author: CULPEPPER, Judge.

text:
    Alice C. ROCHE et al., Plaintiff and Appellant, v. BIG MOOSE OILFIELD TRUCK SERVICES, INC., et al., Defendant and Appellee.
    No. 6988.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Rehearing Denied July 11, 1979.

      Shelton & Legendre, Thomas F. Porter, Lafayette, for plaintiff and appellant.
    Raggio, Farrar, Cappel & Chozen, Frederick L. Cappel, Plauche,' Smith, Hebert & Nieset, James R. Nieset, Lake Charles, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a wrongful death action. The plaintiff, Mrs. Alice C. Roche, sues individually and as “natural tutrix” of the minors, William Donald Roche and Dawn Rachelle Roche, alleged adopted children of plaintiff and her husband, Joseph Daniel Roche. Mr. Roche was killed on December 3, 1975 while working as a roustabout for Fred Wilson Drilling Company, Inc. He was crushed when a load of heavy steel drill pipes fell from a truck owned by Big Moose Oilfield Truck Services, Inc. Named as defendants are Big Moose Oilfield Truck Services, Inc., Gardner LaCombe, driver of the truck, and their insurer, Reliance Insurance Company, all of whom are hereinafter referred to as the “Big Moose defendants”. Also named as defendants are certain executive officers and employees of Fred Wilson Drilling Company and their insurer, Liberty Mutual, hereinafter referred to as the “Fred Wilson defendants”.

The Fred Wilson defendants filed two exceptions. The first alleges the minor children have no right or cause of action for the death of Mr. Roche because the final decree of adoption of the children was not until January 5, 1976, approximately one month after the death of Mr. Roche. The second exception by the Fred Wilson defendants is that plaintiff has no cause of action because Act 147 of 1976, which abolishes the so-called “executive officer” actions, applies retroactively to this 1975 accident.

The Big Moose defendants also filed two exceptions. The first is the same as that filed by the Fred Wilson defendants, i. e., that the minor children were not finally adopted by Mr. Roche before his death. The second exception by the Big Moose defendants alleges that Mrs. Roche has no cause or right of action to file the present suit, since her sole remedy is to intervene in the prior suit filed by Fred Wilson’s workmen’s compensation insurer against Big Moose to recover workmen’s compensation benefits paid. In support of this second exception, the Big Moose defendants cite LSA-R.S. 23:1102 as authority for the contention that once an action is filed by the employer or the employer’s insurer under LSA-R.S. 23:1101, then the employee or his heirs must intervene in that suit or else be barred from recovery.

All of these exceptions by both sets of defendants were heard on the same date, May 1, 1978, and were taken .under advisement. On July 31, 1978, the district judge rendered written reasons holding: (1) The children have no right of action since the adoption was not final; (2) Act 147 of 1976 barring executive officer suits is not retroactive; (3) Mrs. Roche has no cause of action in the present suit since under R.S. 23:1102 she must intervene in the prior suit filed by the workmen’s compensation insurer against the tort feasors.

Pursuant to the written reasons rendered on July 31, 1978, a judgment was rendered and signed on August 10, 1978 in favor of only the Fred Wilson defendants sustaining their exception of no right of action as to the minor children but overruling their exception as to the retroactive effect of Act 147 of 1976. On October 9,1978, a separate judgment was rendered sustaining both exceptions urged by the Big Moose defendants.

On November 3, 1978, plaintiffs obtained an order for an appeal from the judgment “rendered herein on July 31, 1978 and read and signed in Chambers on October 9,1978.- ” The motion and order for appeal does not expressly mention the judgment rendered on August 10, 1978, but the motion does pray that ultimately judgment be rendered in plaintiff’s favor against all defendants.

The issues on appeal are: (1) Are both the judgment of August 10,1978 in favor of the Fred Wilson defendants and the judgment of October 9, 1979 in favor of the Big Moose defendants before us on appeal? (2) Do the minor children have a right of action for the wrongful death of Mr. Roche where the final decree of adoption had not been signed before his death? (3) Under LSA-R.S. 23:1102, is Mrs. Roche required to intervene in the prior suit by the workmen’s compensation insurer against the tort fea-sors rather than proceed in her present separate suit?

VALIDITY OF APPEAL AS TO FRED WILSON DEFENDANTS

The Fred Wilson defendants have not filed a motion to dismiss the appeal as to them, but they did file a brief contending that plaintiff did not appeal from the judgment of August 10, 1978 dismissing the claims of the two children against them, and that since the delays for appeal from that judgment have now elapsed the judgment is final.

At the outset, we notice that the motion and order filed by the plaintiff on November 3, 1978 is only for a suspensive appeal, and a bond was fixed in the sum of $100, but no such bond was ever furnished. Jurisprudence has established the rule that although the motion and order is for a suspensive appeal only, if the bond fixed is not filed within the delay for a suspensive appeal but is filed within the delay for a devolutive appeal, the appeal will be sustained and treated as a devolutive appeal. Succession of Garrett, 288 So.2d 659 (La. App. 3rd Cir. 1974). Under LSA-C.C.P. Article 2087, the delay for taking a devolu-tive appeal in the present case is within sixty days of the expiration of the delay for applying for a new trial, and thus is timely. Furthermore, under LSA-C.C.P. Article 2124, as amended by Act 176 of 1977, no security is required for a devolutive appeal, and thus none was required for a devolutive appeal in this case.

