adoption of ARCP apply in this case and a given written jury instruction was improper and requires reversal, we pretermit discussion of the other issues.

Mobile entered into a contract with NCR for the purchase and installation of an automated billing machine which would also process Mobile’s accounts payable and payroll account. NCR installed the basic machine. There was contradictory testimony about whether the accessory equipment necessary to do accounts payable and payrolls was installed. The facts further show that Mobile wanted a machine which could handle approximately 10,000 billings a month. It is Mobile’s claim that they entered into the contract because NCR’s agents represented the machine had this capability. The testimony about what representations were in fact made, is contradictory. There is evidence that the machine did not have the capability Mobile needed.

Issue (1) : Which Rules of Procedure were employed in the trial of the case?

The trial date was 26 October 1973. However, before the jury retired this colloquy took place:

“THE COURT: All right, sir. Now, both parties to the case has (sic) a right to ask the Court to give to you written requested charges of the law. Now, this (sic) are to be taken by you and considered by you as correct propositions of the law. You will be able to take them into the Jury Room with you, we are proceeding under the old rules, you understand ?
“MR. MARSAL; Yes, sir.
“MR. TYSON: Yes, sir.”
Mobile argues that these words indicate the entire case was tried under the old rules. NCR argues that the trial court’s comment was merely intended to allow the jury to take the written instructions to the jury room. NCR points out that the trial date is after the effective date of ARCP and the trial court did not comply with ARCP 86 which requires a finding that application of ARCP would not be feasible or would work injustice. See Parker v. McGaha, Ala., 321 So.2d 182 (1975).

A decision on this issue is a threshold question since the giving of written jury charges is claimed as error. If the trial was conducted under formerly applicable procedures then each charge is treated as a separate entity apart from the court’s oral charge. If trial proceeded under ARCP then the written jury charges complained of must be considered in light of the court’s entire charge. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975).

As shown in the colloquy set out supra, the lawyers for both parties agreed that the jury in this case could take the written charges into the jury room. This practice was permissible only under our former civil procedure. Because the parties agreed that the old procedure in this regard would apply, we hold they are es-topped to urge error from the failure of the trial court to comply with ARCP 86. By the parties own acts, the old procedure controls. For the same reason NCR is es-topped to complain of the failure of Mobile to object to the charges prior to the jury retiring.

Issue (2) The Written Jury Charges

The trial court gave, in addition to others, the following written charge:

“Plaintiff’s Charge No. 18
“The Court charges the jury that all implied warranties in a contract are excluded by language which in common understanding calls the buyer’s attention to the exclusion of warranties.”

Such a charge is erroneous for it was given without instructing the jury on its relation to the issue being litigated. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975). Error resulting from the giving of a misleading charge is harmless where mere explanation would correct the misleading effect of it. Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436. In such an instance failure of the complaining party to request explanatory charges would be fatal. Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228. However, if the defective charge is not capable of cure by explanations, failure to request explanatory charges can in no way prevent appellant from complaining of reversible error from the giving of the offending charge. Russell v. Thomas, 278 Ala. 400, 178 So.2d 556. Plaintiff’s Charge No. 18 in this case was not curable by explanation. It is a misstatement of law. It is an absolute requirement that, in a contract for the sale of goods, the language excluding implied warranties must be so conspicuous as to be clearly brought to the attention of the buyer, Code of Ala., Tit. 7A, § 2-316; Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So.2d 638. Since No. 18 is clearly erroneous as a misstatement of the law, not curable, the judgment below must be reversed. Lucas v. Kirk, 275 Ala. 20, 151 So.2d 744.

It is true generally that an erroneous charge given in writing, although not neutralized by a correct charge, should be interpreted in the light of the “incidents” of the trial, including the court’s oral charge, to determine if the written charge as given was prejudicial. Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 743. The “incidents” of the trial of this case including other given written charges and the oral charge of the trial court fail to mitigate the error of Plaintiff’s Charge No. 18. Rather they substantially augment the confusion under which the jury undoubtedly labored.

As in Parker, supra, we see no reason why this case cannot be tried under ARCP upon remand unless the trial court specifically finds that application of ARCP would not be feasible or would work an injustice. The reasons for such finding must be set forth in the record. Parker, supra.

Reversed and remanded.

BLOODWORTH, FAULKNER and ALMON, JJ., concur.

HEFLIN, C. J., concurs in result.


author: FAULKNER, Justice.

text:
    Bernard S. MALKOVE v. The FIRST NATIONAL BANK OF MOBILE, a National Banking Association.
    SC 982 and SC 982-X.
    Supreme Court of Alabama.
    Jan. 9, 1976.

      Richard L. Thiry, Mobile, for appellant and cross-appellee.
    Reynolds & Lauten, Mobile, for appellee and cross-appellant.
   FAULKNER, Justice.

Malkove appeals from a judgment of the Circuit Court of Mobile County. He alleges (1) the court erred in construing the future advance clause of a mortgage executed by Claude Gross, and Lee Anne Gross, to the Bank on September 11, 1969, and (2) the court erred in holding that a mortgage executed by the Grosses, on February 26, 1971, did not cancel the debt secured by the 1969 mortgage. The Bank cross-appeals from an order denying its motion to dismiss the appeal. We affirm in part, and reverse in part.

The Facts

On September 11, 1969, the Grosses borrowed $3,500 for business purposes from the Bank, signed a note, and executed a mortgage on their home in Bay Minette. The mortgage was on a printed form containing a future advance clause, styled “dragnet” or “anaconda” by Malkove. This mortgage was recorded on September 16, and was not cancelled at the time the case was tried.

Subsequent to this loan, the Grosses incurred additional obligations to the Bank that included three installment loans, a BankAmericard account, and a signature loan. Apparently the financial fortunes of the Grosses grew markedly worse, and they moved to Miami. Threatened with foreclosure of the 1969 mortgage, the Grosses came to Mobile in 1971, and on February 26, executed a second mortgage to the Bank covering the balance of the original mortgage loan, and the subsequent indebtedness. A disclosure statement was given to the Grosses indicating their home was the security for their debt to the Bank. This mortgage, providing for 35 monthly payments commencing April 5, 1971, and one balloon payment payable on March 5, 1974, was not recorded until June 10. Meanwhile, Malkove filed suit against the Grosses on April 8, attaching the property, and recording a lis pendens notice. Judgment was rendered against the Grosses on July 1. Malkove brought the property at the sheriff’s -sale, and recorded the deed on September 30. On October 26, he notified the Bank of his interest in the property and demanded the amount for redemption. The Bank disputed Malkove’s claim of superiority of rights, and announced its intent to foreclose. Malkove filed his bill for declaratory judgment on December 15, and the Bank foreclosed on January 13, 1972, the same day it- received Malkove’s complaint.

Contention of the Parties

1. Malkove

The main thrust of Malkove’s argument at the trial was that the second mortgage worked a novation of the first mortgage. And, since the second mortgage was recorded subsequent to the lis pendens notice, he should have prevailed. Malkove argues further, if the second mortgage did not work a novation, then the first secured only the principal debt. He attacks the Bank for seemingly relying on the second mortgage to all of the Grosses’ debts, then shifting its reliance on the first mortgage.

2. The Bank

The Bank argues that the second mortgage- was a renewal, a consolidation, and an extension of the first mortgage. It says the future advance clauses are acceptable in Alabama, and the intent of the parties was to cover all indebtedness of the Grosses in the first mortgage. Moreover, the second mortgage did not work a novation of the first.

