author: BOYER, Chief Judge.

text:
    GEORGIA-PACIFIC CORPORATION, Appellant, v. CONSOLIDATED SUPPLIERS, INC., etc., et al., Appellees.
    No. AA-58.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    Rehearing Denied June 11, 1976.
    David W. Carstetter, of Kent, Sears, Durden & Kent, Jacksonville, for appellant.
    William DeCarlis, of Bates & DeCarlis, and Lansing J. Roy, Gainesville, for appel-lees.
   BOYER, Chief Judge.

By this appeal we are asked to initially construe certain provisions of the Uniform Commercial Code, Chapter 679, Florida Statutes 1975.

Since we are without precedent in this state, we deem it desirable to carefully delineate the facts. An examination of the order here appealed reveals that the verbiage of the learned trial judge can hardly be improved, therefore we quote:

“ORDER
“This cause was heard, after due notice, in connection with supplemental proceedings instituted by the plaintiff in aid of execution. The question presented to the Court is the priority of liens or claims against two automobiles claimed to be the assets of the defendant, Jack C. May, as between the plaintiff on the one hand and the respondents Donald L. Smith and Earl C, May on the other.
******
“The Court finds from the evidence adduced that:
“1. The plaintiff is the owner and holder of a Summary Final Judgment entered in this cause on March 5, 1975 in its favor and against the defendant Jack C. May (and others not material to this proceeding) for money damages totaling $31,827.68, which judgment was recorded in Volume 3882, pages 526 and 527, Official Records of Duval County, Florida.
“2. At the time of the entry and recording of said Summary Final Judgment the defendant Jack C. May had in his possession two automobiles, a 1971 Ferrari bearing Title Certificate Number 9379978 as issued by the Motor Vehicle Commissioner of the State of Florida, and a 1973 Ferrari bearing Title Certificate Number 11224301 as issued by said Motor Vehicle Commissioner.
“3. That on November 5, 1974, prior to the entry and recording of plaintiff’s aforesaid judgment, the defendant Jack C. May borrowed $13,000.00 from the respondent Donald L. Smith, executing and delivering to said respondent a demand promissory note therefor, which note recites no security therefor on its face, and simultaneously executing and delivering to said respondent a ‘Notice of Lien’ on a written form furnished by the State of Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. Said ‘Notice of Lien’ bears a description of the above-mentioned 1973 Ferrari (Title Certificate No. 11224301), advises ‘that there is an existing written contract involving the motor vehicle described below held by Donald L. Smith, lienholder’, describes the type of lien as ‘Chattel’, specifies the amount of the lien to be $13,000.00 and the date of the lien to be November 5, 1974. Said written ‘Notice of Lien’ was signed by the defendant Jack C. May and was properly notarized on November 5, 1974. This executed and notarized ‘Notice of Lien’ was promptly forwarded by the respondent Donald L. Smith to the State of Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, and a $13,000.00 lien was recorded by that agency on the face of the title certificate to said 1973 Ferrari automobile showing Donald L. Smith to be the 1st lienholder, with the date of lien being November 5, 1974. As aforesaid, all this occurred prior to the entry and recording of plaintiff’s aforesaid judgment.
“4. That on July 22, 1974, prior to the entry and recording of plaintiff’s aforesaid judgment, the defendant Jack C. May borrowed $10,000.00 from the respondent Earl C. May (his father) and on July 23, 1974 executed and delivered to said respondent a demand promissory note therefor, which note recites no security therefor on its face, and simultaneously executed and delivered to said respondent a ‘Notice of. Lien’ on a written form furnished by the State of Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. Said ‘Notice of Lien’ bears a description of the above-mentioned 1971 Ferrari automobile (Title Certificate No. 9379978), advises ‘that there is an existing written contract involving the motor vehicle described below held by Earl C. May, lienholder’, describes the type of lien as ‘Retain Title’, specifies the amount of the lien to be $10,000.00 and the date of the lien to be July 22, 1974. Said written ‘Notice of Lien’ was signed by the defendant Jack C. May and was properly notarized on July 23, 1974. This executed and notarized ‘Notice of Lien’ was promptly forwarded by the respondent Earl C. May to the State of Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, and a $10,000.00 lien was recorded by that agency on the face of the title certificate to said 1971 Ferrari automobile showing Earl C. May to be the 1st lienholder, with the date of lien being July 22, 1974. As aforesaid, all this occurred prior to the entry and recording of plaintiff’s aforesaid judgment.
“5. That on April 9, 1973, prior to the entry and recording of plaintiff’s aforesaid judgment, the defendant Jack C. May borrowed $12,000.00 from the respondent Earl C. May (his father), executing and delivering to said respondent a demand promissory note therefor, which note recites no security therefor on its face. Over two (2) years thereafter and on June 5, 1975, subsequent to the entry and recording of plaintiff's aforesaid judgment, the defendant Jack C. May executed and delivered to the respondent Earl C. May a ‘Notice of Lien’ on a written form furnished by the State of Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. Said ‘Notice of Lien’ bears a description of the aforesaid 1971 Ferrari automobile (Title Certificate No. 9379978), advises ‘that there is an existing written contract involving the motor vehicle described below held by Earl C. May, lienholder’, describes the type of lien as ‘Chattel 2nd Lien’, specifies the amount of the lien to be $12,000.00 and the date of the lien to be June 5, 1975. Said ‘Notice of Lien’ was signed by the defendant Jack C. May and was properly notarized on June 5, 1975. This executed and notarized ‘Notice of Lien’ was forwarded subsequent to the entry and recording of plaintiff’s aforesaid judgment by the respondent Earl C. May to the State of Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, and a $12,000.00 lien was recorded by that agency on the face of the title certificate to said 1971 Ferrari automobile showing Earl C. May to be the 2nd lien-holder, with the date of lien being June 5, 1975.
“6. That at the time the defendant Jack C. May executed and delivered said promissory notes and ‘Notices of Liens’ on November 5, 1974 and on July 23, 1974 to the respondents Donald L. Smith and Earl C. May, respectively, it was the intent of said defendant and said respondents that the transactions were to have effect as secured transactions and that the money advanced to the defendant by said respondents and evidenced by promissory notes was to be secured by liens on the aforesaid automobiles despite the fact that no chattel mortgages, retained title contracts or lien documents other than the ‘Notices of Lien’ and the promissory notes were executed and delivered to the respondents.
“7. In the latter part of June, 1975, or early July, 1975, subsequent to the entry and recording of plaintiff’s said judgment, the defendant Jack C. May voluntarily surrendered posession [sic] of said two automobiles to the respondents Donald L. Smith and Earl C. May, advising them that he could not pay his indebtedness due to them and that he was, accordingly, surrendering the security for such indebtedness. Said automobiles are still in the possession, custody and control of the respondents.
“From the foregoing facts and upon the law applicable to those facts the Court concludes as a matter of law that the transaction between the defendant Jack C. May and the respondent Earl C. May on July 22-23, 1974 and the transaction between the defendant Jack C. May and the respondent Donald L. Smith on November 5, 1974 were ‘secured transactions’ within the meaning of Section 679.9-102(1) (a), Florida Statutes; that under the provisions of Section 679.9-302(3) (b), Florida Statutes, the filing of a financial [correctly financing] statement by the respondents Donald L. Smith and Earl C. May was not required in order to perfect their security interests in and to said automobiles ; that the respondent Donald L. Smith properly perfected his lien of November 5, 1974 in the amount of $13,000.-00 against said 1973 Ferrari automobile and the respondent Earl C. May properly perfected his lien of July 22, 1974 in the amount of $10,000.00 against said 1971 Ferrari automobile by compliance with the provisions of Section 319.27(2), Florida Statutes, * * * and that such liens on said automobiles, as so perfected, are superior in force and dignity to the plaintiff’s judgment lien; that even though properly perfected in accordance with Section 327.27(2) Florida Statutes, the respondent Earl C. May’s lien of June 5, 1975 (stemming from his loan to the defendant on April 9, 1973) in the amount of $12,000.00 against said 1971 Ferrari automobile is junior and subordinate in force and dignity to the plaintiff’s judgment lien.
* iff Jff jfc * ”

We agree.

AFFIRMED.

RAWLS and McCORD, JJ., concur.


source: Caselaw Access Project

author: MILLS. Judge.

license: Public Domain

text:
    Gerald A. LEWIS, as State Comptroller and Head of the Department of Banking and Finance, Petitioner, v. CAREER SERVICE COMMISSION of the State of Florida, and Jack Butler, Respondents.
    No. BB-430.
    District Court of Appeal of Florida, First District.
    May 26, 1976.

      Ryland T. Rigsby, Asst. Gen. Counsel, Keystone Heights, for petitioner.
    Ben R. Patterson, Tallahassee, for respondents.
   ON MOTION TO RECONSIDER ORDER

MILLS. Judge.

The Department of Banking and Finance moves the Court to reconsider its order of 3 May 1976 denying the Department’s motion to stay execution and suspend proceedings filed on 14 April.

The Department points out that on 14 April it filed a petition for writ of certio-rari with this Court in which it sought review of an order entered by the Career Service Commission requiring the Department to reinstate Butler in his job with it. The Department contends that under the provisions of Rule 5.12(1), Florida Appellate Rules, it automatically perfected a stay when it filed its petition for writ of certio-rari. Rule 5.12(1), Florida Appellate Rules, provides:

“(1) When Security Note Required.— When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execution or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court.”