The question is whether the motion and order for appeal filed on November 3, 1978 constitutes an appeal from both the judgment of August 10, and the judgment of October 9, 1978. If it does not, the judgment of August 10, 1978 is now res judicata and is not before us.

The problem is difficult. There are early cases which support the argument of the Fred Wilson defendants that since the November 3 motion and order for appeal does not expressly state that it is an appeal from the August 10, 1978 judgment, no appeal has been taken from that judgment. For instance, in In re Guardian Homestead Association, 199 La. 216, 5 So.2d 750 (1942), which was a liquidation proceeding against an association, one judgment was rendered for the liquidator’s special agent for his services, and another judgment was rendered for the liquidator’s attorneys for their services, but there was only one motion and order for appeal which stated it was from the judgment in favor of the agent and the attorneys, without otherwise identifying the judgment appealed by date. Our Supreme Court dismissed the appeal on the basis that the motion and order did not sufficiently identify the judgment appealed. The court cited In re Liberty Homestead Association, 198 La. 1068, 5 So.2d 353 (1941) and Pichon v. Pichon Land Company, 174 La. 77, 139 So. 764, which also support the view that the motion and order for appeal must clearly identify the judgment appealed, as, for example, by date and by names of the appellees.

On the other hand, there are several cases which support the appellant. In Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967) a money judgment in favor of the plaintiff was read and signed on March 25, 1965. Defendant moved for a new trial, which was denied on July 6, 1965. In his motion and order for appeal, the defendant described the judgment by amount and by parties, but he erroneously gave the date as July 6, 1965. After first stating the general rule that appeals are favored and should not be dismissed except for “substantial causes”, the court held that since the judgment overruling the motion for a new trial was not appealable, the only appealable judgment was that rendered on March 25, 1965, and that it was obviously the intention of the defendant to appeal from the judgment on the merits. The opinion states: “It is apparent that the allegation in the petition relating to the judgment rendered on July 6, 1965 was an inadvertent error which was neither misleading nor prejudicial to anyone involved in the litigation.” The motion to dismiss the appeal was denied. This decision was followed in several later cases, including Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968) and Smith v. Hartford Accident & Indemnity Company, 254 La. 341, 223 So.2d 826 (1969).

The most recent case on the issue is Mirambell v. Lucien J. Caruso, Inc., 365 So.2d 1196 (La.App. 4th Cir. 1979), where one of two defendants filed an exception of prescription, and the trial court, by mistake, maintained the exception as to both defendants in a judgment signed on February 15, 1978. On February 23, the second defendant filed an exception of prescription. Also on February 23, plaintiffs moved for a new trial, complaining, inter alia, about the dismissal of the second defendant in the February 15 judgment. Both the motion for new trial and the second defendant’s exception of prescription were heard on March 10. The motion for a new trial was denied and the second defendant’s exception of prescription was sustained on March 10, and a judgment to this effect was rendered on March 28. On May 5, plaintiff moved for an appeal from the judgment of February 15 “and from the motion for a new trial denied on the 10th day of March, 1978.” In the Court of Appeal, the second defendant moved to dismiss the appeal as to him on the grounds that no appeal had been taken from the March 28 judgment against him. The Fourth Circuit Court of Appeal denied the motion, stating: “The evident intent of this appeal was to obtain reversal of the dismissal of the second defendant (as well as of the dismissal of the first). Plaintiffs’ motion for appeal included the March 10 ruling that later entered into the March 28 judgment, and gave the second defendant ample notice that plaintiffs were continuing the pursuit of the second defendant. The case is thus comparable to those in which an appeal purporting to be from the judgment denying a new trial was held to constitute an appeal from the principal judgment.”

We express no opinion as to the correctness of Mirambell. It went farther than any case from our Supreme Court in holding that where the appellant intended to appeal a separate judgment which, through inadvertent error, was not described in the motion or order of appeal, the appeal from the separate judgment will nevertheless fee entertained where no one was misled nor prejudiced. If we were to entertain the appeal at issue here, we would have to go even farther than Mirambell. In the present case, as in Mirambell, Mrs. Roche intended to appeal both the judgment of August 10 sustaining the exception filed by the Fred Wilson defendants, as well as the judgment of October 9, 1978 sustaining the exceptions filed by the Big Moose defendants. However, the present case differs from Mirambell in that here the exceptions filed by the Fred Wilson defendants were different from those filed by the Big Moose defendants, whereas in Mirambell the exceptions filed by the two defendants were the same, i. e., prescription. Furthermore, if we entertain an appeal from the judgment in favor of the Fred Wilson defendants, these defendants will be prejudiced, because if the judgment sustaining their exception as to the right of action of the minor children was not properly appealed, the issue of their liability to the minor children is now res judicata.

Although we recognize the rule that appeals are favored, there is also the rule expressed in the above cited Supreme Court cases that there must be certainty and definiteness as to what judgment is being appealed, because many important rights are affected. We think it would be a dangerous precedent to hold in the present case that there was an appeal from the judgment in favor of the Fred Wilson defendants.

RIGHT OF ACTION OF THE MINOR CHILDREN

The next issue is whether the minor children have a right of action for the wrongful death of Mr. Roche under LSA-C.C. Article 2315, which provides that if the injured person dies the right to recover damages caused by an offense or quasi offense shall survive in favor of certain listed persons, including “the surviving spouse and child or children of the deceased.” The article also provides: “As used in this article, the word ‘child’, . . includes a child, ... by adoption.”