The Mortgage Clauses

1. The Consideration Clause

“KNOW ALL MEN BY THESE PRESENTS, that CLAUDE EUGENE GROSS and LEE ANNE GROSS, husband and wife, (hereinafter called ‘mortgagor’), in consideration of THREE THOUSAND FIVE HUNDRED AND NO/100 ($3,500.00) DOLLARS hereby acknowledged to have been paid to said mortgagors by THE FIRST NATIONAL BANK OF MOBILE, MOBILE, ALABAMA, (hereinafter called ‘mortgagee’), and in order to secure the repayment of all amounts heretofore, herewith or hereafter owed by mortgagor to mortgagee, at any time before actual cancellation of this instrument on the records in the office of the Judge of Probate of Baldwin County, Alabama, or the foreclosure thereof, do hereby grant, bargain, sell and convey unto the mortgagee all that real property in the County of Baldwin, State of Alabama, described as follows: * * * ”

2. The Defeasance Clause

“Providing always, and these presents are upon the express condition, that if the mortgagor shall well and truly pay to the mortgagee the said sum of $3,500.00 with interest thereon according to the tenor and effect of that certain waiver of exemption promissory note bearing even date and payable as follows: * * * said note being payable to the mortgagee at The First National Bank of Mobile, in Mobile, Alabama; and if the mortgagor shall perform all the covenants and agreements herein contained, then these presents shall be void; otherwise they shall remain in full force and effect.”

Advance Clause-

“In addition to the aforesaid indebtedness and any and all extensions or renewals of the same or any part thereof, this instrument is intended to and does secure any and all debts, obligations, or liability direct or contingent, of mortgagor to mortgagee, whether now existing or hereafter arising at any time before actual cancellation of this mortgage on the Probate Records of Baldwin County, Alabama, or foreclosure thereof, and whether the same be evidenced by note, open account, guaranty, pledge or otherwise.”

Opinion and Conclusion

Were the debts incurred after the execution of the 1969 mortgage secured by the advance clause? We are of the opinion they were not. Whether other debts between the same parties are secure under the advance clause depends on the intention of the parties. Morgan County National Bank v. Terry, 213 Ala. 313, 104 So. 762 (1925); Monroe County Bank v. Qualls, 220 Ala. 499, 125 So. 615 (1930); First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64 (1939). In Bain this court stated, “If a debtor owes several notes, and gives a mortgage expressly securing one, any intention to cover other existing notes should be quite clear and explicit . . . ”

In this case we find the defeasance clause provides that “. . . if the mortgagor shall well and truly pay to the mortgagee the said sum of $3,500.00 with interest ... ” Bain says a defeasance clause is intended to define the terms and conditions upon which a mortgage shall be satisfied, cease to be security for the debt, and become void. The clause may be misleading unless it indicates the debts to be paid before the mortgage ceases to be effective as security.

In Bain the defeasance clause read:

“ ‘Upon condition, however that upon the payment of the indebtedness hereby secured, this conveyance to be void, payment of taxes and insurance, the satisfaction of prior incumbrances and other loans and advances to the mortgagor by the mortgagee before the full settlement and payment of this mortgage and all expenses of recording are to be a part of this mortgage indebtedness.’ ” (Emphasis added.)

Cf. City National Bank of Dothan v. First National Bank of Dothan, 285 Ala. 340, 232 So.2d 342 (1970); Martin v. First National Bank of Opelika, 279 Ala. 303, 184 So.2d 815 (1966).

If the parties had intended the 1969 mortgage to include other loans, it would have been a simple matter to draft their intent in it. Furthermore, if they had intended coverage of other obligations in the 1969 mortgage, there would have been no necessity to have the 1971 mortgage executed. Construing the consideration clause and defeasance clause, we are of the opinion that the defeasance clause controls and precludes any other debts being secured under the 1969 mortgage.

Novation

Novation involves three or more parties and consists of four requisites: 1. A previous valid obligation; 2. the agreement of the parties to the new contract; 3. the cancellation of the old contract ; and 4. validity of the new contract. A. M. Robinson Company v. Anniston Land Company, 217 Ala. 648, 117 So. 29 (1928); Hopkins v. Jordan, 201 Ala. 184, 77 So. 710 (1918).

It is undisputed that the 1969 mortgage was not cancelled and satisfied of record. Cancellation of that mortgage would have been a prerequisite to work a novation. In our opinion, the intention of the parties was to keep alive the old mortgage. Cf. Montgomery Bank & Trust Co. v. Jackson, 190 Ala. 411, 67 So. 235 (1914). We conclude there was no novation.

Motion to Dismiss

The Bank contends the trial judge exceeded his discretionary power by extending the time for filing the court reporter’s transcript, and granting extensions, resulting in prejudice to it. We do not agree.

Malkove appealed to this court on September 13, 1974, from the court’s order dated March IS, by filing security for cost. The court reporter’s transcript was due in the Register’s office by November 12, but the court extended the time for filing until December 12. Another 30-days extension was granted by the court on December 12. This extended the time for filing the transcript until January 13, 1975. Meanwhile on December 23, the Bank objected to the extension of December 12, and moved to have it set aside. The Bank alleged that the court reporter had moved out of Mobile, could not find his notes, and was unable to transcribe the testimony. The Bank’s second reason for objecting to the extension was that the property was deteriorating. Before this motion was heard, the trial court granted another extension until February 12. On January 31, the court denied the Bank’s motion to set aside the extensions of December 12 and January 10. On February 7 another extension was granted until March 14. The reporter’s transcript was filed on March 3. The Bank filed motions to set aside the extension orders on February 27 and March 10. Both were denied. The transcript of the record was filed in this court on April 23.

We cannot say the trial judge abused his discretion. Regarding the extensions, this is what the trial judge said:

“THE COURT: Let me say it for the record now, we want to make this clear, back in June, I think it was, I got notice from the Court Reporter then, the one we are talking about, his physicians had stated to me that if he continued reporting cases he was going to suffer a mental relapse, a nervous breakdown. So, I immediately stopped any further activities in requiring him to report any cases. We have — for the two and a half years he has been with me, we have had, I think, a considerable amount of trial cases and he was actually my third reporter since I have been a Judge, and they have all quit due to nervous exhaustion. I don’t know how long this one is going to last but in any event, that is the reason the Reporter, of course, was relieved of his duties. He is considerably behind. We have a number of cases involving criminal matters that the Defendants are in jail or in the penitentiary awaiting the rendition of the reports to the Court. There is some area where there is a limit as to how far the Court can push someone in that condition to get these transcripts up. In the event you push them over thé hill, you never will get them. Most reporters are the only one that can read their notes. So, I think that should be a part of that record here, that this Reporter has been very ill, and as I understand is doing much better now. He has started turning in some transcripts and I have ordered him recently to turn in a transcript in a criminal case where the man has been in prison almost a year waiting for the appeal, and we have other matters which I would classify, of course, of considerably more importance than this case.”
* * * * * *
“THE COURT: And I would add to that I believe that in any appeal involving property you are necessarily going to have depreciation of the property pending the appeal even in the usual and normal course of a timely appeal, and I regret that we have this situation but that is the nature of the matter here.”

We are of the opinion the trial court granted extensions for good cause, and was within his authority in granting them. Southern Guaranty Insurance Company v. Jones, 279 Ala. 577, 188 So.2d 537 (1966).

Conclusion

1. That part of the court’s order on the issue of novation is affirmed.

2. The order denying motion to dismiss is affirmed.

3. That part of the order holding that the 1969 mortgage was security for debts of the Grosses other than the original indebtedness secured by that mortgage is reversed.

4. Malkove has the rjight to redeem the property from the Bank upon payment of the principal balance, plus accrued interest, as of the date of his demand for charges necessary for redemption.

Affirmed in part, reversed in part, and remanded.

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

HEFLIN, C. J., recuses himself.

ALMON, J., does not sit.


author: SHORES, Justice. BLOODWORTH, Justice

text:
    Paul L. SNYDER, Jr. v. Guy E. FAGET, M.D., et al.
    SC 1190.
    Supreme Court of Alabama.
    Jan. 9, 1976.

      Irvin Grodsky, Mobile, for appellant.
    Robert L. Byrd, Jr., and A. Neil Hudg-ens, Mobile, for appellee Guy E. Faget, M.D.
    Barry Hess, and Thomas P. Doyle, Mobile, for appellees James W. Renkl and George M. Bellman.
   SHORES, Justice.