In Yamaha International Corp. v. Ehrman, 318 So.2d 196 (Fla.App. 1st, 1975), we pointed out that under Section 120.68, Florida Statutes, effective 1 January 1975, that review of administrative action is now by petition for review rather than by petition for certiorari, but until the Supreme Court adopts appellate rules governing -petitions for review of administrative orders, rules for such review are those governing certiorari as amplified by Section 120.68, Florida Statutes.

In City of Panama City v. Florida Public Employees Relations Commission et al., 333 So.2d 470, opinion filed 5 May 1976, we stated that the filing of a petition for review does not itself stay enforcement of agency action, but that a stay may be granted - by the agency or by this Court upon appropriate terms. Section 120.68(3), Florida Statutes. Therefore, pursuant to Rule 5.5, Florida Appellate Rules, the mov-ant should apply to the agency for a stay or supersedeas.

We must consider the Department’s petition for writ of certiorari as a petition for review. The petition for review filed by the Department does not automatically stay the enforcement of the Commission’s order. If the Department desires to stay enforcement of the order, it should file its motion with the Commission for its consideration.

Accordingly, the motion for reconsideration is denied.

BOYER, C. J., and McCORD, J., concur.


author: MILLS, Judge.

text:
    Cam MAPOLES and Auto-Owners Insurance Company, Appellants (Defendants), v. Clayton Webb MAPOLES, III, by his next friend and father, Clayton Webb Mapoles, Jr., Appellees (Plaintiffs).
    No. BB-329.
    District Court of Appeal of Florida, First District.
    May 28, 1976.
    William H. Clark, Jr., of Clark & Par-tington, Robert P. Gaines, Pensacola, for appellants.
    T. Sol. Johnson, of Johnson, Johnson & Green, Milton, for appellees.
   MILLS, Judge.

By interlocutory appeal, the defendants seek review of the trial court’s order granting plaintiffs’ motion for summary judgment as to liability in a negligence action seeking damages for injuries caused by a dog.

Although the amended complaint charges Cam Mapoles with negligence only, both parties to this appeal urge us to determine whether, under the facts of this case, Section 767.01, Florida Statutes, makes Cam absolutely liable for the actions of her dog. We cannot do this, because this issue was not raised by the pleadings. Therefore, this issue was not legally presentable to the trial court nor is this issue legally presentable to this court.

Under the issues as made by the amended complaint and the answer thereto, the record on appeal fails to conclusively establish that there was no genuine triable issue of a material fact. Under these circumstances, plaintiffs were not entitled to a summary judgment as to liability as a matter of law, and the trial court erred in holding to the contrary.

The order granting summary judgment as to liability is reversed. This cause is remanded to the trial court for the purpose of considering any motions which might be made to raise the applicability of Section 767.01, Florida Statutes, of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.

BOYER, C. J., and McCORD, J., concur.


author: BLOODWORTH, Justice.

text:
    Durant McGowin SHEPPARD and Earnestine McGowin Nettles v. T. R. MILLER MILL CO., INC.
    SC 1787.
    Supreme Court of Alabama.
    May 14, 1976.
    Hugh M. Caffey, Jr., Brewton, for appellants.
    Broox G. Garrett, Brewton, for appellee.
   BLOODWORTH, Justice.

Appellants appeal from an adverse judgment determining appellee to be the owner of a 40-acre tract of wild, unimproved, unfenced swamp and timberland located in a remote section of Escambia County.

Two questions are presented on this appeal: I. Whether the “Dead Man’s Statute” is applicable so as to exclude certain testimony; and, II. Whether the ap-pellee has established its title by adverse possession. We answer these two questions thusly: I. “No” and II. “Yes” and affirm the trial court’s judgment.

Although both appellants and appellee have record chains of title extending back for more than a hundred years, neither party has record title out of the original patentee, Bennett E. Murphy, to whom letters patent were issued for the forty by the United States government on March 15, 1837. Appellee has the original sheepskin patent in its possession. It was introduced into evidence. Appellants’ record title extends back to December 10, 1868, and consistently describes the lands as a quarter section of 160 acres (which includes this forty). Appellee’s record title extends back to March 25, 1873, and consistently describes the 40-acre tract in question as a separate forty. Each side has assessed their lands for taxes since 1890, with the exception that appellants’ predecessors in title failed to assess their lands from 1893 to 1896. Each side owns other lands adjoining the forty in question.

The evidence was heard ore tenus. The trial judge found, inter alia: that evidence of actual possession of the forty was “indefinite,” “inclusive,” at best a “scrambling” possession until 1950-51; that in May, 1951, William Cook, an employee of appel-lee, went upon the forty with J. C. Mc-Gowin, father and predecessor in title of appellants, showed the forty and advised McGowin that it belonged to, and was claimed by, appellee and McGowin “expressed no dissatisfaction with said claim”; that in 1950 or 1951, another employee of appellee, Sam Sowell, went with McGowin and his son-in-law Nettles onto the forty when Sowell informed them it was “Company land,” and neither “made any protest of said claim”; that up to the date of his death on August 22, 1968, McGowin took no action with respect to appellee’s claim as to the ownership of the forty. The trial judge found the ownership of the forty to be established in appellee by adverse possession.

The evidence is undisputed: that one Brooks Lambert, employee of appellee, went on the property in 1951 to check on the forty as to whether the timber should be cut, and it was cut by appellee; that William Cook, went on the forty on an occasion in May, 1951, other than the occasion that he was accompanied by Mr. McGowin when he showed McGowin the lines of the forty; that one Sam Sowell, employee of appellee, between 1946 and 1950 went on the forty to locate the exact location of the river and found marked lines and the corners of the forty; that when Sowell went on the property with McGowin and Nettles in 1950 or 1951 he showed them the lines and corners of the forty; that four or five years later, Sowell testified concrete corners were placed on the forty and the east and west lines painted white; that Sowell had been back on the forty two or three times since inspecting it and that he knew of no claim made to the forty by McGowin or appellants; that Larry Hestor, aerial forester for appellee, found concrete markers at the comers of the forty about one year before trial and the exterior lines were painted white that he also later checked on beetle damage and cut some infested trees without interference or protest.

There is also evidence that appellee has attempted to lease certain lands, including the forty. On the other hand, appellants have executed oil, gas and mineral leases to lands, which include the forty. Moreover, appellants cut approximately 15 acres of timber on the forty not long before suit was brought by appellee. Appellee, on the other hand, executed a royalty lease to lands, including the subject forty, in favor of its stockholders, and leased the property for oil and gas exploration, twice since 1951. During the 1950’s, appellee caused the concrete markers to be placed at the corners of the forty and the exterior lines to be painted white.

I.

Appellants contend that the trial court erred in allowing Cook and Sowell to testify as to their conversations with the deceased McGowin because the conversations violated the “Dead Man’s” statute [Tit. 7, § 433, Code].

There are two answers to this contention. First, assuming without deciding that the testimony of Cook cannot be considered because of the “Dead Man’s” statute, the testimony of Sowell as to his conversation with McGowin remains. It is not violative of the “Dead Man’s” statute because it was witnessed by an “interested” 'witness — Nettles, McGowin’s son-in-law, and husband of one of appellants— one whose interests are clearly aligned with those of his wife in this case. Lowery v. Stinson, 291 Ala. 415, 282 So.2d 244 (1973). Moreover, he was present at trial and testified concerning the transaction.

Second, although Cook was an employee of appellee at the time of the conversations, he is not now. He is now a county commissioner and it does not appear that he has any pecuniary interest in the result of this lawsuit. Hulsey v. Folsom, 286 Ala. 474, 241 So.2d 889 (1970). Nor, for that matter, is an employee ipso facto incompetent under the “Dead Man’s” statute, although he may be if personally interested in the outcome of the suit. 97 C.J.S. Witnesses § 184.

II.

Appellants’ other contention for reversal is that appellee’s proof did not meet the requirements for establishing title by adverse possession.

Our rules of review are well established.

The testimony was taken ore tenus before the trial judge. Thus, his findings and conclusions thereon are given the same weight as a jury verdict and will not be disturbed unless plainly and palpably erroneous. Martin v. Howard, 293 Ala. 36, 299 So.2d 727 (1974).

We recently held in Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972):

“It is not necessary to physically reside upon land to establish title by adverse possession. Moorer v. Malone, 248 Ala. 76, 26 So.2d 558 (1946). Land need only be used by an adverse possessor in a manner consistent with its nature. Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). As was said in Matthews:
“ ‘(O)penness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership — such acts as would ordinarily be performed by the true owners in appropriating the land or its avails to his own use * * *.’ 168 Ala. 201, 53 So. 174.”

We think that appellee’s acts, as shown by the testimony, were sufficient to support the trial judge’s finding that appellee had met the requirements for establishing title by adverse possession.

Having concluded that there was no error in admitting the testimony of Cook and Sowell under the “Dead Man’s” statute and that there was evidence to support the trial court’s judgment, the same is affirmed.

AFFIRMED.