The facts are that Mr. and Mrs. Roche were married in 1968 and had no natural children. In 1974, the Juvenile Court for the Parish of Calcasieu decreed the children to be abandoned and awarded their custody to the Louisiana Health & Social and Rehabilitation Services Administration for placement by the agency in the best interest of the children. The children were placed by the agency in the home of Mr. and Mrs. Roche. On November 19, 1975, Mr. and Mrs. Roche applied to the Juvenile Court for the Parish of Acadia for adoption of the children in compliance with LSA-R.S. 9:421, et seq. The hearing on the final decree of adoption was set for January 5, 1976. Mr. Roche was killed on December 3, 1975.

In Bertrand v. State Farm Fire & Casualty Company, 333 So.2d 322 (La.App. 3rd Cir. 1976), a two-year old child drowned in an oxidation pond. The natural mother had surrendered the child to the child’s maternal grandparents for adoption, and the grandparents had obtained an interlocutory decree of adoption, but the final decree had not been granted. We held under LSA-C.C. Article 2315 that since the final decree of adoption had not been granted the grandparents had no right of action, and that the natural mother had not lost her right of action. We cited cases holding the general rule that adoption is a creature of statutory law in derogation of the rights of natural children and parents, and therefore must be strictly construed. Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir. 1974) and the cases cited therein.

The rationale of Bertrand is controlling in the present case. We affirm the holding by the trial judge that the minor children have no right of action under Article 2315.

Mrs. Roche argues that because the children were adopted by her shortly after Mr. Roche’s death, they should be treated in the same manner as posthumous children. Plaintiff also argues that since Mr. Roche intended to adopt the children, Article 2315 should be extended to include them. For the reasons set out above and more fully explained in the opinion in Bertrand, we reject these arguments.

MANDATORY DUTY OF MRS. ROCHE TO INTERVENE IN PRIOR SUIT BY WORKMEN’S COMPENSATION INSURER

The final issue on appeal is whether Mrs. Roche is required to intervene in the workmen’s compensation insurer’s prior suit under LSA-R.S. 23:1102 which provides:

“If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.” (Emphasis supplied)

The facts are that on December 2, 1976 the workmen’s compensation insurer for Mr. Roche’s employer filed suit against the Big Moose defendants under LSA-R.S. 23:1101 to recover workmen’s compensation benefits paid. The present suit was filed by Mrs. Roche on December 3, 1976.

Although LSA-R.S. 23:1102 provides that if either the employee or the employer bring suit against a third person, the other “may” intervene, jurisprudence has established the rule that the employer’s failure to intervene after proper notice bars him from bringing a separate suit against the third party. Todd-Johnson Dry Docks v. City of New Orleans, 55 So.2d 650 (Orl.La.App. 1951); Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269 (1957); National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 175 So.2d 263 (1965).

Whether the same rule applies to the employee has not been clearly established in our jurisprudence. There is dicta in several cases suggesting that the rule applies to the employee as well as the employer. For example, in National Surety Corporation v. Standard Accident Insurance Company, supra, our Supreme Court held that a suit by the employer’s compensation insurer against the third party tort feasor interrupted prescription as to a suit filed by the employee more than one year after .the accident for the reason that there is only one cause of action under R.S. 23:1101. In dicta, the court stated:

“LSA-R.S. 23:1101, 23:1102, 23:1103, supra, do not set forth whether the injured employee or employer or the employer’s insurer shall sue first; when one files suit, however, the other, if he desires recovery must intervene. The intervention is incidental despite that it is filed by the employee. Article 1031, LSA-Code of Civil Procedure, süpra.”

Also, in Marquette Casualty Company v. Brown, supra, where the question was whether a suit by the employer interrupted prescription as to a later suit by the employee, the court stated:

“In addition, whenever a suit is brought against the tortfeasor by either the employer or the injured employee, the statute requires that the plaintiff give notice to the other interested party. Accordingly, should the injured employee institute suit, the compensation paying employer, upon notification thereof, no longer has the right to bring an independent action; he must intervene in the employee’s suit or his right to reimbursement for compensation will be lost.”

This language in Marquette Casualty Company implies that regardless of whether the employer or the employee files suit first, the other must intervene or his right of action will be lost. One policy reason suggested as supporting this rule is that the third party tort feasor has a right to have his liability fixed in one proceeding.

In his written reasons, the trial judge states he “reluctantly” concludes the present jurisprudence requires the plaintiff to intervene in the prior suit filed by the employer’s insurer. The trial judge was probably of the view that LSA-R.S. 23:1102 was intended by the legislature to protect the employer from losing his indemnification in the event of a suit by the employee against the third party tort feasor. Since the employee does not need similar protection of his rights against the tort feasor, the legislature may not have intended that the employee’s right to sue the tort feasor be restricted to intervention in the event of a prior suit by the employer. Nevertheless, the present jurisprudence of our Supreme Court supports the trial judge’s holding.