Plaintiff Paul Snyder was committed to a state mental institution as prescribed by Title 45, § 208 et seq., Code of Alabama 1940, before that summary procedure was declared unconstitutional on its face in Lynch v. Baxley, 386 F.Supp. 378 (M.D.N.D.Ala.1974).

He filed suit against Dr. Guy E. Faget, James W. Renkl, George M. Bellman, and Mildred Z. Snyder, claiming in one count that Dr. Faget, negligently or with reckless indifference to the consequences, willfully or wantonly gave testimony to the Probate Court of Mobile County that the plaintiff was insane, when in fact plaintiff was not insane.

In a second count, he claims damages based upon an alleged conspiracy to deprive him of his liberty and to defraud him of his property by falsely and fraudulently having him committed to a state mental institution.

All defendants, except Mildred Z. Snyder, filed motions to dismiss, which the court granted. Judgment was entered pursuant to Rule 54(b), ARCP, and the plaintiff appealed.

The plaintiff admits that for him to prevail in his assertion that count one (charging the physician with negligence or wanton misconduct) is good, he must distinguish O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974). He fails in that regard. He contends that the letter written by the physician sued in O’Barr left the decision to commit or not to commit to the probate judge. He says that the affidavit signed by Dr. Faget in this case removes any discretion from the probate judge. We disagree. Dr. Faget’s affidavit is as follows:

“I, Dr. Guy E. Faget of the County of Mobile and State of Alabama, being duly sworn according to láw, do certify and declare that I have examined into the state of health and mental condition of Paul Lincoln Snyder of the said County of Mobile and that my opinion is that he is insane.”

Without going into all of the different expressions of opinion in O’Barr, supra, it appears that there was a concensus that:

“. . . the statutes for commitment place the decision making power entirely within the sound discretion of the probate judge. . . . The physician is no more than a witness in the proceeding and he has no authoritative means to foretell that the probate judge will act in accordance with his report and commit the appellant. The judge is free of any obligation to follow the physician’s con-elusions. ...” (292 Ala. at 449, 296 So.2d at 160)

O’Barr also held that commitment proceedings were judicial in nature, and, as such, afforded the physician with absolute immunity as to the negligence count, as well as to the counts sounding in libel and false imprisonment.

We see no distinction between the letter written by Dr. Feist, set out in O’Barr, and the statement signed by Dr. Faget in the instant case. In both instances, they amount to no more than a medical opinion of the patient’s mental condition. Each was made in the course of a judicial proceeding; and as the opinion offered was relevant to those proceedings, they are clothed with privilege and, therefore, cannot serve as a basis for an action for damages based upon negligence.

Some states have held that certifying physicians who act as witnesses in commitment proceedings are civilly liable for negligently certifying that the plaintiff is insane. Others, and Alabama has joined their ranks in O’Barr, take the position that the physician is immune from liability on the ground that the statement is one made in the process of a judicial proceeding. Mezullo v. Maletz, 331 Mass. 233, 118 N.E.2d 356 (1954); Christopher v. Henry, 284 Ky. 127, 143 S.W.2d 1069 (1940); Fisher v. Payne, 93 Fla. 1085, 113 So. 378 (1927); Hurley v. Towne, 155 Me. 433, 156 A.2d 377 (1959); Dabkowski v. Davis, 364 Mich. 429, 111 N.W.2d 68 (1961); Dyer v. Dyer, 178 Tenn. 234, 156 S.W.2d 445 (1941).

Niven v. Boland, 177 Mass. 11, 58 N.E. 282 (1900), was cited in O’Barr, supra. The Supreme Court of Massachusetts cited Niven v. Boland, supra, in Mezullo v. Maletz, supra, for the proposition that:

“ . . . ‘It is more important that the administration of the law in the manner provided should not be obstructed by the fears of physicians that they may render themselves liable to suit than it is that the person certified by them to be insane . . . should have a right of action in case it turns out that the certificate ought not to have been given.’ . . . ” 331 Mass, at 237, 118 N.E.2d at 359)

We appreciate that the rule of privilege discussed in O’Barr was confined to the libel and false imprisonment counts. However, it would be anomalous indeed if one were entitled to the rule of absolute immunity for statements intentionally made, knowing them to be false, and yet be liable for negligently making the same statements.

We hold, therefore, that the trial court correctly granted the physician’s motion to dismiss the negligence count.

We turn now to a consideration of the conspiracy count. The defendants argue that the rule of immunity should extend to this count as well.

The allegation of the complaint is that the “. . . Defendants . . . conspired to deprive the Plaintiff of his liberty and to defraud him of his property by falsely and fraudulently having the Plaintiff committed to a state mental institution without cause.” Despite some commentary which has questioned the existence of the tort of conspiracy, see, e. g., Williamson, Torts—Conspiracy—The Resulting Confusion from the Varied Development of Civil Conspiracy, 23 Ga.Bar J. 548 (1960-61), there is no question that Alabama recognizes civil conspiracy as a substantive tort. In Gaines v. Malone, 244 Ala. 490, 492, 13 So.2d 870, 872 (1943), it was observed that there are . . many sorts of conspiracies which give rise to a civil action . . . ”

Conspiracy has been defined as “. . . the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; or (c) something that is unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means. [Citations Omitted]” Barber v. Stephenson, 260 Ala. 151, 155, 69 So.2d 251, 254 (1953). It is also established that the gist of the action in civil conspiracy is the wrong committed rather than the conspiracy itself. O’Dell v. State, Footnote 1.

Some have argued that civil conspiracy is a valueless addition to tort law. We do not agree. One should have some means of redress when it is shown that persons have combined and conspired to injure him in his person or property, and have done acts which have produced that effect, unless the defendants show some legal justification. See Holmes, J., dissenting in Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896).

In the instant case, defendants seem to concede this general principle but claim that the gravamen of the complaint in this case is that the defendants conspired to give false testimony in a judicial proceeding, which is not actionable.

It is true that, as a general rule, one may not recover damages growing out of perjured testimony offered in a judicial proceeding. At 15A C.J.S. Conspiracy § 16, the following appears :

“. . . Since, as a general rule, in the absence of statute, no action lies to
recover damages caused by perjury, false swearing, subornation of perjury, or an attempt to suborn ... an action for damages for conspiracy to commit perjury and for the giving of false testimony or for subornation or attempted subornation of perjury, cannot ordinarily be maintained. It has been held, however, that where the giving of false testimony is but a part of a plan or scheme to defraud a person, an action for the conspiracy will lie. . . .
“. . . Where parties, in pursuance of a conspiracy or combination for that purpose, fraudulently make use of legal proceedings to injure another, an action lies against them, at the suit of the person injured, to recover damages sustained, and the fact that a combination for fraud has been brought to a successful end by false testimony produced on the trial does not make an action for conspiracy obnoxious to the rule that there can be no civil action for perjury or subornation of perjury. . . . ”

The leading case on this particular point appears to be Morgan v. Graham, 228 F.2d 625, 54 A.L.R.2d 1290 (10 Cir. 1956). In that case, the president of an insurance company denied, under oath in a judicial proceeding, that there was a liability policy covering the insured. A creditor of the insured brought suit against the president of the insurance company claiming damages in that the creditor had been injured as a result of the statements of the defendant made as a part of a scheme to defraud and deceive the creditor. There, the court said:

“One of the grounds on which appellant challenges the judgment is that it is an action for damages based on perjury. It is our view that this contention is not well founded. It is, of course, fundamental that in the absence of a statute to the contrary an unsuccessful litigant who has lost his case because of perjured testimony may not maintain a civil action for damages against the person who commits the perjury. It is also true that the acts asserted in the complaint relied upon for recovery, if established, constitute perjury, but it does not follow therefrom that a civil action in tort for damages may not be predicated upon such testimony if all elements necessary to maintain such an action are present. ...” (228 F.2d at 627, 54 A.L.R.2d at 1295)