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

      . This act prompted suit. Judgment for the value of the timber cut is included in the final judgment herein.


author: ALMON, Justice.

text:
    ESTATE of J. T. AUTRY, Deceased v. Charles McDONALD et al. Hettie McMULLEN et al. v. Charles McDONALD.
    SC 1241-SC 1243.
    Supreme Court of Alabama.
    May 14, 1976.

      Ronnie E. Keahey, Grove Hill, for appellants.
    Coxwell & Coxwell, Monroeville, T. Watrous Garrett, Grove Hill, for appel-lees.
   ALMON, Justice.

This is an appeal from a judgment dismissing appellants’ complaint in Cir.Ct. No. 2014-J, the denying of appellants’ motion to dismiss in Cir.Ct. No. 2137 — J, and the allowing Cir.Ct. No. 2017-J to be refiled and continued as a pending cause.

All three of the cases arose from the administration of the estate of J. T. Autry. They involve real property which J. T. Autry or his wife, Sarah Autry, owned at the time of his death in 1971. J. T. Autry owned approximately 401 acres of land; Sarah Autry owned approximately 160 acres of land. Both J. T. and Sarah Autry died intestate. S. T. Autry was appointed administrator of the estate of J. T. Autry in the Probate Court of Clarke County. The administration is now pending in the Circuit Court of Clarke County.

The following is a sequence of events relevant to this appeal:

June 6, 1973: S. T. Autry, as Administrator of the Estate of J. T. Autry, filed a petition in the probate court pursuant to Tit. 61, §§ 245 & 246, Code of Alabama 1940, Recompiled 1958, wherein he sought to sell lands for a division of the proceeds. This petition not only described the J. T. Autry lands but also included the lands owned by Sarah Autry at her death. (Cir. Ct. No. 2014-J). Tit. 61, §§ 245 & 246 read:

§ 245. “Lands of an estate may be sold by order of the probate court having jurisdiction of the estate, when the same cannot be equitably divided among the heirs or devisees, when an adult heir or devisee files his written consent that the land be sold.”
§ 246. “The application for the sale of lands, either for payment of debts or for division, must be made by the executor or administrator in writing, verified by affidavit, to the probate court having jurisdiction of the estate, must describe the lands accurately, must give the names of the heirs or devisees, and their places of residence, and must also state whether any, and which of such heirs or devisees, are under the age of twenty-one years, or of unsound mind; and such applica-. tion may be contested by any party interested in the estate.”

July 23,1973: The administration of the estate of J. T. Autry was removed to the circuit court.

July 31, 1973: Charles McDonald, the appellee and one of the heirs, filed suit pursuant to Tit. 47, § 186, praying for a sale of lands by the court and a distribution of proceeds. (Cir.Ct. 2017-J). This complaint included the lands of both J. T. Autry and Sarah Autry. Tit. 47, § 186, reads as follows:

“The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of complainant or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to its own practices in equity cases.”

August 23, 1973: A motion to dismiss the action brought by appellee under Tit. 47, § 186, was made on the ground that a petition to sell for distribution was still pending in the Estate of J. T. Autry.

January 8, 1974: The above motion was granted.

March 19, 1974: 2014 — J was amended without leave of court, before any responsive pleadings were filed, to show that 160 acres of the property were owned by Sarah Autry, deceased' wife of J. T. Autry, the remainder belonging to J. T. Autry.

May 3, 1974: Appellee filed a second suit, Cir.Ct. No. 2137 — J, seeking sale for division of the 160 acres belonging to Sarah Autry.

May 6, 1974: A. Appellee appealed to this court from the judgment granting the motion to dismiss his original suit (2017-J) ; B. Appellee filed a motion to dismiss 2014-J on the ground that the March 19, 1974, amendment stated a new cause of action.

June 4, 1974: Appellant moved to dismiss 2137 — J on the ground that the court lacked jurisdiction because there was already pending before the court 2014-J involving the same subject matter as 2137 — J.

June 11, 1974: Appellee refiled 2017-J.

June 20, 1974: The circuit court granted leave to amend 2014 — J as of March 19, 1974.

December 13, 1974: The circuit court dismissed 2014 — J stating that the amendment filed on March 19, 1974, was a complete departure from the original petition filed under Tit. 61, §§ 245 & 246.

The court allowed 2017-J and 2137-J to proceed.

January 8, 1975: By motion of appellant the appeal in 2017-J was dismissed by this court.

Prior to submission of this case appel-lee Charles McDonald moved this court to dismiss this appeal “because all parties were not served with a citation” as required by Tit. 7, § 601, Code, supra. The provisions of § 801 are for the benefit of the appellee and serve to insure that appellee’s attorney has record notice of the appeal. Espey v. State, 268 Ala. 109, 105 So.2d 93 (1958); Pate v. State, 44 Ala.App. 553, 216 So.2d 191 (1968).

Occasionally it is difficult to determine from the record on appeal who the appellants or appellees are. We have searched all three records before us and are compelled to the conclusion that all parties involved are appellants other than Charles McDonald and Kitty Autry. Both Charles McDonald and Kitty Autry were without dispute served with a citation of appeal.

Stated differently, we cannot with any degree of certainty determine from the records before us that there were appel-lees other that the two mentioned above. The rule is that when compliance with this section is not literal and the court is doubtful as to whether or not there is substantial compliance, a motion to dismiss is to be overruled. Faust v. Baker, 31 Ala.App. 596, 20 So.2d 727 (1944).

On July 23, 1973, the administration of the estate of J. T. Autry was transferred from probate court to circuit court. The removal to circuit court affected no property rights in and of itself. This procedure merely substituted the circuit court for the probate court. Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169, 174 (1967).

“When the circuit court, in the exercise of its unquestioned jurisdiction, reached out and brought before it for administration the estate . . . then being administered in a court of competent and concurrent jurisdiction, it took over that estate, and the proceedings had therein, just where they stood when the same were taken over. The order of removal did not serve to set aside or to annul what had been properly done theretofore in the probate court, but rather to ‘pick up the proceedings’ where the probate court had left off, assuming, of course, that the proceedings theretofore had in the probate court were within the jurisdiction of that court and regular.” Ex parte Stephens, 233 Ala. 167, 169, 170 So. 771, 773 (1936).

Since the administrator was the first to petition either the probate court or the circuit court for a sale of the land of J. T. Autry, his petition had priority as to the sale of J. T. Autry’s land. Appellees cite Dent v. Foy, 206 Ala. 454, 90 So. 317 (1929), for the proposition that an action to sell land for distribution under Tit. 47, § 186, Code, supra, has priority over an action under Tit. 61, § 245. We disagree.

It can be seen from a close reading of Dent that while the estate was pending in the probate court certain heirs petitioned the circuit court for removal of the estate and in the same petition also sought sale for division. Subsequently, the administrators of the estate filed a petition in the circuit court setting up the pendency of the administration in the circuit court and alleging that several of the adult heirs had made written request that the real estate belonging to the estate be sold for division by the administrators.

Thus, in Dent, it was the heirs who first petitioned either of the courts for a sale for division. In the instant case, appellant administrator was the first to petition. Therefore our decision is consistent with Dent.

As to the 160 acres owned by Sarah Autry, it was the appellees who first petitioned for a sale for division. Appel-lees filed the petition under Tit. 47. Appellant maintains that his petition to sell the lands of Sarah Autry should have priority over that of appellee. He argues that he amended his original petition, and the amendment should relate back under Rule 15(c) of the Alabama Rules of Civil Procedure. His purported amendment could not relate back because his original petition was brought under Tit. 61, §§ 245 & 246. A petition under these sections must be filed by the administrator, together with an heir. McGowin v. Robinson, 251 Ala. 690, 39 So.2d 237 (1949); Bolen v. Hoven, 143 Ala. 652, 39 So. 379 (1904-1905 Term).

It must be remembered that we are dealing with the estate of J. T. Autry only. So far as we are advised, the estate of Sarah Autry is not pending in any court and it would follow that there is no administrator or executor of her estate. The appellant, S. T. Autry, as administrator of the estate of J. T. Autry, would have no authority whatsoever to petition for division under §§ 245 & 246 the lands belonging to another estate. Therefore, there was nothing pending for the purported amendment to relate back to.

We conclude that the petition of S. T. Autry to sell the lands of the estate of J. T. Autry has priority over the petition of appellees and' the petition of the appel-lees to sell the lands of Sarah Autry has priority over that of the appellants.

The judgment is affirmed in part and reversed in part for entry of judgment consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART WITH DIRECTIONS.

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


author: BRADLEY, Judge.

text:
    NATIONAL SECURITY FIRE AND CASUALTY COMPANY, a corporation v. Lewis HOPPER and Lurline Hopper.
    Civ. 694.
    Court of Civil Appeals of Alabama.
    May 12, 1976.

      Richard L. Taylor, Birmingham, for appellant.
    Sherman B. Powell, Sr., Decatur, for ap-pellees.
   BRADLEY, Judge.

The appeal is from an order of the Circuit Court of Morgan County wherein it refused to set aside a default judgment previously entered.

This case began with the filing of a complaint by the plaintiffs, Lewis and Lur-line Hopper, against defendant, National Security Fire and Casualty Company, a corporation, in which they sought to recover on a policy of insurance due to a fire loss.

There was filed on behalf of defendant a motion to dismiss which was denied and then an answer was filed pleading the general issue.