A final matter which should be mentioned is that the Fred Wilson defendants requested in their brief that in the event we find the August 10, 1978 judgment in their favor is before us on appeal, they be given the opportunity to file a brief on the merits, which they have not yet done. Since we hold the August 10, 1978 judgment was not appealed, there is no need for briefs by the Fred Wilson defendants on the merits of the right of action of the minor children.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Succession of Matthew P. SCHNEIDER, Jr. Gardner Morrow SCHNEIDER, Appellant, v. Matthew P. SCHNEIDER, III, Appellee.
    No. 12708.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      Harry S. Hardin, III, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for appellant, Gardner Morrow Schneider.
    Machen & Finch, Tom W. Thornhill, Sli-dell, for appellee, Matthew P. Schneider, III.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

Matthew P. Schneider, Jr., the decedent, died intestate on December 5, 1977, survived by his widow, Gardner Morrow Schneider and three major children, Dorothy Gardner Schneider Marshall, Matthew Peter Schneider, III, and Christopher Morrow Schneider.

On January 27, 1978, the widow, Gardner Morrow Schneider, was appointed provisional administratrix. Her petition alleged that the necessity of such appointment was to assure the continued successful operation of closely held corporations in which the decedent owned a substantial interest and to protect the interests of the succession therein. Mrs. Schneider’s letters of administration were issued the same day upon her filing the oath of office and furnishing security. The three children of the decedent signed as sureties on their mother’s bond. Mrs. Schneider proceeded to compile a detailed descriptive list of the assets of the succession, to administer the succession and to continue to operate the business.

The provisional administratrix, Mrs. Schneider, did not file a petition for notice of application for appointment as administrator provided for by La.CCP art. 3091.

On December 8, 1978, Matthew Peter Schneider, III filed a petition to be appointed permanent administrator of the succession. He alleged in his petition the need to continue the operation of the business and to protect the succession interests therein. He attached to his petition a certificate by the clerk of court that no request for notice of application for appointment as administrator had been filed. He was appointed permanent administrator by ex parte order on December 8, 1978. His letters of administration were issued the same day upon his compliance with the law.

Gardner Morrow Schneider on December 11, 1978, filed a petition to nullify the appointment of the permanent administrator and for a temporary restraining order. The temporary restraining order was issued but was dissolved on December 13, 1978. A hearing was set for January 8, 1979 on the preliminary injunction. On December 27, 1978, Mrs. Schneider was granted a stay of proceedings in order to file supervisory writs with this court. Mrs. Schneider’s writ sought to vacate the judgment of the lower court which appointed Matthew Peter Schneider, III the permanent administrator of his father’s succession. On January 17, 1979, this court issued the following order:

“Writs refused. While we have grave doubts as to the ex parte appointment of an administrator when the applicant has full knowledge of the existence of a provisional administrator, we deem it wise at this juncture to deny the writ so that this matter can proceed to an immediate hearing on Relatrix’s petition to have ex parte order rescinded and set aside.”

The lower court, subsequent to our order, set a hearing date of February 12, 1979. Mrs. Schneider obtained an appeal on February 6, 1979. The last day for appealing the December 8,1978 order was February 6, 1979. On February 21, 1979, this court granted an expedited appeal and fixed the case for oral argument on April 4,1979, and set the dates for filing of briefs.

On March 5, 1979, appellee, Matthew P. Schneider, III filed a motion to reassign the oral argument to a later date and a motion to dismiss. On March 8, 1979, this court denied the motion to reassign oral «argument and issued a show cause order on the motion to dismiss, referring the motion to the merits.

There are two issues on appeal. Ap-pellee, Matthew P. Schneider, III, made a motion to dismiss the appeal on the basis that the ex parte order appointing him as permanent administrator was an interlocutory judgment that did not cause irreparable injury and therefore was not appealable.

Under the General Rules of Procedure, which is Chap. 6 of Title I of Book VI, Probate Procedure of the Louisiana Code of Civil Procedure, Article 2974, it provides:

“Appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal. “The acts of a succession representative shall not be invalidated by the annulment of his appointment on appeal.”

La.CCP art. 2122 in Book III, Appellate Procedure, is a sister provision to La.CCP art. 2974, and it provides:

“A judgment or order of a trial court appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom.
“A judgment rendered on appeal vacating a judgment or order of the trial court appointing a legal representative does not invalidate any of his official acts performed prior to the rendition of the judgment of the appellate court.”

It is apparent that both of these provisions contemplate an appeal from an order of the trial court appointing a succession representative. We find that the judgment of the trial court in the instant case is an appealable judgment.

For the reasons given above, appellee’s motion to dismiss is denied.

The second issue is whether a provisional administrator, appointed for the purpose of continuing a business of the deceased, is entitled to notice of an application for appointment of a permanent administrator.

The succession procedure in Louisiana was revised in 1960 when the Legislature adopted the Code of Civil Procedure (CCP). We will examine the intent of these revisions in our discussion of this issue.

La.CCP art. 3111 provides:

“The court may appoint a provisional administrator of a succession, pending the appointment of an administrator or the confirmation of an executor, when it deems such appointment necessary to preserve, safeguard, and operate the property of the succession. On the application of an interested party, or on its own motion, when such an appointment is deemed necessary, the court may appoint a qualified person as provisional administrator forthwith.”

This provision incorporated the jurispru-dentially created rule that a court had the discretion to appoint a provisional administrator when it was necessary to continue the operation of an ongoing business enterprise which was part of the estate. See Succession of Coco, 184 La. 144, 165 So. 646 (1935); and Louisiana Civil Law Treatise, Vol. 10, Successions and Donations, Oppen-heim, § 225, pg. 334 (1973).