Frist v. Gallant, 240 F.Supp. 827 (W.D.S.C.1965), involved a suit by a wife against her husband and his father charging that they conspired to give, and did give, false and fraudulent testimony in a prior suit for separate maintenance brought by her against her husband, with a purposeful and preconceived intent to defraud the plaintiff of the just amount of alimony to which she was entitled. That court said:

“ . . . Under the circumstances here it would appear that the public policy considerations, which form the basis for denying causes of action based upon perjured testimony, are overshadowed by the public interest behind the right to civil redress of this plaintiff, who allegedly has been wronged by the successful execution of a conspiracy, even though the success of such alleged scheme was based primarily upon the use of false testimony.” (240 F.Supp. at 829)

Likewise, in Robinson v. Missouri Pacific Transp. Co., 85 F.Supp. 235 (W.D.Ark.1949), a conspiracy was alleged to wrongfully deprive the plaintiff of the right to earn a living. There, the court said that, as a general rule, no cause of action exists for subornation of perjury and stated the reason for the rule:

“. . .For" reasons of public policy such a cause of action has generally been denied in order to protect the proper functioning of the courts by enabling witnesses to make full and complete disclosures in their testimony without the restraint or fear of subsequent suits for damages, and therefore, an action for damages for conspiracy to commit perjury cannot ordinarily be maintained.
“However, the complaints in the instant cases may be held to state a cause of action without running afoul of the generally accepted prohibition against civil actions for perjury or conspiracy to commit perjury or to suborn perjury. The conspiracy alleged was to deprive wrongfully the plaintiffs of their rights to earn a living for themselves and their families according to their desires as to choice and availability of employment. Any fraudulent invasion of that right that causes damage is a tort and the damaged person has a cause of action. According to the allegations of the complaints this conspiracy was carried out by a series of overt acts, and the procuring and the giving of perjured testimony at the hearing prior to final discharge was an incident to the alleged fraud of defendant against the plaintiffs. Thus it is at least possible that the allegations may be deemed sufficient to charge an actionable invasion of a right of the plaintiffs through the violation of a duty of the defendants owing to the plaintiffs, the violation occurring by reason of the overt acts of defendants to bring about the wrongful discharge of the plaintiffs in the furtherance of the conspiracy to that effect. . . .” (85 F.Supp. at 238)

Also, in Oldham v. McRoberts, 37 Misc.2d 979, 237 N.Y.S.2d 26, 31 (1962), a New York Court recognized the existence of a civil action for fraud and deceit based on conspiracy “. . . where the fraud is brought to a successful end by false testimony . . .” That court held that a conspiracy had been alleged with the perjury only a step to accomplish it.

We are mindful of the policy reasons for the general rule, which denies a right of action based upon testimony offered in a judicial proceeding, and are in agreement with that policy. However, the rule of immunity cannot be absolute.

Suppose, for example, that two or more persons deliberately and consciously agreed with each other to fraudulently deprive a named beneficiary of the proceeds of a testator’s estate. To succeed in this effort, it is necessary to invalidate the will of the testator. Once admitted to probate, the only way a will may be invalidated is through a judicial proceeding. If the contestants are successful in their efforts to defeat the will by falsely testifying that the testator lacked testamentary capacity, for example, they should not be permitted to claim judicial privilege. Their perjury was but a step in the scheme to deprive the beneficiary of the proceeds of the estate. The fact that the only vehicle for carrying out the scheme was through a judicial proceeding should not prevent the beneficiary from recovering from them the resulting damage, assuming he can prove all of the elements necessary to an action of conspiracy.

In the instant case, the allegations are that the defendants conspired to deprive the plaintiff of his liberty and property by falsely and fraudulently having him committed to a mental institution. We do not think the general policy reason behind the rule extending immunity to suits, based upon testimony offered in a judicial proceeding, is defeated by allowing the plaintiff an opportunity to attempt to prove what he has alleged — a conspiracy by the defendants to fraudulently deprive him of his liberty and property.

It is not unlawful to express an opinion as to one’s sanity or insanity under proper circumstances. It is likewise not unlawful to commit one to a mental institution where proper procedures are followed. But, it is improper to fraudulently conspire to deprive a person of his liberty or property; and such conduct is civilly actionable where the plaintiff suffers damages as a result thereof.

Obviously, the plaintiff has the burden of proof, and must establish every element of the tort alleged. In Jolowicz & Lewis, Winfield on Torts, Conspiracy 557, 559, 560 (8th ed. 1967), the necessary elements are summarized as follows:

“(a) Purpose. The most important feature of a tortious conspiracy where unlawful means are not used is that the object or purpose of the combination must be to cause damage to the plaintiff. It is not a matter of ‘intention’ as that word is normally used in the law, for intention signifies not what a person is aiming at but what may reasonably be expected to flow from what he does, while for conspiracy the test is ‘what is in truth the object in the minds of the combiners when they acted as they did.’ Malice in the sense of malevolence, spite or ill-will is not an essential for liability; what is required is that the combiners should have acted in order that (not so that) the plaintiff should suffer damage. If they did not act in order that the plaintiff should suffer damage they are not liable, however selfish their attitude and however inevitable the plaintiff’s damage may have been.
“(b) Combination. There must, of course, be concerted action between two or more persons .
“(c) Overt act causing damage. . an overt act causing damage is an essential of liability in tort.. . . .”

This case is here on the pleadings. The defendants have been granted their motion to dismiss. The only question before us is whether the complaint states a claim upon which relief can be granted. It does. Obviously, the plaintiff will have a considerable burden, perhaps an insurmountable one, in proving the elements of the tort alleged. He cannot recover on proof that he was, through negligence or ill will, committed to a mental institution. He must prove all of the elements set out above.

Regardless of how unlikely it appears that the plaintiff will be successful in his efforts to make out a case on proof, under our procedure he is entitled to the attempt, where his complaint states some legal theory which will support a claim for relief. We believe that the conspiracy claim in this case meets that test.

The judgment appealed from is, therefore, reversed and the cause is hereby remanded.

Reversed and remanded.

HEFLIN, C. J„ and FAULKNER, JONES and EMBRY, JJ., concur.

MERRILL, BLOODWORTH and MADDOX, JJ., dissent.

BLOODWORTH, Justice

(dissenting).

I must dissent since I concurred in that portion of Justice McCall’s opinion for this Court in O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974) in which he wrote that one who testifies in a judicial proceeding enjoys absolute privilege. I continue to adhere to that view — which is the general rule in this country. See authorities at 292 Ala. 446, 296 So.2d 157.

It is my judgment that the policy of the law should continue to be that no one who testifies in a judicial proceeding shall be subject to civil suit for damages on account of testimony he gave under any theory of law. To hold otherwise, as the majority does in allowing suit for conspiracy, permits the doing indirectly of that which could not be done directly and thus subverts the policy of the law — which is that all should be privileged to testify without the threat of civil action on account thereof.

MERRILL and MADDOX, JJ., concur.

      . Even before the adoption of the Alabama Rules of Civil Procedure, pleading requirements for stating a cause of action involving conspiracy were not stringent:
      “A great quantum of detail need not be required to be alleged as to the formation of the conspiracy because of the clandestine nature of the scheme or undertaking engaged in. The existence of the conspiracy must often be inferentially and circumstantially derived from the character of the acts done, the relation of the parties, and other facts and circumstances suggestive of concerted action. [Citations Omitted]” O’Dell v. State, 270 Ala. 236, 240, 117 So.2d 164, 168 (1959).


author: JONES, Justice.

text:
    In re Louise Bynum TURNER v. William D. BYNUM. Ex parte Louise Bynum Turner.
    SC 1609.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    Jim Goodwyn, Gadsden, for petitioner.
   JONES, Justice.

Petition of Louise Bynum Turner for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Turner v. Bynum, 56 Ala.App. 489, 323 So.2d 377.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.


author: HEFLIN, Chief Justice.

text:
    STATE of Alabama v. COLLEY CORPORATION et al.
    SC 1322.
    Supreme Court of Alabama.
    Jan. 15, 1976.