On February 28, 1975 Mr. John Eyster, counsel for defendant, notified defendant that the case was set for trial on March 17, 1975 and that he was withdrawing as counsel for defendant. A copy of this letter was sent to the trial court.

On March 14, 1975 defendant employed Mr. Richard Taylor, an attorney from Birmingham, to represent it in this case. Late in the afternoon of Friday, March 14, 1975, Mr. Taylor called Mr. Sherman Powell’s office in Decatur, the attorney for plaintiff here, and talked to Mr. Powell’s secretary.

Mr. Taylor says that he informed the secretary that he had just been employed to represent the defendant in this case and did not have the file, plus he had two cases set for trial in the Circuit Court of Jefferson County for March 17, 1975 and would need a continuance.

The secretary stated that she remembered the call and told Mr. Taylor that she . would relay the information to Mr. Powell, which she did.

Mr. Taylor did not contact the court or make further inquiry of Mr. Powell until after he was informed that an execution on a default judgment had been levied.

Mr. Powell said that his secretary notified him on Friday night, March 14, 1975, that a Mr. Taylor had called and said he was now representing the defendant and wanted a continuance because of a conflict with trials set in Jefferson County. Mr. Powell said he did not contact Mr. Taylor because he was ready for trial and did not want a continuance.

The case was called for trial on Monday, March 17, 1975 and the plaintiff appeared through counsel and announced ready for trial. The defendant did not appear by counsel or otherwise on that date.

The trial court entered a default, and gave leave to execute a writ of inquiry. The writ was executed by the court taking testimony and at the conclusion of the hearing entered judgment for plaintiff in the amount of $4,500 on March 17, 1975.

Subsequently, defendant filed a motion asking the court to set aside the default judgment, pursuant to provisions of Rule 60(b), 1 & 3, ARCP, and restore the cause to the trial docket. In support of this motion, defendant submitted an affidavit of its counsel, Mr. Taylor, wherein he stated that he contacted Mr. Powell’s office on Friday afternoon, March 14, 1975 and explained his dilemma to the secretary. He says that he understood from the secretary that the case would not be tried on March 17, 1975 and that he would be notified of any further action. He says that he was unaware that the case had not been continued, when, on April 21, 1975, he learned that an execution had been issued on a default judgment. He contends that he has a meritorious defense to the complaint and asks that the default be set aside under the provisions of Rule 60, ARCP.

The matter was submitted to the court on the motion to set aside, the affidavits of Mr. Taylor and Mr. Powell and the testimony of Mrs. Coleman, Mr. Powell’s secretary. At the conclusion of the hearing, the motion was taken under advisement, and, later, it was denied. This appeal arises from that order.

Prior to the inception of the Alabama Rules of Civil Procedure (ARCP), there was no appeal from a trial court’s denial of a motion to set aside a default' judgment, City of Birmingham v. Goolsby, 227 Ala. 421, 150 So. 322. Rather, review was properly addressed to the final default judgment itself, when requested by adequate assignment of error, Oliver v. Kinney, 173 Ala. 593, 56 So. 203.

With the adoption of the ARCP the motion to set aside a default judgment can be made via Rule 60(b) as well as Rule 55(c). The denial of a Rule 60(b) motion is ap-pealable. However:

“. . . [T]he only matter reviewable on appeal is the order of denial itself. The motion is not to serve as a substitute for appeal and, therefore, present for review the underlying judgment.” Halstead v. Halstead, 53 Ala.App. 255, 299 So.2d 300.

Thus, under the ARCP, appeal from the denial of a 60(b) motion to set aside a default is allowed. However, the denial of the 60(b) motion is one issue, the underlying entry of the default judgment is a separate issue. Raising one does not support review of the other.

In the present case, only the denial of the 60(b) motion is presented. Our review is thus limited strictly to the question of whether or not the trial court properly ruled on the motion.

Possible grounds for granting a 60(b) motion are expressly contained in the text of the rule. Of these grounds, plaintiff’s motion asserted “. . . fraud, mistake, inadvertence, and excusable neglect...."

We do not think the factual showing made by defendant in his motion justifies relief on the grounds relied on. Therefore the trial court was correct in overruling the motion, Griffin Burial Ass’n v. Snead, 25 Ala.App. 543, 149 So. 875.

In the instant case, neither defendant nor its lawyer appeared in court on the day appointed for trial. Both had notice of the trial date, and, although defendant’s lawyer sought an agreement from plaintiff’s counsel for a continuance, he never talked to nor obtained a commitment from plaintiff’s lawyer, nor did he ask the court for a continuance. Instead, defendant’s lawyer merely relayed a message to a legal secretary who cannot be held accountable for the conduct of plaintiff’s case. Furthermore, no inquiry was made concerning the disposition of the case or the date to which it had possibly been continued until well more than thirty days after the trial date. Based on these facts defendant was not justified in assuming the case was continued; consequently, his mistake or ne-gleet is not excusable. There is no evidence of fraud or misconduct on plaintiff’s part.

The order of the trial court overruling defendant’s motion to set aside the default judgment is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    McELRATH POULTRY CO., INC., a corp., and McElrath Farms, Inc., a corp. v. STATE of Alabama, DEPARTMENT OF REVENUE.
    Civ. 779, 779-A.
    Court of Civil Appeals of Alabama.
    May 12, 1976.

      Richard F. Allen, Montgomery, for appellants.
    William J. Baxley, Atty. Gen. of Ala., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen. of Ala., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen. of Ala., for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order of the Montgomery County Circuit Court upholding assessments for use tax imposed by the City of Albertville.

Assessments for the period January 1, 1972 through May 31, 1974 were levied against appellants on September 25, 1974. Taxpayers requested an administrative hearing. After hearing, the Department denied taxpayers’ request for redetermination and upheld the assessment. Taxpayers paid the assessments under protest. Appeal to the Circuit Court of Montgomery County was taken june 17, 1975. In the circuit court the cases were consolidated and submitted to the court on the pleadings, stipulation, and briefs. The court affirmed and upheld the assessments. Appeal to this court followed.

Taxpayers operated a wholesale poultry business located within the city of Albert-ville. In operating this business taxpayers purchased substantial quantities of goods outside of Albertville. Such purchases were made from sources in other cities and counties within the state and from out-of-state sources. According to the stipulation, no sales tax is normally paid on out-of-state purchases and taxpayers pay the state use tax on such purchases. Generally, local sales tax, where applicable, is paid on purchases made within the state. Such sales taxes are of two types. One is a “gross receipts” tax which may be, but is not required to be, passed on to the ultimate consumer. The other type is a true sales tax which must be added to the purchase price and passed on to the consumer.

The Albertville sales and use tax was first effective November 1, 1970. Under Title 37, Section 771(3), municipalities are granted authority to enact such taxes so long as they “parallel” the corresponding state sales and use tax. During the 1973 regular session the legislature amended Title 51, Section 811(3). This amendment, effective October 1, 1973, modified the use tax as regards certain farm machinery and equipment. The record does not show that any such devices were covered by the assessment here. In order to make its use tax conform to the state tax, the City of Albertville enacted amendments on January 21, 1974. The ordinance recited that it was retroactive to October 1, 1973; however, it was not published in a newspaper of general circulation until June 4, 1974.

Under Title 37, Section 759(1) the Department is required to collect certain local sales and use taxes when so requested by the city or town. When the instant case was heard the Department collected 189 sales taxes and 79 use taxes for various counties, cities and towns in the state. According to the stipulation the Department employs 100 agents who conduct sales and use tax audits on businesses subject to the tax. Many businesses have never been audited. With the present staff, it would take approximately 30 years to audit all the businesses subject to the tax. The Department does not enforce the use tax against any individuals throughout the state except with regard to property for which some form of license is required, such as motor vehicles, boats and airplanes.

Taxpayers present three basic arguments on appeal, the first being that selective enforcement of the use tax is a denial of equal protection and due process of law. It is well established that a statute or ordinance which is fair on its face can still be constitutionally objectionable when applied in an unjust and discriminatory manner. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Taxpayers contend that the use tax here challenged, although it purports to apply equally to all persons bringing property into the city for use therein, is in reality applied to only a few. However, we do not perceive the manner of enforcement as outlined in the stipulation to be arbitrary or unjust. Indeed, it demonstrates a rational and sensible method to collect the tax.

It is common knowledge that even the federal government does not audit every taxpayer to insure that the proper amount of taxes have been paid. Instead, selective audits are conducted with the knowledge that most taxpayers will comply with the tax laws rather than face possible civil and criminal penalties for violation. In this way the cost of collection is kept as low as possible while maintaining revenue levels. Although the number of auditors employed may not be sufficient to audit various taxpayers as often as the Department might prefer, we cannot see an arbitrary or unjust plan to discriminate against some taxpayers while purposely failing to require others to pay. Indeed, failure to determine if others have failed to pay tax due is no defense to collection of tax found due from taxpayer. Hamilton v. Adkins, 250 Ala. 557, 35 So.2d 183; 71 Am.Jur.2d, State and Local Taxation § 152.