The courts, prior to the adoption of La. CCP, had wrestled with the problem of how to preserve the assets of a succession when they are in the form of an ongoing business. Obviously, without someone to manage and continue a business, the enterprise could be lost and thus a loss to the succession. In order to insure that the assets of the succession would be protected, while legal proceedings involving the succession were completed or until heirs could be put into possession or the will probated, etc., some method had to be provided to preserve, safeguard and operate the property of the succession while other proceedings took place. The appointment of a provisional administrator was the answer.

So important is the need to safeguard the continuation of a business that the new CCP also provided the court with the power to authorize a succession representative to do a number of things which are considered absolutely necessary for the efficient management of the estate. The CCP provides, after notice to heirs and creditors, and a contradictory hearing, if any oppose the request for authority, the district court can authorize the succession representative to continue any business owned by the deceased. See La.CCP art. 3224; and McMahon, The Revision of Probate Procedure, 1 La.Bar Journal 53.

La.CCP arts. 3224, 3225 and 3229 provide for the proper procedure for a district court to authorize a succession representative to continue a business of the deceased for the benefit of the succession.

La.CCP art. 3224 provides:

“When it appears to the best interest of the succession, and after compliance with Article 3229, the court may authorize a succession representative to continue any business of the deceased for the benefit of the succession; but if the deceased died testate and his succession is solvent, the order of court shall be subject to the provisions of the testament. This order may contain such conditions, restrictions, regulations, and requirements as the court may direct.”

La.CCP art. 3225 provides:

“When an application to continue business has been filed, the court may issue an interim ex parte order to the succession representative to continue the business immediately until such time as the procedure provided for by Article 3229 may be complied with. The order granted herein shall expire at the end of forty-five days unless extended by the court. “No appeal shall lie from the granting or denial of the interim order.”

La.CCP art. 3229 provides:

“When an application is made for an order under Articles 3198, and 3224 through 3228, notice of the application shall be published once in the parish where the succession proceeding is pending in the manner provided by law. When an application is made for an order under Article 3226 to grant a mineral lease, the notice shall also be published in the parish or parishes in which the affected property is located. The notice shall state that the order may be issued after the expiration of seven days from the date of publication and that an opposition may be filed at any time prior to the issuance of the order. If no opposition is filed, the court may grant the authority requested at any time after the expiration of seven days from the date of last publication.
“An opposition shall be tried as a summary proceeding.”

When Matthew P. Schneider, III petitioned to be appointed permanent administrator on December 8, 1978, he alleged as a reason for the administration that the business of the deceased needed to be continued in operation and the succession’s interest protected therein. He did not comply with the provisions of La.CCP arts. 3224, 3225 or 3229. The record reveals that as of the day Mr. Schneider was appointed administrator, the business was then being operated by the provisional administratrix. Mr. Schneider, on the date of his appointment, immediately took over the operation of the business, including the firing of the current management and placing himself in control.

Under these facts, there was no need for an interim order as contemplated by La.CCP art. 3225, but the court should have required compliance with La.CCP art. 3229.

We consider these provisions that we have cited significant because it expresses the intent of the legislature to safeguard and provide stability to an ongoing business of the succession in order that these assets might be preserved for the benefit of the succession.

The new CCP also provided for a means for applicants for the position of administrator to know if any interested person wishes to be notified of the filing of an application for appointment as administrator. We have reproduced La.CCP articles 3091-3098 and the comments thereto in Appendix 1.

Under La.CCP art. 3091 an interested person desiring to be notified of the filing of an application for appointment as administrator may petition the court for such notice. La.CCP art. 3092 specifies the form of such a petition.

However, to be sent notice the petitioner must file his petition within ten (10) days of the death of the deceased or prior to an application. La.CCP art. 3091. When notice has been petitioned for timely, an applicant for administrator must provide petitioner with a copy of his application and notify petitioner of the time for the hearing thereon. La.CCP art. 3093. The code provides how the court will proceed if notice has been petitioned for. La.CCP arts. 3094-3096. Under La.CCP art. 3094, if no notice is required, the court may appoint the applicant as administrator forthwith.

Appellee argues that appellant failed to comply with the provisions of La.CCP art. 3091 and therefore she was not entitled to notice of his application for appointment as administrator, nor was she entitled to have a contradictory hearing as to who should be permanent administrator.

We wish to note at the outset that appel-lee in his petition to be appointed permanent administrator made no mention of the existence of a provisional administrator. For the trial court to properly assess the need for permanent administrator of a succession as it relates to an ongoing business, we believe it is essential that the court be made aware by the pleadings of a provisional administrator who was appointed for the purpose of handling the ongoing business.

The intent of the notice provisions is found in the comments thereto (See Appendix 1). A two-pronged purpose is indicated. First, the method specified in La.CCP art. 3091 for notice is an easier means for interested parties to obtain the notice without having to either search the court records periodically or constantly search the local newspapers for the advertisement, which was the procedure in the Code of Practice. Secondly, La.CCP arts. 3091-3098 enables an applicant for administrator to determine if there is an interested person who had made an appearance in the record and if there is sufficient information in the record for the applicant to notify such interested persons of the applicant’s petition.

With these purposes in mind, it is clear that Mrs. Schneider evidenced herself as an interested party by her application and appointment as provisional administratrix. Appellee knew of her interest in fact because he signed as surety the bond his mother was required to post before her letters of administration could issue.