      E. C. Orme, Special Asst. Atty. Gen., Troy, for appellant.
    Oliver W. Brantley, Troy, for appellees.
   HEFLIN, Chief Justice.

The State of Alabama brings this appeal from a final judgment of $16,000 in favor of appellee in a proceeding to condemn certain land owned by appellees for use as part of a highway right of way. The judgment is affirmed.

In the trial of this cause in the Circuit Court of Pike County, it was stipulated by the parties that the only issue to be tried and determined by the court was the amount of compensation to be paid to ap-pellees.

The appellees, Colley Corporation and other named individuals, owned a 9.07 acre tract of property which fronted on U.S. Highway 231 near the city of Troy, Alabama. The State sought to condemn 0.19 acres of this tract for use as a deceleration lane on Highway 231. This highway was frequently referred to as the “by-pass” or the “Troy by-pass.”

An expert witness for the State presented his opinion that the value of the 9.07 acre tract prior to the taking was $118,000.00 and that it was worth $115,500.00 after the taking, resulting in damages to defendant-appellees of $2,500.-00. Upon cross examination, appellees’ attorney asked this witness if he had considered sales of other properties in arriving at his appraisal of damages due appellees. Among several sales which the expert mentioned was “a sale from Shaw to Dunn * * * that consisted of 18.6 acres of land at the intersection of the by-pass and Alabama No. 87 * * *.” Following further questioning on the sales mentioned, the expert witness was asked, “Are you familiar with the sale on June 28, 1974, from Woodard, A. P. Woodard and Bobby Woodard to McDonald Corporation — 0.46 of an acre on 231 By-pass just east of the Dunn property that you are speaking of?” This question was objected to on the ground that this sale did not involve property comparable to that being condemned. The same objection was raised to introduction of evidence regarding a second sale to McDonald Corporation of a .58 acre tract adjacent to the McArthur property. The overruling of these objections by the trial court constitutes one of the major contentions of the State’s assignments of error. The State on appeal contends that the trial court erred in admitting into evidence the two sales to McDonald Corporation on the ground that neither involved property comparable to the lands taken in the proceeding. Further it contends that the verdict returned was excessive and the result of bias, passion and prejudice.

In a land condemnation proceeding evidence of the sale price of another piece of land is admissible in determining the value of the condemned land. The criteria of admissibility are: (1) the sale was voluntary ; (2) conditions surrounding the two tracts are similar; and (3) the sale was neither too remote in point of time nor of such a character as to indicate that it did not represent the true value of the property. State v. Wise Development Corporation, 293 Ala. 671, 673, 309 So.2d 448, 450 (1975); Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 17, 110 So.2d 308, 315 (1959); Knabe v. State, 285 Ala. 321, 231 So.2d 887 (1970). It is incumbent on the party offering proof o-f other sales to show these facts. State v. Boyd, 271 Ala. 584, 587, 126 So.2d 225, 228 (1960).

There is no general rule regarding the similarity that must exist between two pieces of land before the sale price of one can be offered as evidence of the other’s value. See 27 Am.Jur.2d Eminent Domain § 429. In this state the rule is that the question of similarity is left primarily to the discretion of the trial judge. State v. Busby, 293 Ala. 510, 306 So.2d 260 (1975); Popwell v. Shelby County, 272 Ala. 287, 130 So.2d 170 (1960); Southern Electric Generating Co. v. Leibacher, supra.

The State contends that the McDonald’s sales are not of similar character or condition to the property subject to the proceeding in that the commercial development of . the two locations is different. The State argues that the McDonald’s property is near the Troy State University campus in an area characterized by “fast food” restaurants which are frequented by students from the University. The Colley property, on the other hand, is surrounded by automobile and heavy equipment dealerships. These facts were before the trial court, as was the fact that the State’s expert witness considered a sale within a block of the McDonald’s property in his appraisal of the condemned property. The two tracts of land were shown to be on the same by-pass highway, within 2.8 miles of each other. It was also shown that there was at least one restaurant and a motel within the vicinity of the Colley property. Based on this evidence this court finds no abuse of the trial court’s discretion in its decision to allow testimony regarding ‘the McDonald sales into evidence.

The State also argues that the properties were dissimilar because- the McDonald’s sales involved parcels much smaller than the landowners’ 9.07 acre tract. This court has addressed this same argument in the cases of State v. Wise Development Corporation, supra, and State v. Busby, 293 Ala. 510, 306 So.2d 260 (1975). In both cases, the court overruled the State’s argument on the ground that “the tracts were clearly ‘comparable’ in size to the tracts actually taken by the State and it was within the trial court’s discretion to admit evidence of such sales on the question of the value of the part actually taken.” 293 Ala. at 675, 309 So.2d at 451. In the present case, this court cannot say that the trial judge abused his discretion in determining that the sales offered into evidence were sufficiently comparable in size to the portion of appellees’ property actually taken.

The State contends in brief that the properties were dissimilar because the McDonald’s property was located in a subdivision and involved platted land. This court has noted that courts of some other states have held that sales of platted land cannot be used to determine the value of unplatted land. See Southern Electric Generating Co. v. Leibacher, supra. The court has never held that the fact that one tract is platted and the other is not is sufficient in and of itself to require a finding of dissimilarity. This fact is just one to be considered in the trial court’s determination. Southern Electric Generating Co. v. Leibacher, supra. This court further finds that the fact that one tract has been subdivided while the other has not is again only a consideration in the court’s determination of similarity. Cf. State v. McDaniel, 285 Ala. 310, 231 So.2d 878 (1970) (where the court allowed into evidence appraisals based on valuation for business uses of property zoned residential) ; County Board of Education of Jefferson County v. McCarter, 281 Ala. 679, 207 So.2d 664 (1968) (where the court allowed appraisal of property based on its value as subdivision where the property at the time of the condemnation proceeding had not been platted for lots).

As its final assignment of error, the State argues that the trial court erred in overruling the motion for new trial because the jury verdict of $16,000 was so excessive as to indicate that it was the result of bias, passion and prejudice. Testimony offered by the expert witnesses as to the damage suffered by the property owners from the taking varied from a low estimate of $2,500 to a high estimate of $30,000, thus making the jury’s verdict within the range of estimates in evidence. The evidence reflected that the sales price for the McDonald saleá was $46,500 each. The duty of the trier of fact in condemnation cases is to reconcile the various opinions as best it can by analyzing the evidence in light of its common knowledge. Rountree Farm Co. v. Morgan County, 249 Ala. 472, 476, 31 So.2d 346, 350 (1947). The jury’s conclusion is to be given great weight. State v. Rigas, 282 Ala. 541, 213 So.2d 386 (1968). Further this court must affirm the trial court’s action in overruling a motion for new trial unless the verdict is unsupported by competent evidence or is against the preponderance of the evidence, or is palpably wrong or manifestly unjust. State v. Wise Development Corporation, supra. Finding none of these, this court cannot say the trial court erred in overruling the motion for a new trial. This court affirms.

Affirmed.

BLOODWORTH, FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    Bill THOMPSON v. Veda Dawn THOMPSON.
    Civ. 484.
    Court of Civil Appeals of Alabama.
    Nov. 6, 1975.
    Rehearing Denied Dec. 10, 1975.
    Love, Love & Lawrence, Talladega, for appellant.
    McDuffie & Holcombe, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is a child custody case. Appellant, the father of William Mark Thompson, age six, appeals from an order refusing to remove the child from the custody of his mother, the appellee. The order of the trial court is affirmed.

Appellant and appellee were married on October 7, 1968, and divorced by decree of the Circuit Court of Tuscaloosa County on January 26, 1970. Custody of Mark, as the boy is known, the only child of the marriage, was awarded to appellee with visitation privileges reserved to appellant, and child support was set at $40 per month.

Appellant filed a previous petition to modify the child custody arrangement on April 19, 1972, alleging interference with his visitation privileges. However, at the time the present petition for modification was filed, the only substantial change ordered by the court had been an increase in child support to $100 monthly.