Taxpayers also seem to feel that the fact that no attempt is made to collect use tax from individuals on property which does not require a license shows discrimination. In brief taxpayers argue:

“Has the Mayor of Albertville, or any member of the City Council ever paid the use tax on shoes bought in Gunters-ville, a suit bought in Birmingham, or a washing machine bought in Huntsville? Certainly not! Yet the Department’s auditors, going over the taxpayer’s records with a finetooth comb, identified and assessed the use tax on many purchases which cost less than a washing machine, less than a new suit, and indeed, less than a pair of shoes.”

The obvious answer to this argument lies in the records available for audit by the Department. Business enterprises normally keep detailed records of purchases for income tax and accounting purposes, Rarely would an individual keep such a record of purchases. Only by fielding an army of inspectors, inquiring into the origin of people’s shoes, suits, washing machines, food or other personal property could the State enforce the use tax as regards individuals. By limiting its attempts to enforce the use tax to personal property of individuals requiring licenses, the Department enforces the tax in the only rational and reasonable way possible.

Taxpayers’ second main argument is that Albertville’s use tax ordinance does not “parallel” the State use tax as required by Title 37, Section 771(3), Code. Title 51, Section 789(3) provides:

“Credit for sales or use tax paid to another state. — If a sales or use tax equal to or greater than the amount of the Alabama tax is paid to another state under a requirement of law, the property which is the subject of such tax, when imported for use or consumption in Alabama is not subject to the use tax, which is required to be paid by section 788, Title 51, Code of Alabama 1940, as amended. If the amount of tax paid to the other state is less than the Alabama tax, then the difference between the out-of-state tax and the Alabama tax must be paid. No credit will be allowed for taxes paid on tangible personal property in any state which does not give credit for taxes paid on similar property in Alabama. The commissioner of revenue shall require such proof of payment of tax to another state as he deems to be necessary and proper.”

Taxpayers argue that, since the state use tax allows a credit for sales or use tax paid to another state, a city use tax should allow a credit for sales or use tax paid to other counties or cities in order to be “parallel.”

It would seem that the intent of Section 789(3) is to avoid taxing a second time property which has already been subject to tax in another state. Taxpayers would argue that this intent should be carried over to city use taxes so that if, for example, goods purchased in Birmingham were subject to a 2% sales tax, they would not be subject to a 2% use tax when brought into the City of Albertville. Indeed, the Department seems to feel that such an intent should prevail. According to the stipulation, the Department has adopted a practice of allowing a credit for a “true” sales tax paid to another city or county, provided the Department administers that tax. However, no credit is allowed for a “gross receipts” tax paid to another city or county, or for a “true” sales tax paid where the Department does not administer that tax.

Section 789(3) does provide a credit for sales and use tax paid to another state. However, it does not expressly provide a credit for sales and use tax paid to a city or county in another state. For example, suppose taxpayers had purchased equipment in Jackson, Mississippi, and paid a state sales tax of 3% and city sales tax of 2%. Under Section 789(3) taxpayers would only be entitled to a 3% credit against the 4% Alabama use tax. This is so even though a total tax of 5% was paid in Mississippi. Yet taxpayers here contend that the legislature intended a credit for city sales or use tax paid on purchases made within Alabama when it did not allow a similar credit for purchases made out of the state.

In State v. Bankhead Mining Company, 279 Ala. 566, 188 So.2d 527, the Supreme Court said:

“It must also be remembered that we are here dealing with an exemption to a taxing statute. It is well settled by numerous of our cases that taxation is the rule; exemption the exception. When it is claimed that property is relieved of taxation by an exemption provision the intention of the legislature to release such property from its just proportion of public burden must be expressed in clear and unambiguous terms, and such release should not be deduced from language of doubtful import, nor where there is room for reasonable controversy as to legislative intent. See 18 Ala.Dig., Taxation, 204(2), for innumerable authorities.”

Section 789(3) does not expressly require a credit as urged by taxpayers. Therefore the use tax in question is not void for failure to include such a credit.

Taxpayers’ third main contention concerns amendments to the state use tax enacted by the 1973 legislature. One of these amendments, effective October 1, 1973, made changes in the use tax imposed on agricultural machinery and equipment. The record does not disclose that any such devices were part of the assessment against taxpayers.

On January 21, 1974, the City Council of Albertville enacted an ordinance amending the Albertville use tax to conform to the state statute as amended. The ordinance recited that it was effective October 1, 1973, but was not published as required by law until June 4, 1974. Taxpayers assert that the ordinance was not effective until June 4, 1974, and, therefore, the city use tax was not parallel to the state tax during part of the period in question.

As previously stated, the record does not reflect that any property affected by the amendment was taxed as part of the audit. Taxpayers state in brief that, for purposes of this case, the nature of the amendments are not relevant.

Under these circumstances we find that taxpayers lack standing to raise the issue of failure to amend the ordinance to conform to the state amendment. State v. Brown Service Funeral Co., 236 Ala. 249, 182 So. 18. The provision of the ordinance under which taxpayers were taxed was in every respect parallel to the state use tax statute. Only if use tax had been assessed on some form of agricultural machinery and equipment that was in some way affected by the 1973 amendment would taxpayers have standing to attack this particular portion of the ordinance. Wallace v. Brewer, 315 F.Supp. 431 (M.D.Ala.1970).

The final judgment of the court below being correct, this case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Danny McNEILL v. Connie Sue McNEILL (Day).
    Civ. 742.
    Court of Civil Appeals of Alabama.
    April 7, 1976.
    Rehearing Denied May 12, 1976.
    James M. Prestwood, Andalusia, for appellant.
    Powell & Sikes, Andalusia, for appellee.
   BRADLEY, Judge.

This is an appeal from a decree of the Circuit Court of Covington County slightly modifying a divorced mother’s privilege of visitation (temporary custody) with the minor child of the parties’ marriage. Appellant-father argues that the trial court erred in not requiring the mother to post bond or other security prior to removing the child from Alabama jurisdiction.

The parties were divorced on February 23, 1973. Custody of the child was awarded to the father, so long as the custody was maintained at the home of the child’s paternal grandparents. The mother was granted visitation privileges with the child on those weekends of each month on which the second and fourth Saturdays occur. Such weekend period was to begin at 5:00 p. m. on Friday and terminate at 5:00 p. m. Sunday. Visitation privileges were also granted for certain holidays and for the entire month of June. The divorce decree further specified that all exchanges of custody of the child be made at the police station in Andalusia.

There were no restrictions on the places or manner in which the visitation privilege was to be exercised, other than those noted above. There was no requirement that the mother notify the father in advance of her intention to exercise her visitation privilege.

On October 3, 1975 the mother filed a petition for modification stating that the appellant had failed to allow the visitations permitted by the divorce decree, and that the father and child no longer resided with the paternal grandparents. The petition requested that the father be punished for contempt, and be required to pay all attorneys’ fees in the proceeding; and that the permanent custody of the child be placed in the mother. The father’s answer, filed November 10, 1975, denied interference with the visitation privileges, and stated that appellee had allowed two years to elapse without attempting to exercise said privileges. That same day a hearing was held wherein the trial judge heard oral testimony taken from the parties.

The decree appealed from was entered on November 12, 1975. The father was found innocent of contempt, and the custody and visitation provisions of the original divorce decree were affirmed in all respects with the following exception:

“ . . . [Tjhe commencement of the Plaintiff’s periods of visitation should commence at 8:00 o’clock a. m. on Saturdays and end at 5:00 o’clock p. m. on Sundays and provided further that the Plaintiff be required to give the Defendant 24 hours notice either by letter or by telephone each time that she expects to exercise the rights of visitation in order that the Defendant will not have to prepare the child for visitation unless the Plaintiff is in fact going to exercise her rights of visitation.”

The mother is now remarried and resides in Panama City, Florida, where she intends to take the child during visitation. The father makes several references in his brief to the quality of homelife and other environmental factors which the child will encounter during visitation. The evidence in the record does tend to show that the environment which the mother intends to provide is in many ways suspect. However, the present appeal does not present issues which require us to take a position as to the suitability of the mother or her Florida home for temporary custody of the child.

Although the Alabama Rules of Appellate Procedure (ARAP) have abolished assignments of error, it is still the appellant’s burden to adequately delineate the issues upon which review is to be based. These issues must appear in the statement of issues prescribed in Rule 28, ARAP, although this court has held that we will look to the entire brief, where helpful, to resolve minor inadequacies in the presentation of issues, Thoman Engineers, Inc. v. McDonald, Ala.Civ.App., 328 So.2d 293 (1976).

In the instant case, our thorough examination of appellant’s brief compels the determination that the sole issue raised by this appeal is whether the trial court erred in allowing appellee to temporarily remove the child from Alabama to Panama City, Florida, without requiring her to post bond or supply other security. Appellant’s references in his argument to appellee’s basic suitability for custody are aimed at bolstering the argument against removal from Alabama, not toward establishing an independent claim of error.

The trial court has the authority to allow the custodial parent to take the child beyond the jurisdiction of the court. The requirement of a bond to assure the return of the child is discretionary and will not be revised on appeal except for an abuse of that discretion, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891.