We turn next to the requisites for the form of petition for notice of application for appointment. La.CCP art. 3092 requires:

“A petition for notice under Article 3091 shall not be effective unless it is signed by the petitioner or his attorney, and sets forth: (1) the name, surname, and domicile of petitioner; (2) a statement of the interest of the petitioner; (3) the name, surname, and mailing address of the person to whom the requested notice shall be given; and (4) a prayer that the requested notice be given.”

We find Mrs. Schneider’s petition for appointment as provisional administratrix provides substantial compliance with La.CCP art. 3092. The only item lacking was the prayer that the requested notice be given.

Our overriding concern in interpreting these codal provisions is the public policy considerations incorporated into them which seek to protect and provide stability to an ongoing business enterprise. We believe the expression of the legislature’s concern for the operation of an ongoing business is seen in the codal provisions calling for a court’s determination of the proper person to maintain a business while other succession matters proceed to a conclusion. The protection of an ongoing business is a protection of succession assets so that when succession proceedings do conclude the assets of the business inure to the benefit of the proper recipients. We believe these objectives should be maintained.

With these reasons in mind, we find that Mrs. Schneider was entitled to notice of Matthew P. Schneider, Ill’s application for permanent administrator because the intent and purpose of the notice provisions were satisfied and substantial compliance was made with the statutory requisites for a petition for notice of application for appointment.

We find in the instant case that to protect and preserve an ongoing business and to continue the business, a determination of who shall administer the same should be made by a court after a contradictory hearing. We find in this factual situation that Matthew P. Schneider, III was required to give notice to the provisional administrator of his application for administration and that the court was required to set the matter for a contradictory hearing.

Because the business has had two administrators in one year’s time, and because our prime concern is with the stability and preservation of the business for the benefit of the succession, we remand this case to the district court with the following instructions:

(1) Matthew P. Schneider, III is to remain administrator until such time that the district court, after contradictory hearing, appoints an administrator;
(2) The district court is to hold a contradictory hearing as to the application for appointment of Matthew P. Schneider, III as administrator of the estate of Matthew P. Schneider, Jr. Appellant is to have notice of the date set for the contradictory hearing and an opportunity to oppose the application, if she so desires. This hearing shall be held within the delays as provided by law. Costs are left for a future determination.

MOTION TO DISMISS DENIED.

REVERSED AND REMANDED WITH INSTRUCTIONS.

APPENDIX 1

SECTION 2. ADMINISTRATORS

Art. 3091. Petition for notice of application for appointment

An interested person desiring to be notified of the filing of an application for appointment as administrator, at any time after the death of the deceased, may petition the court in which the succession has been opened, or may be opened, for such notice.

A petition for such notice shall comply with Article 3092, shall bear the number and caption of the succession proceeding, and shall be docketed and filed by the clerk in the record thereof.

When a petition for such notice has been filed within ten days of the death of the deceased, or prior to the application for appointment as administrator, the applicant for appointment shall serve the notice prayed for, as provided in Article 3093. Source: New; cf. Model Probate Code, § 66. Cross References: Arts. 3092, 3093, 3094.

Comments

(a) Under Arts. 967-973 of the Code of Practice and Art. 1117 of the Civil Code, an application for appointment as administrator must be advertised for ten days. This incurs unnecessary expense and produces unnecessary delay, especially in cases where no opposition to the application is made. In the rare case in which an interested party desires to oppose the application, his attorney either has to check the records of the court periodically, or gamble upon his ability to locate the judicial advertisement in the local newspaper.

For these reasons, rules similar to those contained in Sec. 66 of the Model Probate Code have been adopted. See Simes, Problems in Probate Law 94 (1946). These provisions will: (1) enable an interested person to receive notice of the application for appointment as administrator of the succession simply by filing the petition for notice; and (2) permit the expedition of the administration by granting discretion to the court to appoint the administrator forthwith, if no petition for notice has been filed. On this point, see McMahon, The Revision of Probate Procedure in Louisiana, 1 La.Bar J. 60-62 (October, 1953).

(b) The purpose of requiring a waiting period following the death of the deceased before any applicant can be appointed administrator is to afford a reasonable time for the filing of petitions for notice of the filing of an application for appointment.

(c) The reason for the express requirement that the petition for notice be docketed and filed by the clerk is to have this petition incorporated into the succession proceeding so effectively that counsel for any applicant for appointment can determine quickly and simply whether any such petitions have been filed, and thus enable him to comply with Art. 3093, infra, if he finds that such a petition has been filed.

(d) Neither Art. 3093 nor 3094, infra, requires or contemplates any court order upon the petition for notice. This is done to avoid throwing the burden of signing perfunctory and unnecessary orders upon district judges. Under these articles, the filing of the petition for notice automatically imposes the duty of serving notice upon any subsequent applicant for appointment, without the necessity for a court order.

(e) The sanction for the enforcement of the rule of the last paragraph of this article is the possibility of the removal of an administrator who fails to give notice of the filing of his application for appointment when required to do so, under the provisions of Art. 3182, infra.

(f) See, also, Comments under Art. 3442, infra.

Art. 3092. Form of petition for notice of application for appointment

A petition for notice under Article 3091 shall not be effective unless it is signed by the petitioner or his attorney, and sets forth: (1) the name, surname, and domicile of petitioner; (2) a statement of the interest of the petitioner; (3) the name, surname, and mailing address of the person to whom the requested notice shall be given; and (4) a prayer that the requested notice be given.