On August 17, 1973 appellant filed the petition before us now in Tuscaloosa County Circuit Court, alleging that a substantial change in circumstances had occurred. The petition sought to have the permanent custody of Mark awarded to appellant, and also asked for an order restraining appellee from taking Mark out of Alabama during the pendency of the hearing. The requested restraining order was issued on August 17, 1973, and hearing set for November 14, 1973.

The hearing commenced on that date, but was not completed then. For various reasons it was postponed several times. Numerous appearances by counsel were made and several motions filed during this interval. It is not necessary to set forth a statement of all those proceedings.

On October 30, 1974 the concluding session of the hearing on this petition commenced. The hearing lasted for four days, and the trial court heard lengthy testimony ore tenus. The transcript of this hearing is over four hundred pages in length, and is supplemented by exhibits and the text of several depositions.

On November 9, 1974 the trial court entered a decree expanding appellant’s visitation rights, lowering child support to $75 per month, but denying the requested modification in custody. It is this latter portion of the judgment which is appealed.

The evidence discloses that, at the time of the hearing on the matter appealed from, appellant, a lawyer, had remarried and was living with his second wife in Talladega. Appellee has remarried twice, the second marriage resulting in a divorce, and currently lives with Mark and her third husband, a drapery salesman, in Orlando, Florida. The two parties and their present spouses all have full-time jobs. Mark is enrolled in a pre-school kindergarten program where he spends half of each weekday, and in a nursery school where he spends the remainder of the day while his mother is at her job.

It is undisputed that appellee and her husband can provide for Mark financially, especially when the child support payments are taken into account. The home in Orlando has several bedrooms, den, two bathrooms, and other rooms. Appellee’s husband does use some of the space in the house, however, to store supplies and machinery used in his business. Mark has a bicycle, wagon, swing set and other toys.

The financial ability of appellant is comparable, if not better. He has a comfortable home, a growing practice, and has set up a testamentary trust fund for Mark. He pays for Mark to fly up from Orlando by airplane on visitations, and takes Mark horseback riding.

The point of contention raised by the petition is that appellee is unsuited psychologically and morally to have custody of the boy. Evidence presented by appellant tended to portray appellee as engaging in sexual misconduct; administering punishment to Mark irregularly and sadistically; failing to provide Mark with medical care when needed; keeping an untidy apartment for the boy to live in; inadequately feeding, clothing, and bathing him; unable to hold a job; untruthful; argumentative with landlords, tradespeople, and proprietors of nursery schools; callous toward Mark and appellant; and irreligious.

Appellant also produced the deposition of Dr. Robert Estock, a child-psychiatrist who had examined Mark. Dr. Estock reported that Mark had an emotional disturbance of less than psychotic proportions, probably caused by the instability in his life due to the breakup of his parents’ marriage and the later custody and visitation situation. Dr. Estock also said that Mark had a positive relationship with his father, that it would be stressful for Mark to be removed to a place where his father could not visit him, but that there was insufficient observation of Mark’s relationship with appellee to justify an opinion that Mark should be placed in appellant’s custody.

Additionally, appellant brought forth much testimony from character witnesses to the effect that he and his present wiffe are capable of raising Mark successfully and enjoy an excellent reputation in Tal-ladega.

Appellee and her husband disputed through oral testimony and documentary exhibits the implications raised by appellant’s evidence. They presented medical records of Dr. Peter Trice, including a recent record of medical examination showing Mark to be in good health; appellee testified that Mark’s pre-school kindergarten was an experimental enriched program very beneficial to its pupils; the charges of sexual misconduct were denied. Further, on cross-examination the witness whom appellant had called to testify that appellee’s apartment was unclean admitted to having some hostility toward appellee because of a landlord-tenant dispute, and that the inspection of the premises had not been made until appellee had moved out and a break-in by unknown persons had occurred.

On the question of physical punishment, appellee denied using arbitrary or excessive corporal punishment. Appellee’s husband testified that Mark was disciplined by moderate spanking with a belt, but that this occurred less often than twice a month, and only when Mark jied, was insubordinate, or was cruel toward animals.

Appellee’s husband also testified that, although the family did not attend church or send Mark to Sunday School, the members of the family did believe in a supreme being, and that Mark received spiritual training at nursery school and in the home.

Appellee also testified that appellant was unfit to raise Mark due to emotional immaturity. She testified that he frequently threatened physical violence against her, and had committed acts of violence on her in the past. She also related an incident in which appellant had lost his composure in public while visiting her after the divorce. There are also some photographic exhibits in the record which appellee claims suggest that appellant has engaged in sexual misconduct.

It is unnecessary to go into any of this evidence in detail. The recitation above is sufficient to show the course the hearing took, and the types of proof the respective parties were relying on.

Appellant’s arguments on appeal áre apparently intended to support the conclusion that the trial court, in denying the modification sought, improperly invoked the presumption which favors awarding the custody of a child of tender years to its natural mother.

First, appellant’s assignment of error eight asserts that the “tender years” presumption violates his rights to equal protection under the law. We are not persuaded to accept this proposition.

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), a case not mentioned in appellant’s brief, is the leading authority in this area of constitutional law. In that case the United States Supreme Court invalidated an Illinois statute which omitted unwed fathers from the definition of “parent” and thereby presumed them unfit to raise children. Despite a seemingly contrary result, Stanley provides grounds for upholding the Alabama presumption.

The statutory presumption in Stanley was found to be arbitrary. By contrast, the tender years presumption applied by Alabama courts is rational. It has evolved over many decades and has been refined by the actual experience of many able judges and attorneys. It is aimed at the legitimate goal of providing the most favorable environment for young children. The presumption was fashioned in the context of observed reality, not abstract contemplation.

The presumption is not absolute, it is rebuttable. Turner v. Turner, 46 Ala.App. 350, 242 So.2d 397. If proof is made that the natural mother is not furthering the best interests of the child, then the presumption is vitiated. Calhoun v. Calhoun, 278 Ala. 610, 179 So.2d 737.

Finally, the presumption in no way works to exclude the father from the custody proceedings or otherwise impair his procedural rights. To the contrary, the presumption comes into application only when the father is before the court seeking custody of the child. The impact of the presumption is not to deny him standing to present his case, but merely to allocate to him the burden of showing that the mother is not the best custodian. Turner v. Turner, supra.

The statute held unconstitutional in Stanley v. Illinois, supra, was infirm in every one of these aspects. The Alabama tender years presumption furthers the very constitutional guarantees violated in Illinois.

Appellant’s second main contention is that the tender years presumption is not applicable in this case because the child is a boy. We find ample authority that the presumption includes children of both sexes. Messer v. Messer, 280 Ala. 395, 194 So.2d 552. As has been said before, the presumption is rebuttable. Evidence in rebuttal must be dealt with on a case-by-case basis. Featherston v. Featherston, 271 Ala. 238, 123 So.2d 120. The sex of a child is material to the extent that it is shown that the participar child will fare better in the custody of a parent of one sex or the other. The trier of fact must then determine the weight to be given such evidence.

Finally, appellant argues that it was error for the trial court to leave the child in the custody of the mother where it was undisputed that all the factors were resolved in favor of the father. While this argument may be a correct statement of the general law, we feel it is not suited to the facts in the record before us. The evidence in support of appellant was lengthy, but it was not conclusive. There is evidence below, less discursive, but still present in the record, to the effect that ap-pellee-mother was a fit parent. The rule is well established that the trier of fact has the responsibility of deciding which testimony heard ore tenus is correct and which inferences should be drawn therefrom. Air Movers of America, Inc. v. State Nat. Bank, 293 Ala. 312, 302 So.2d 517. We do not feel the mere fact that more witnesses testified for one party than for the other requires us to depart from this rule.