The trial court permitted the mother to have the child visit with her, knowing from the evidence that the mother intended to effect this visitation at her home in Panama City, Florida, and did not require a bond to assure its return to Alabama. The record is devoid of any evidence that the mother intended to permanently keep the child in Florida once she obtained temporary custody. We therefore conclude that the trial court did not abuse its discretion in failing to require the mother to post a bond prior to visitation with the child. In view of this conclusion, we affirm the judgment of the trial court.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    ATLANTIC AMERICAN LIFE INSURANCE COMPANY, a corporation v. Wanda Joyce WHITE.
    Civ. 537.
    Court of Civil Appeals of Alabama.
    April 14, 1976.
    Rehearing Denied May 12, 1976.
    Wilson & Collier, Florence, for appellant.
    Murray W. Beasley and Inge P. Johnson, Tuscumbia, for appellee.
   HOLMES, Judge.

This is an appeal from a final decree wherein the trial court sitting without a jury awarded appellee-wife the proceeds of an insurance policy. The policy insured the life of appellee-wife’s husband and provided coverage for accidental death.

. The appellant-insurance company appeals and the issues on appeal are: (1) Did the trial court err in finding that the death of appellee’s husband was “accidental”? (2) Did the court err in finding for the wife when there is evidence that the proceeds of the policy were assigned to the wife’s attorney ?

We answer both in the negative and affirm.

I

The policy of insurance in pertinent part provides as follows:

“This policy provides indemnity for loss of life, limb, sight or time caused by bodily injuries effected through accidental means as hereafter limited and provided.
“THE COMPANY WILL PAY the benefits named in this policy for any loss resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external and accidental means whether such injuries occur in the course of any occupation or employment, or otherwise, subject to the provisions, definitions, exceptions, statements and limitations herein contained.”

The evidence in this case consists of the testimony of the wife, the policy of insurance, the death certificate, and the coroner’s report.

The wife’s testimony is critical on this appeal and for purposes of the first issue constituted all the evidence concerning the events leading up to the insured’s demise.

The tendencies of her testimony are as follows: The wife left the husband because she “couldn’t stand his beatings any more; she returned on the day of her husband’s death at approximately 10:30 or 11:00 Á.M.; they confronted each other about 3:00 P.M. The husband thereafter proceeded to kick the wife in the stomach and chest. The husband pulled a gun, threatened the wife’s mother and forced the wife into a car. As the couple proceeded in the car the husband continued to hit the wife and pull her hair. He also threatened to kill her. They stopped their journey at the home of one Joe White. There, the husband informed Mr. White that he was “. . . fixing to kill her (wife).” While the husband held the wife by the hair and had one leg on her shoulder the gun fell out of the husband’s pocket. The wife thereupon picked up the weapon and told the husband to leave her alone. The husband then stated, “I’m going to kill you,” and made a step toward the wife. Thereupon, the wife testified she shut her eyes and started firing the gun. She further testified she was scared; she did not mean to kill him and thought she was firing over his head. The gun was emptied and the husband, according to the certificate of death, was struck in the left chest, left shoulder, and left hand. His death was instantaneous.

In Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 156, 130 So.2d 178, 181, we find the following:

“The general rule is stated in 45 C.J.S. Insurance § 788, p. 827, and is quoted by the Court of Appeals in United Security Life Insurance Company v. Clark, 40 Ala.App. 542, 115 So.2d 911, 914:
“ ‘If insured is innocent of aggression or wrongdoing, and is killed or injured in an encounter with another, his death or injury is accidental, or is caused by accidental means, within the policy, as where he is injured while defending himself against an unprovoked assault; and even though he is the aggressor, if he could not reasonably anticipate that his acts or course of action would result in death or bodily injury at the hands of this antagonist, insurer may be held liable.’ ” (Emphasis supplied)

Additionally, in Provident Life and Accident Ins. Co. v. Hanna, 294 Ala. 37, 311 So.2d 294, we find an erudite discussion of the law applicable to this issue now before us. This discussion need not be repeated.

In Hanna, supra, the facts are very similar to the instant appeal, and the Supreme Court of Alabama found that they could not say as a matter of law that the death was not accidental. We cannot so say in this instance.

There was evidence to support a finding that the wife killed her husband in self defense, or that she did not mean to shoot him, only that she meant to scare him by firing over his head.

Additionally, keeping in mind the testimony that there were beatings in the past, none of which apparently gave the husband reason to expect violent resistance by the wife, we deem it appropriate to quote from Hanna, supra, where the supreme court, through Justice Shores, states as follows:

“The issue of whether the death was accidental must be determined according to the accepted view 'that an accident is an occurrence that is not to be expected or anticipated in the light of common experience and of the existing circumstances,’ and such determination is made from the standpoint of the insured.
“ 1 . . . The fact that the beneficiary kills the insured in what the former supposes is self-defense does not mean that the killing is not an “accident” within the meaning of the [policy] provision, unless it appears that the insured must have known, or at least have anticipated, that because of his conduct the beneficiary would in all probability kill him.’ 44 Am Jur. 2d, Insurance, § 1742.” (294 Ala. at 41, 311 So.2d at 297)

We would be remiss in not pointing out that appellant, through able counsel who has favored this court with an excellent brief, argues that Insurance Co. of North America v. Southern, 52 Ala.App. 357, 292 So.2d 476, is controlling. While counsel’s argument is persuasive, it is not convincing. We find Hanna, supra, to be factually similar to the instant case and Southern, supra, to be distinguishable.

In the instant case, as in Hanna, supra, the parties to the affray were husband and wife, the beatings had repeatedly taken place before and only the wife was armed at the time of the shooting. However, in Southern, supra, the parties were apparently strangers who never before had such an encounter, and the deceased while armed with a knife attacked another whom he knew to be armed with a gun. We find the Southern case is thus factually distinguishable.

II

Appellant additionally urges error in that, prior to suit being filed, the wife had assigned or transferred all her interest in the proceeds of the policy to her attorneys. Appellee-wife was the named beneficiary in the policy. Put another way, appellant contends that the trial court erred to reversal in overruling proper motions raising the question of non-joinder of necessary parties plaintiff. This contention is bottomed on Tit. 7, § 126, Code of Ala. 1940.

We find no merit in this contention. As appellee points out in brief, the policy contains the following provisions:

“CHANGE OF BENEFICIARY. Unless the Insured makes an irrevocable designation of Beneficiary, the right to change of Beneficiary, as to any death benefits hereunder, is reserved to the Insured and the consent of the Beneficiary or Beneficiaries shall not be requisite to surrender or assignment of this policy or to any change of Beneficiary or Beneficiaries, or to any other changes in this policy. Such change in Beneficiary shall take effect only upon endorsement of the same on this policy by the Company.
“ASSIGNMENT. No assignment of this policy shall be binding on the Company until it is filed with the Company at its Home Office. The Company will assume no responsibility, for the validity or sufficiency of any assignment, and any claim thereunder shall be subject to proof of interest and extent thereof.”

Again, as pointed out by appellee, no change of beneficiary was designated per the terms of the policy. Additionally, no assignment was filed with the company as provided by the terms of the policy. Under such circumstances, we can perceive of no error in the trial court’s allowing the lawsuit to proceed in the name of the ap-pellee-wife.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Linda JUNKIN v. Clint Edwin JUNKIN.
    Civ. 761.
    Court of Civil Appeals of Alabama.
    May 12, 1976.

      Espy & Watson, Tuscaloosa, for appellant.
    Callahan & Nichols, Tuscaloosa, for ap-pellee.
   BRADLEY, Judge.

This is a child custody case. The parties were divorced on July 6, 1973. Custody of the only minor child of the marriage, born December 15, 1971, was awarded to appellant-mother and appellee-father was ordered to pay $150.00 monthly child support. On February 4, 1975, the father filed a petition for modification seeking to have custody of the child placed in him. A hearing was held in the Circuit Court of Tuscaloosa County, on May 12, 1975. At this hearing the trial judge sitting without a jury heard extensive oral testimony from the parties and numerous witnesses.

The decree entered on September 23, 1975 granted the father’s petition for modification: the decree placed the child in the father’s custody subject to the mother’s visitation privileges, and it terminated the father’s child support payments.

On October 7, 1975 the mother filed a petition for rehearing, supported by a brief which appears in the record. It is from the denial of this motion that the present appeal is taken by the mother.

The mother’s brief on appeal argues several issues. Of these, issue IV raises questions regarding an alleged arrearage in child support payments owed by the husband at the time of the modification decree. The appellant contends that when a father who comes into court seeking child custody is in arrears for support payments, he must show a sufficient excuse for his failure to pay or he will be denied custody, Cox v. Cox, 48 Ala.App. 574, 266 So.2d 784.

It does not appear from the record that the existence of an arrearage was established. The mother’s brief in support of her petition for rehearing does refer to an arrearage of $2,341.40. However, this brief has no evidentiary value, is not verified, and is nothing more than counsel’s argument! No reports, ledger sheets or other records of the register appear in the record. There is no documentary evidence of arrearage.

There is very little actual oral testimony, and such testimony is contradicted by the father’s testimony denying arrearage for the most part and explaining why some items were not paid. There is no indication that the father'was unwilling to settle all accounts or do whatever equity required.

The mother also contends that evidence as to arrearage was not entertained because the trial court wrongly deemed that matter irrelevant. Three excerpts from the transcript are presented in support of the contention.