Source: New; cf. Model Probate Code, § 66.

Cross References: Arts. 3091, 3094.

Comment

See Comments under Arts. 3091, supra, and 3442, infra.

Art. 3093. Notice in compliance with petition

When notice has been petitioned for as provided in Article 3091, the applicant for appointment as administrator shall mail or deliver to the person designated to receive such notice a copy of his application for appointment, and shall notify him of the date and hour assigned by the court for a hearing thereon.

Source: New; cf. Model Probate Code, § 66. Cross References: Arts. 3091, 3094, 3182.

Comments

(a) The purpose of the requirement that any subsequent applicant serve a copy of his application for appointment upon the person designated to receive it is to make the notice effective by giving full and complete information. Since service of a certified copy of the application is not required, an office copy will suffice.

(b) The penalty for failure to give the required notice is the removal of the administrator. See Art. 3182, infra.

(c) See, also, Comments under Art. 3442, infra.

Art. 3094. Order on application for appointment

The court shall order the taking of an inventory, or the filing of a descriptive list as provided in Article 3136, of the property of the deceased upon the filing of an application for appointment as administrator.

If notice of the application for appointment is required under Articles 3091 through 3093, the court shall assign a date and hour for a hearing on the application, which shall be held not earlier than the eleventh day after the mailing or delivery of such notice. If no such notice is required, and ten days have elapsed since the death of the deceased, the court may appoint the applicant as administrator forthwith, unless he is disqualified under Article 3097.

Source: New; cf. Comments following.

Comments

(a)Heretofore, orders appointing a notary to take the inventory and for the publication of notice of the application for appointment as administrator were usually rendered simultaneously upon the filing of the petition for appointment, and the inventory was usually completed and returned before the court appointed the administrator. Under the above article, in the normal case when no request for notice of an application for appointment has been filed within ten days of the death of the deceased, the administrator will be appointed forthwith at the same time as the court orders the taking of the inventory, or the filing of the descriptive list of assets. Although the administrator cannot qualify until the inventory or descriptive list has been taken and filed, and security furnished, the taking of the inventory or descriptive list will be expedited, and the administration accelerated accordingly.

(b) Under Art. 3093, supra, the applicant for appointment as administrator must notify the person requesting the notice of the date and hour assigned for a hearing on the application.

(c) See, also, Comments under Arts. 3096, 3442, infra.

Art. 3095. Opposition to application for appointment

The opposition to an application for appointment as administrator shall be filed prior to the hearing on the application and shall be served on the applicant for appointment. This opposition shall comply with Article 2972, and shall allege the prior right of opponent to the appointment, or the grounds on which it is claimed the applicant is disqualified. If the opposition is based on a prior right to the appointment, the opponent shall pray that he be appointed administrator.

Source: New; cf. C.P. Arts. 970-973; C.C. Arts. 1118, 1119.

Comments

(a) Under Art. 2972, supra, the opposition filed in a succession proceeding must comply with the pertinent provisions of the rules in Arts. 853 through 863, supra.

(b) Art. 3097, infra, sets forth the grounds for the disqualification of the person who is named in a testament as testamentary executor, or who applies for appointment as administrator. The opposition to the application for appointment may be made either on the ground of a prior right of opponent to the appointment, or on the ground that the applicant is disqualified.

(c) Heretofore, a person opposing the application for appointment was required to allege and prove a prior right to the appointment and also claim the appointment himself. This last requirement has not been retained. A person having good reasons for opposing the application may not wish to claim the administration himself.

(d) See, also, Comments under Art. 3442, infra.

Art. 3096. Appointment when no opposition; appointment after trial of opposition

At the hearing on the application for appointment as administrator, if no opposition thereto has been filed, the court shall appoint the applicant, unless he is disqualified under Article . 3097.

If an opposition to the application for appointment has been filed prior to the hearing thereon, the court shall assign the opposition for trial. After this trial, the court shall appoint as administrator the qualified claimant having the highest priority of appointment.

If all of the claimants are disqualified under Article 3097, the court shall appoint a qualified person who is willing to accept the administration of the succession.

Source: New; cf. C.P. Art. 973.

Comments

(a) Art. 3094, supra, provides for a hearing on the application for appointment if an interested party has petitioned for notice of the application. Under this article, if the notice has been petitioned for and given, the court may still make an ex parte appointment, if no opposition has been filed prior to the hearing. If an opposition has been filed, then it must be tried.

(b) For the effect of an appeal from a judgment dismissing the opposition, and appointing the applicant, see Art. 2974, supra.

(c) Under this article, the court may appoint dual or plural administrators. See Art. 5055(1), infra.

(d) See, also, Comments under Art. 3442, infra.

Art. 3097. Disqualifications

No person may be confirmed as testamentary executor, or appointed dative testamentary executor, provisional administrator, or administrator who is:

(1) Under twenty-one years of age;

(2) Interdicted, or who, on contradictory hearing, is proven to be mentally incompetent;

(3) A convicted felon, under the laws of the United States or of any state or territory thereof;

(4) A nonresident of the state who has not appointed a resident agent for the service of process in all actions and proceedings with respect to the succession, and caused such appointment to be filed in the succession proceeding;

(5) A corporation not authorized to perform the duties of the office in this state; or

(6) A person who, on contradictory hearing, is proved to be unfit for appointment because of bad moral character.