At the close of the hearing on this cause, the trial court announced its findings, stating in part:

“It is the judgment of the Court that the petitioner, Mr. Thompson, has not made out a case under Alabama law, those cited cases included, that would justify a transfer of custody of the child from the mother to the petitioner. I believe that even if all the facts that have been presented in these four days, including not just the last three, but the original — all of the facts presented in these four days, had that been known and presented to the Court at the time of the original divorce, I am convinced that custody of the child then — as now, should remain with the mother. That does not say that her conduct was completely exemplary or circumspect, and certainly it isn’t saying that Mr. Thompson’s conduct is bad or was bad. ;; *

Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. den. 294 Ala. 757, 316 So.2d 214, explicates the time-honored analysis which must be applied in appellate review of the trial court’s decision:

“First, it is well established that where testimony is taken ore tenus, the finding by the trial court has the weight of a. jury verdict and such finding will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743.
“Second, divorce decree providing for custody of a minor child will not be modified unless changed conditions are shown which justify such modification. Snead v. Snead, 279 Ala. 344, 185 So.2d 135.
“Third, in proceeding to modify a divorce decree respecting custody, each case must rest on its own facts and circumstances with the principle always in mind that the welfare of the child is of paramount importance. Featherston v. Featherston, 271 Ala. 238, 123 So.2d 120.
“And, finally, it is held in this state that a party seeking modification of a child custody provision of a divorce decree must allege and show some change of conditions or other substantial reason for modification. Perez v. Hester, 272 Ala. 564, 133 So.2d 199.”

Applying this analysis, we see no unsound application of law or palpable error. The findings of the trial court based on testimony ore tenus are entitled to a presumption of correctness that we shall not overturn in this case. We therefore conclude that the trial court committed no error on the grounds assigned by appellant.

In view of our findings that no error has occurred, we affirm.

Affirmed.

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

ON REHEARING

BRADLEY, Judge.

Appellant, in his application for rehearing, presents no new matter which was not carefully considered in the original opinion.

However, we must take this opportunity to recognize an omission in our quotation of the case correctly cited as Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. 294 Ala. 757, 316 So.2d 214. Our quotation should have included:

“Fourth, where the children are of tender years, the mother is generally considered better fitted to exercise custody unless she is unfit for the trust. Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151.”

The omission was unintentional and does not alter our holding in any detail. We include the omitted portion here to affirm our intention to quote the entire passage in our original opinion.

In view of the finding that all matters raised by the petition for rehearing had been properly considered previously, we deny the petition.

Opinion extended.

Application for rehearing overruled.

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


text:
    In re Bill THOMPSON v. Veda Dawn THOMPSON. Ex parte Bill Thompson.
    SC 1621.
    Supreme Court of Alabama.
    Jan. 15, 1976.
    Love, Love, Lawrence & Mitchell, Tal-ladega, for petitioner.
    None opposed.
   FAULKNER, Justice.

Petition of Bill Thompson for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Thompson v. Thompson, 57 Ala.App. -, 326 So.2d 124.

Writ denied.

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


author: HOLMES, Judge.

text:
    Jack GLOVER and Marilyn Glover, Jointly and Individually v MERCHANTS ADJUSTMENT SERVICE.
    Civ. 676.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1976.
    Fred F. Smith, Jr., Fairhope, for appellants.
   HOLMES, Judge.

This is an appeal by the defendants, Jack and Marilyn Glover, from a summary judgment entered for the plaintiff, Merchants Adjustment Service.

The only assignment of error is that the trial court erred to reversal in granting the summary judgment.

The record reveals the following pertinent information. The plaintiff, as assignee of two hospitals, one clinic and a veterinary hospital, brought suit against defendants. The suit was for money due by account and attached to the complaint was a statement of account which was itemized and verified. To the complaint the defendants filed a general denial alleging that they were not indebted to Merchants Adjustment Service. This answer was signed by the Glovers and was sworn to.

Thereafter, the plaintiff, Merchants Adjustment Service, moved for summary judgment. This motion was accompanied by detailed affidavits from appropriate officials of the clinic, hospitals and veterinary hospital. All the affidavits were to the effect that the plaintiffs were indebted to the various establishments. The Glovers then filed with the trial court an “ANSWER TO THE MOTION FOR JUDGMENT.” The answer reads as follows:

“Comes now JACK GLOVER and MARILYN GLOVER and in answer to the affidavit filed in this cause by the respective parties say that they and each of them are not liable to MERCHANTS ADJUSTMENT SERVICE nor to any of the respective assignors for any services or goods rendered for them or delivered to them and they further state that as to these respective accounts of Bay Medical Clinic, Doctors Hospital of Mobile, Eastern Shore Animal Clinic and Thomas Hospital, that they have not received goods or services from them or that they have paid the account in full for such goods and services rendered to them.
“JACK GLOVER and MARILYN GLOVER
“BY; /s/ Fred F. Smith, Jr. Fred F. Smith, Jr., their Attorney P. 0. Box 487 Fairhope, A1 36532”

The above was not sworn to.

The next permanent action taken by the trial court was the granting of the motion for summary judgment and the entering of a judgment for the plaintiff. It is this action that is appealed from. Subsequent actions, as revealed by the record, are not relevant to this appeal.

It is clear from the above that the original a'nswer of the Glovers and their un-sworn answer to the motion for summary judgment are mere general denials to the complaint and affidavits of plaintiffs.

Rule 56(e) of ARCP provides in pertinent part as follows:

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

A party adverse to a summary judgment motion cannot rest upon his pleadings once sworn affidavits have been introduced. Adams v. U. S., 302 F.Supp. 1147 (D.C.Pa.1969). In this instance the defendants have attempted to so rest. The burden in this instance was cast upon the defendants by the motion for summary judgment and its accompanying affidavits to present, by counter affidavits of their own, facts controverting those of plaintiff. Their unsworn general denial of plaintiff’s motion and supporting affidavits do not, in this instance, meet this burden.

We therefore find the appropriate materials on file with the trial court show that there is no genuine issue as to any material fact and the trial court did not err in granting the motion for summary judgment.

The case is due to be affirmed.

Affirmed.

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


author: CATES, Presiding Judge.

text:
    Ples Henry McDAVID v. STATE.
    6 Div. 39.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Thomas Nicholson, Jasper, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

A conviction of second degree burglary with a sentence of seven years occasioned this appeal.

I
“John Sides testified that in the early morning hours of November 2, 1974, he was at home but over an intercome system connected to his store he heard some commotion in the store. He and his wife got up and observed two black men in the store. Mr. Sides got his gun and his wife called the police.
“Mr. Sides then went to the store and as the two men ran out of the store he told them to stop. The two men did not stop but continued to run and Mr. Sides shot them in the feet and legs.
“The two men then ran toward the back of the store and after the police arrived they began to search for them. They later found appellant just beyond the store. Mr. Sides asked him where his money was and appellant said he did not take the money that he was getting cigarettes. Mr. Sides also testified that he went and got a quilt for appellant to cover him with.” -State’s brief, p. 1

II

We consider there is no problem under pre-Miranda or Miranda predicates arising from the reception of McDavid’s inculpatory statement, Ison v. State, 281 Ala. 189, 200 So.2d 511. We consider the statement was not elicited by custodial interrogation.

III

Appellant in brief argues that there was reversible error in that the defendant came into court handcuffed. However, no ruling was made by the trial judge. Objection was made after the fact. No motion for mistrial was made as was done in Racine v. State, 51 Ala.App. 484, 286 So.2d 890. The record contains no transcript of any testimony adduced in support of the motion for new trial. No question is presented for appellate review.

IV

No demand for speedy trial appears to have been made until the day of trial. No proof was tendered to show prejudice. Apparently defendant was in jail, unable to raise $1,000 bail, from November 11, 1974, until trial, which took place May 5, 1975.

At present, Walker County is not legally required to summon grand juries more often than four times a year. Code 1940, T. 30, § 72. The record here only shows that the defendant was not indicted until March 21, 1975. Whether he was passed over by an intervening grand jury does not appear. We perceive no application of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101.