On their face these excerpts standing alone do show the trial judge stating that the relevance of the matter of arrearage is doubtful. An examination of the entire transcript reveals that these remarks were made during two colloquys between the judge and the parties’ lawyers and that no testimony was excluded by virtue of these remarks. In one instance the excerpt was followed by a “voir dire” examination of the witness conducted by ap-pellee’s counsel, with the express consent of appellant’s counsel. This voir dire elicited a full page of testimony touching on the alleged arrearage. Appellant’s lawyer was then allowed to cross-examine the witness, and asked several questions about overdue medical payments.

In the second instance the remarks were made during an interruption of appellee’s, not appellant’s, examination of the witness. Despite the comment as to relevancy, the examination as to arrearage continued, and was followed by uninterrupted cross-examination.

The excerpts pointed to by appellant present us nothing to review. They were not rulings of the trial court. They resulted in the exclusion of no evidence. In one instance the judge was not even remarking on appellant’s questions, but was directing his remark to appellee.

Granted, the testimony as to arrearage was not extensive, However, this is entirely attributable to the course of questions posed by counsel and not to any limiting role of the trial judge.

Under this state of the evidence there were conflicting inferences to be drawn by the trial judge as to the equity of placing custody in the father where there was’ the possibility that an arrearage existed. The trial court’s finding, based on oral testimony, is presumed correct, Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244. There is no reversible error on this issue.

Issues I, II and III in appellant’s brief argue that the decree of modification is not supported by evidence showing changed circumstances or moral unfitness of the mother sufficient to overcome the presumption that the mother is best suited to have custody of the child.

The trial court’s decree was based on conflicting evidence taken orally. The decree is thus attended with a presumption of correctness, and should be affirmed unless plainly erroneous, Roubicek v. Roubicek, supra.

The record in this case is lengthy. There is no need to detail every particular, but the general tenor of the proofs can be discerned from the following summary, which is meant to be illustrative rather than comprehensive:

Linda currently has two children: the child in question and an illegitimate child born in 1974. She is receiving support from the illegitimate boy’s father as well as from appellee.

She currently lives in an apartment with another single mother, who also has two children. A social worker’s report indicates that this home is clean and well-furnished.

At the time of the divorce in 1973 the parties were residing at a trailer park in the Tuscaloosa area. The father moved out, and the mother and child remained there. Subsequently the mother’s relations with neighbors worsened. According to testimony of two neighbor women and the trailer park manager, appellant’s trailer was frequently the site of noisy gatherings. On one occasion appellant’s sister, a minor, was observed consuming alcoholic beverages at the trailer. A carload of young men visiting the trailer cursed one of the neighboring women. The four year old child had learned to make obscene gestures at several adults before she learned to talk. One party resulted in a late-night bottle throwing incident. One witness stated the child was present at that party. These events led to several loud arguments with the neighbors. Appellant was asked by the manager to vacate the trailer park.

Two other witnesses testified that they did not know appellant personally but knew of her reputation. One witness stated her reputation was bad; the other stated that she was reputed to frequent bars in Tuscaloosa.

Appellee testified to several incidents involving appellant. On one occasion the mother had attended a “whiskey party,” leaving the child with her sisters. There were four separate occasions when the mother left the child with its father or another relative, promising to return for the child in the afternoon or early evening, but not returning until late at night. On one of these occasions she did not return at all, and when the father located her she refused to accept the child, locking it out on the front porch while she and a gentleman friend remained inside.

The father stated that he hoped for a reconciliation throughout 1974, and in fact moved in with appellant after learning of her second pregnancy, even though he knew he was not the father of the second child. He paid all the rent and household expenses for this period. He moved out approximately two months after the birth of the illegitimate child. His stated reason for departing was that appellant resumed going to bars until late at night, leaving him to sit with both children. According to the father’s testimony, the mother gave either no indication or a misleading indication of where she could be reached at night: on at least one occasion she said she was going to the Bahnhof, which she explained was a place university students went to study. The Bahnhof is a tavern in Tuscaloosa.

Appellant testified that she provided a good home environment for the children, and that she did not drink. However, a letter in her handwriting invited the father of her illegitimate child to come over to her apartment and get drunk together as they had in the past. She testified by way of explanation that the letter was merely a joke.

The overall tendency of the evidence, though in dispute regarding many details, does support the decree below.

We are not impressed with appel-lee’s argument that the presence of the illegitimate half-brother, Scotty, per se renders the mother unsuitable. Conceiving a child out of wedlock is not condoned, but where a baby has been brought into this world without benefit of married parents, our law does not compound its misfortune by declaring him an outcast from his natural mother’s hearth and home. No public policy militates against the presence of legitimate and illegitimate siblings under one roof. The very existence of the adoption of legitimation statutes contemplates that the illegitimate’s status might someday be legally changed to remove any disability or stigma.

Nor does giving birth to an illegitimate child conclusively denote an immorality sufficient to deprive the mother of child custody. If such were true, a woman would automatically be deprived of custody over her own illegitimate offspring. This is neither the law nor custom in Alabama.

However, in other important regards the evidence does support the trial court’s modification of custody. This is so even though the evidence of the mother’s “immoral” conduct is less striking than in some cases this court has had to review.

In Thompson v. Thompson, 57 Ala.App. 57, 326. So.2d 124, there was extensive evidence of the custodial parent’s involvement in numerous sexual escapades. Nonetheless, the trial court’s order leaving the child with that parent was affirmed' because there was no conclusive evidence that the child was aware of or adversely affected by the parent’s course of conduct. Whatever other shortcomings that parent had, the trial court had found that the parent’s relationship to the child was characterized by interest and concern for the child’s welfare.

In the instant case, the evidence as to possible sexual conduct by the mothei falls far short of what was disclosed in Thompson. Nevertheless, we affirm the trial court’s decision to take the child out of the mother’s custody. The evidence in this case is sufficient for the court to find that the mother places her entertainment and social pursuits ahead of her regard for the child. The question is not the presence or absence of sexual activity in her social life; rather, the trial court must determine whether the emphasis on social life, promiscuous or chaste, detracts from a stable, worthwhile home environment for the child. The court below presumably found that the home life created by appellant did leave something to be desired, and there is legally sufficient evidence to support that decision.

There being no reversible error, the decree of the trial court is affirmed.

AFFIRMED.

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


text:
    Julius Allen GOODMAN v. DIRECTOR OF the DEPARTMENT OF PUBLIC SAFETY of the State of Alabama.
    Civ. 711.
    Court of Civil Appeals of Alabama.
    May 12, 1976.
    Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HOLMES, Judge.

This case concerns the revocation of appellant Julius Goodman’s driver license by the appellee, the Director of the Alabama Department of Public Safety. The Circuit Court of Montgomery County upheld the Director’s action. We affirm.

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

Appellant Goodman was arrested on April 7, 1974, by police officers of Dawson, Georgia, and charged with the offense of driving under the influence of intoxicating liquor. What apparently transpired is that appellant posted $110 bail and was allowed to depart. The Director subsequently received a report from the Mayor’s Court of Dawson, Georgia, informing him that appellant had not appeared in court to answer the above-mentioned charge and that consequently his bail had been forfeited.

The Director then revoked appellant’s driver license pursuant to Tit. 36, § 68, Code of Alabama 1940, which provides in pertinent part:

“The director of public safety is authorized to suspend or revoke the license of any resident of this state or the privilege of a non-resident to drive a motor vehicle in this state upon receiving a notice of the conviction of such person- in another state of any offense therein which, if committed in this state, would be grounds for the suspension or'revocation of the license of a driver. Also, for the purposes of this article a forfeiture of bail to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction. The director of public safety shall forthwith revoke the license of any driver upon receiving a record of such driver’s conviction of any of the following offenses, when such conviction has become final: . . . driving a motor vehicle by a person while intoxicated; . . .”

The Director’s action was upheld by the reviewing board of the Department of Public Safety. Appellant then appealed the revocation to the Circuit Court of Montgomery County, which after hearing oral testimony also upheld the Director’s action. Appellant now prosecutes the instant appeal to this court.

The above-quoted provisions of Tit. 36, § 68, Code of Alabama 1940, provide that the Director has discretionary power to revoke the driver license of an Alabama resident convicted in another state of an offense which, if committed in this state, would be cause for the revocation of that person’s driver license. To this court, the provision of Tit. 36, § 68, set out above concerning forfeiture of bail applies where bail is forfeited in another state for an offense which would in Alabama be grounds for revocation. Therefore, such an out-of-state bail forfeiture gives the Director cause to exercise his revocation power.

We have examined the statutes dealing with the offenses pertinent here, Tit. 36, §§ 2, 155, Code of Alabama 1940, and Tit. 68A, §§ 902, 902.1, Georgia Code Ann. (1975 Revision). We are satisfied that the elements of the Georgia offense are such that if the proscribed act occurred in Alabama, it would be cause under the Alabama driving while intoxicated laws for revoking the driver license of the person committing that act. The statutory criteria for the two offenses are the same. The Director therefore acted within his statutory authority in revoking the driver license of appellant Goodman, and the trial court did not err in upholding the Director’s action.

The only evidence introduced by the parties on the issue of the comparison between the pertinent Alabama and Georgia statutes was the oral testimony of an Alabama State Trooper Sergeant. Able counsel for appellant contends the admission of this testimony was error to reversal. Dispositive of this contention is Rule 44.1, ARCP, not cited to us by counsel for either party, which provides as follows:

“The party who intends to raise an issue concerning the law of another state or of any territory or dependency of the United States or of a foreign country shall give notice in his pleadings or other reasonable written notice. The Court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The court’s determination shall be treated as a ruling on a question of law.”