V

We have considered the entire record under Code 1940, T. 15, § 389, including the following:

(a) The clerk’s certificate; [T. 7, § 767]
(b) The court reporter’s certificate;
(c) The statement of the organization of the court; (Sup.Ct.R. 52);
(d) The indictment (caption, charge, conclusions, and required endorsements) ;
(e) Judgment entry (arraignment, presence of counsel, twelve jurors, em-panelling and swearing of jury, verdict, adjudication of guilt, allocutus, sentence, motion for new trial and notice of appeal);
(f) Each ruling of the trial judge adverse to the appellant.

From this examination we conclude that the judgment is to be

Affirmed.

All the Judges concur.

      . Rule A, 49 Ala.App. XXI, was not complied with; see also 28(a) (7) ARAP.


text:
    James Otis BOYD, alias  v. STATE.
    3 Div. 360.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Frederick T. Enslen, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.

      . In circuit court the cause was captioned.
      “The State * * *
      vs
      Pepperhead, alias James Otis Boyd.” This comports with the indictment which charged the appellant as “Pepperhead, alias * *

   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Jury and verdict of guilt on plea of not guilty to indictment for robbery. Punishment fixed at ten years imprisonment.

This case was remanded to the Circuit Court of Butler County for consideration as to whether appellant-defendant should be accorded Youthful Offender treatment with instructions to the Circuit Court to advise this Court of its decision. The remand was on November 14, 1975.

The Circuit Court, pursuant to such remand, filed with this Court an answer from which we quote as follows:

“The Court finds that on May 21, 1974, the defendant James O. Boyd was formally arraigned in this Court and entered his plea of not guilty, that at said time the defendant specifically reserved the right to file a youthful offender petition (transcript page 3).
“The Court further finds that no petition was ever filed by the defendant requesting that he be accorded youthful offender treatment, wherefore the Court proceeded to' try the defendant as an adult. Upon consideration of the same.
“IT IS THEREFORE ORDERED BY THE COURT that said defendant should not be accorded youthful offender treatment.”

It thus appears that appellant never pursued his right to be tried as a youthful offender of which he was informed. T. 15, §§ 266(l)-266(6), inch, Supplement, Michie’s Recompiled Code 1958, Act 335, Third Special Session, 1971.

We fail to see that defendant was prejudiced by the Court’s action in putting him to trial as an adult.

MOTION

Appellant filed with the trial court his motion for an examination of the victim-witness to determine whether she was of sound mind and competent to testify. The victim was ninety-seven years of age. This motion was denied.

Section 4 of the motion reads as follows :

“That under the facts alleged herein, the defendant respectfully requests this Court to order the victim, Sally Dortch, to undergo examination by a competent physician to determine her competency to testify and that the results of such examination be given to the Court and to the defendant’s attorneys.”

T. 7, §§ 439 and 440, Code 1940, read:

“Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses.”
“The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness, or infancy.”

We know of no law which mandates the trial court to order the victim to undergo an examination by a competent physician to determine her mental capacity to testify and to order the results of the examination to be reported to the Court.

The motion does not comport with § 440, supra, which places the duty on the Court to make examination.

The Court was free of error in overruling the motion. Orton v. Gay, 285 Ala. 270, 231 So.2d 305(18).

The record does not disclose that the victim had undergone treatment for mental disorder as in Henderson v. United States, 6 Cir., 218 F.2d 14. Henderson states that “when a mature person of normal appearance and demeanor is offered as a witness, he is presumed to be a competent witness and incompetency must be shown by [a] party objecting to him.”

The trial court saw the witness on the stand and had the opportunity of passing judgment on her senility vel non and her mental capacity to testify. So far as we ascertain there was no insistence by defendant during such appearance that the witness was incompetent to testify, nor was any ruling of the trial court invoked on such issue. For aught appearing she was competent and her testimony, conflicting at times, was admissible. The conflicts were for the jury to resolve.

The movant did not offer any evidence that the witness was afflicted with mental incompetency, but relied on an unverified motion to invoke such examination.

The trial court, during the trial, must have been impressed that the witness was normal and free of disqualifying senility. The court did not challenge such normality, neither did defendant during the trial.

ON THE MERITS

Appellant urges this Court to consider the sufficiency of the evidence.

There was no ruling of the trial court on such sufficiency. Defendant did not make a motion to exclude, did not submit a request for affirmative instructions, nor move for a directed verdict. Neither did he make a motion for a new trial. Handley v. State, 214 Ala. 172, 106 So. 692; Shepard v. State, 20 Ala.App. 627, 104 So. 674; Harrison v. State, 21 Ala.App. 260, 107 So. 225.

We hold that the judgment in this cause should be and is affirmed.

The foregoing opinion was prepared by Hon. Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.

      . This is a companion ease to that of Paige v. State, 56 Ala.App. 121, 319 So.2d 740.


text:
    James Lewis McKENZIE v. STATE.
    7 Div. 391.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      Joel C. Watson, Alabaster, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis III, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This is an appeal from a conviction for selling marihuana contrary to the Alabama Uniform Controlled Substance Act [No. 1407, September 16, 1971.] The trial judge sentenced Lewis to serve two years at hard labor in the county jail. This is a permissible alternative place of serving sentence in felony cases, under Code 1940, T. 15, § 325, if the sentence is not over two years. Crook v. State, 44 Ala.App. 83, 203 So.2d 138.

I

The indictment used “marijuana” instead of “marihuana.” The latter term appears throughout Act 1407, supra.

Before September 16, 1971, the Alabama law described marijuana in all inclusive terms which embraced all botanical varieties, synthetic derivatives and the effective hallucinogenic ingredient, tetrahydrocan-nabinol. This classification defined mar-juana chemically and botanically. Code 1940, T. 22, § 256, as amended.

The 1971 Act changed the definition. First, it used the spelling “marihuana.” Whether this was intentional we do not know.

More importantly, the new law limited the term to cannabis sativa Linnaeus. There is respectable, though not unanimous, scientific authority to the effect that in addition to cannabis sativa Linnaeus there are at least two other varieties of cannabis sativa. See Stein, Laessig and Indriksons, An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and The Qualifications of Their Analysts, 1973 Wisconsin Law Review 727 at 767; United States v. Collier, (D.C., Super., March 19, 1974) 14 Cr.L. 2501.

Marihuana or marijuana in everyday speech is not a scientific name. However, when a statute defines a term with the limiting word “means,” the courts must construe the expression narrowly. See Helvering v. Morgan’s Inc., 293 U.S. 121, 55 S.Ct. 60, 79 L.Ed. 232 and Sims v. Moore, 288 Ala. 630, 264 So.2d 484. The 1971 Act narrowed “marihuana” to cannabis sativa Linnaeus.

The 1971 Act also has expressly proscribed possession of a tetrahydrocan-nabinol (THC). The dictionary definition of marijuana is broad and embraces a plant substance containing THC. See Schedule I, § 204(d) (17). We hold that under the indictment the use of the word “marijuana” apprised the defendant that he was accused of possessing THC. Such was the holding in Haynes v. State, 54 Ala.App. 714, 312 So.2d 406.

II

Appellant was arrested in a raid to search a trailer where drugs were found. The trailer was searched under a warrant. Present was an officer, Bruce Dean, who a few weeks earlier had made an under cover purchase of marihuana from McKenzie.

This officer told the raiding party to take McKenzie in. According to the defendant’s own testimony, “ * * * Officer Bruce Dean leaned over to the table where I was sitting and looked into my face and said, ‘Yeah, he is a pusher, too, take him on down.’ ”

Dean, having therefore seen McKenzie sell the marihuana to him (i. e., Dean) certainly knew of the commission of a felony and was entitled to arrest him or to cause him to be arrested.

No problem, moreover, would have arisen if the arrest had been illegal because no evidence (either confession or contraband) was the fruit of the apprehension. After indictment, a barren arrest withers away.

Ill

We have reviewed the record under Code 1940, T. 15, § 389 and consider the judgment below is to be

Affirmed.

TYSON and BOOKOUT, JJ., concur.

HARRIS and DeCARLO, JJ., concur in result.

       Appellant’s brief did not comply with Rule ., 49 Ala.App. XXI. See 28(a)(7) ARAP.