We initially note our opinion that the pleadings indicated the Director intended to raise an issue of foreign law.

Furthermore, the record reveals that the trial judge made the following remarks during the course of the proceeding:

“MR. MOONEYHAM: I still object to the form of allowing him to testify as to what the law of the State of Georgia is. I don’t think he is competent. It’s not the best evidence as to what the law of Georgia is.
“THE COURT: Well, if he misstates it, I will have a chance to correct it; because I am going to examine that Code.
“MR. MOONEYHAM: Your Honor, I’m going to object to what the State of Georgia reports to him. That’s hearsay.
“THE COURT: Overruled. This thing is going off on a question of law anyway.
“MR. MOONEYHAM: Now, we object to that for the record again. It’s not the best evidence.
“THE COURT: Yes, I’m going to examine that section of the Georgia Code.
“THE COURT: And I'want a copy of the Georgia statute dealing with this matter. You have it in your office.
“MR. NEUMANN: Yes, Sir, I have it in my office.”

Assuming without deciding that admission of the sergeant’s testimony was error under Rule 44.1, it was error without injury. Rule 45, ARAP. As shown -by the above, the trial judge made his own inquiry into the provisions of the Georgia law, as is specifically permitted by Rule 44.1, ARCP. Rule 44.1 further provides that issues of foreign law are to be determined as questions of law, with the result that the pertinent foreign law does not have to be proven as a fact. We note that Rule 44.1 thus abrogated the prior Alabama law on the subject, as cited to us by counsel for appellant, which required matters of foreign law to be pleaded and proven as facts. For a good discussion of Rule 44.1, see Wright and Miller, Federal Practice and Procedure: Civil §§ 2441^47, and particularly § 2444 concerning proof of foreign law.

We thus hold that no reversible error was committed by the trial judge in this regard, as contended by counsel for appellant.

Counsel for appellant further argues that the trial court erred to reversal by allowing the State Trooper Sergeant to testify as to the effect under Alabama law of a bail forfeiture. The effect of such a bail forfeiture is also a question of law, not required to be proven as a fact, so that any error by the trial court in admitting the sergeant’s testimony was harmless under Rule 45, ARAP.

All issues presented having been considered, and there being no error to reversal in the record, the case is due to be affirmed.

AFFIRMED.

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


author: SIMMONS, Supernumerary Circuit Judge.

text:
    Roy Douglas FOSTER v. STATE.
    7 Div. 440.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Jerry B. Oglesby, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   SIMMONS, Supernumerary Circuit Judge.

A jury heard the evidence on a plea of not guilty and convicted defendant of burglary in the second degree pursuant to an indictment therefor. The trial court fixed punishment at three years in the penitentiary. Judgment was duly entered, and this appeal in forma pauperis followed.

ON APPELLANT’S MOTION

It appears that the court reporter’s certificate to the transcript of the evidence is qualified and fails to meet the requirements of Title 7, § 827(1), Recompiled Code 1958.

The defendant filed his motion in this Court to reverse the judgment and remand the cause for a new trial because of such inadequate certification.

The Court remanded the cause to the trial court, under Rule 10(f), Alabama Rules of Appellate Procedure, for the purpose of determining and correcting any errors or omissions in the transcript of the trial proceeding. The trial court held a hearing after notice to the parties.

The court determined and reported to this Court after said hearing, “. that there are no errors or omissions in the transcript of the trial proceedings in said cause, and that said transcript is correct and complete.” Such judgment appears here in a certified copy of the order filed with the clerk of the Circuit Court of Calhoun County on March 5, 1976.

We will treat the transcript of the evidence, insufficiently certified by the court reporter, as full and complete.

The motion of appellant to reverse the judgment and remand the cause for a new trial because of the inadequacy of the reporter’s certificate is overruled and denied.

ON THE MERITS

It appears from the evidence of J. C. Steward that on August 23, 1975, he was the owner of a business in Calhoun County, whereat he engaged in general automotive repairs and specialized in transmission repairs. On the night of August 23, 1975, he was in Mobile when he was alerted that his business had been broken into, and he immediately returned to Anniston. He testified that the building that housed his business had two doors and that it was surrounded by a chain fence with two gates, one of which was wide. He kept a service automobile, equipment, tools and supplies in the building. He reached An-niston about 11:00 A.M. on August 23, 1975, and when he reached his place of business, he observed that the front door was “rammed through,” likewise the. gate on 12th Street was “rammed through”. He took an inventory and found missing items. Also he testified that his 1962 service Chevrolet was missing; it was aqua or faded greenish-blue in color. The automobile was a service car that he used to loan customers.

It also appears in his evidence that he next saw the automobile on the afternoon of August 23, 1975, at Wood’s Body Shop where it was impounded; that when he locked his place of business before leaving, the car was in real good condition, but when he saw it at Wood’s, it was bent up, lights were knocked out, bumper was bent, “and it was bent all over.” On cross-examination, the witness stated that, “I saw the building broken into after I came back.”

One Jessie Sears, Jr., testified that around “one or after, somewhere in there, I imagine,” he was near 12th and Clydesdale (the location of the victim’s business) ; that he observed a car come through the door, “backing through the door” of the building and went out on the north side; that he was within ten feet of the car; that it was a blue-looking car; that he could not tell who was in the car.

The witness further testified that in fifteen or twenty minutes he notified the police.

The next witness was police officer John Dryden, to whom witness Sears reported the alleged burglary. He testified about going to the premises and the doors of the building on the Clydesdale side being broken open, and that the back door had been forcibly opened.

John Gilmore, a police officer with the city of Anniston, testified that on the early morning hours of August 23, 1975, that he had an occasion to stop an automobile in which defendant was riding. It was a 1962 Chevrolet, light green in color, with faded paint. When he and his fellow officer attempted to stop it, the vehicle sped away and, “We had to pursue it.” The pursued vehicle struck another vehicle and went into a ditch, “on the other side of the road.” Further, that prior to hitting the ditch, two “subjects jumped out — one on the driver’s side and one on the passenger’s side.” He was able to identify W. E. Thomas who jumped out on the passenger’s side. He could not say that defendant was the other person on the driver’s side.

Officer Billy Lett, riding in the patrol car with Officer Gilmore on the early morning of August 23, 1975, testified that he was driving the patrol car that pursued the Chevrolet that struck a parked vehicle and later turned over in the ditch; that just before the two occupants of the pursued vehicle got out and fled on foot. Also, he testified they pursued the fleeing men on foot; that he pursued defendant, and his partner, the other occupant. He chased the driver two or three hundred yards. The witness identified the defendant as the driver of the pursued vehicle. He did not catch the driver.

The vehicle which the defendant was driving was taken by wrecker service to Wood’s Body Shop and there impounded. The chase began about fifteen minutes after they received information regarding this vehicle.

We think it is clear from the evidence that the impounded vehicle was the automobile that was removed from the victim’s business premises and was in possession of defendant when it was ditched. We also think it is clear that the vehicle was taken from the burglarized business as charged in the indictment; that the circumstantial evidence was sufficient to sustain the guilty verdict of the jury. The motion to exclude the evidence was properly overruled.

It appears that the District Attorney, on redirect, asked the witness Lett a question as follows:

“Q. Let me ask you one or two other questions. You say it was Roy Foster? Did you know it was Roy Foster then?
“A. We had pictures of him. He was escaped at the time.”

Thereupon followed defendant’s objection and motion for mistrial.

The court promptly sustained the objection, The trial court excluded the volunteered answer, “He was escaped at the time.” The court on the motion for mistrial gave lengthy instructions and admonition to the jury not to consider the volunteered answer.

After the court’s instructions, the District Attorney propounded a question to the witness:

“Q. Can you tell the ladies and gentlemen of the jury why you knew it was Roy Foster ? How did you know ?

The court ex mero mo tu stopped the question and observed:

“THE COURT: Just a minute. That type of question will bring out just exactly what we don’t want. Ladies and gentlemen, go outside just a little while under the same instructions I have given you and let me get this straightened out. “(Whereupon, the jury left the courtroom at which time the following proceedings were had) :
“THE COURT: Well, the word Why’, you see, allows the witness to say everything in his mind, and everytime that word, Why’ comes out that just opens the flood gate, and that was why I stopped you. We know from the previous trial that this witness had a picture of Mr. Foster in his possession in the car at the time of the attempted arrest; and we know that — I believe we know he had seen Mr. Foster before enough to be acquainted with him — had seen him one time. You can bring that out and I’ll let you lead him just to bring that out without bringing out that he had had previous charges or that he was a fugitive or anything of that nature because unless you have a record of conviction of a crime involving moral turpitude and the defendant chooses to testify none of that is admissible.”

Following a colloquy among the attorneys and the court, the court overruled defendant’s second motion for a mistrial. Garner v. State, 53 Ala.App. 209, 298 So.2d 630(1).

We fail to find any errors or rulings of the court that were prejudicial to defendant.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable 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.

Affirméd.

TYSON, HARRIS DeCARLO and BOOKOUT, JJ., concur.