Source: New; cf. Model Probate Code, § 96(b).

Cross References: Arts. 3082, 3094, 3096, 3182, 3404, 4067.

Comments

(a) There are no positive provisions in the Civil Code which set forth the grounds for the disqualification of a testamentary executor. Art. 1123 of the Civil Code provides that “If several persons claim the curatorship, the judge shall appoint one of them as curator, provided he has the requisite qualifications, and offers sufficient security.” An analysis of this article and others on the subject, however, indicates quite conclusively that the “qualifications” referred to relate to the qualifications for the necessary priority of appointment, such as “heir present or represented,” “surviving partner,” “surviving husband or wife,” or “creditor.” Despite the language used in Rust v. Randolph, 5 Mart. (O.S.) 89 (La.1817), to the effect that the rules of exclusion extend “only to those whom the law declares infamous,” it would appear that other disqualifications, such as minority, mental incompetency, and the lack of authority in law for an ordinary business corporation to be appointed as a succession representative, would also be recognized, if actual cases arose. These disqualifications, however, are usually invoked obliquely in cases of competition for the appointment, and in such cases, it is held the unsuccessful applicant does not fall within the classes to whom any priority of appointment is provided by law.

It is simpler and more effective to list expressly the disqualifications which would preclude the appointment and even disqualify a person nominated as executor in the testament.

(b) While Arts. 1045 and 1158 of the Civil Code indicate the possibility of there being a nonresident administrator of a succession, by providing that the attorneys in fact who represent absent heirs may claim the administration in their behalf, they neither make provision for the filing of a copy of the power of attorney in the succession proceeding nor make it clear whether the procuration should authorize the agent to perform any acts of administration, although Art. 1158(8) of the Civil Code would appear to imply this.

It would seem, however, that the only necessary requirement is that the nonresident appoint a resident agent for service of process in all actions and proceedings with respect to the succession. The great majority of the matters relating to the administration of a succession are routine and perfunctory, and these can readily be handled by communication between the nonresident and his counsel. Matters requiring the actual presence of the nonresident administrator in Louisiana could be handled personally by him in short visits to this state.

(c) The disqualification of “a person whom the court finds unsuitable” in Sec. 96(b)(6) of the Model Probate Code has not been included in this article. If the testator nominates a person to serve as executor, the latter should not be disqualified generally unless he is proved to be of bad moral character.

(d) As used in this article, the word “person” does not include a partnership or association of persons. See Art. 5251, infra.

(e) See, also, Comments under Arts. 3033, 3083, 3095, supra, and Arts. 3111, 3404, 3442, 4231, infra.

Art. 3098. Priority of appointment

When the appointment as administrator or dative testamentary executor is claimed by more than one qualified person, except as otherwise provided by law, preference in the appointment shall be given by the court in the following order to:

(1) The best qualified among the surviving spouse and the major heirs of the deceased;

(2) The best qualified of the nominees of the surviving spouse and of the major heirs of the deceased;

(3) The best qualified of the creditors of the deceased; and

(4) Any other qualified person.

“Best qualified,” as used in this article, means the claimant best qualified personally, and by training and experience, to administer the succession.

Source: New; cf. Model Probate Code, § 96(a).

Cross Reference: Art. 3404.

Comments

(a) Heretofore, the priority in appointment rested upon either: (1) close relationship, or (2) interest in the succession. If one of the competing applicants had the highest priority, he had to be appointed by the court whether he was qualified for the office or not. The court’s authority for selecting the best qualified applicant for appointment was applicable only when two or more beneficiary heirs applied for appointment. Otherwise, appointment depended entirely upon the particular class into which the applicant fell; and if two or more applicants belonged to the same class, then upon the one who filed his application first.

The above article places more emphasis upon the qualifications for the office. While it retains a priority based upon close relationship and interest, it permits the court, to some extent, to select the best qualified of the applicants, and broadens the base of selection by permitting the surviving spouse and competent major heirs to nominate qualified third persons for the office. Appointment is to be made on the basis of qualifications, without regard to who may have filed the first application.

(b) The “except as otherwise provided by law” clause gives effect to the provisions of treaties between the United States and several foreign countries, recognizing the right of foreign consuls to be appointed administrators of the successions of their deceased nationals. These treaty provisions, of course, constitute the paramount law of the state.

(c) Though the above article uses the words “qualified nominees” in paragraph (2), the intention is that a person who is given the privilege of nominating a suitable person for the office may make only a single nomination.

(d) See, also, Comments under Arts. 3194, 3442, Infra.


author: PONDER, Judge.

text:
    Mrs. Beatrice Michel COLEMAN, Plaintiff-Appellee, v. Roland J. MARQUETTE, Clerk of Court & Jahncke Service, Inc., Defendant-Appellant.
    No. 12629.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Writ Refused July 3, 1979.
    William R. Forrester, Jr., New Orleans, for plaintiff-appellee.
    E. Howard McCaleb, III, New Orleans, for defendant-appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Jahncke Service, Inc., appeals from a summary judgment ordering the cancellation of a materialman’s lien from the mortgage records.

Plaintiff is the owner of some property leased to Halter Marine Service, Inc. The latter purchased some shell from one Celeste who bought it from appellant. Although Halter paid Celeste, the latter did not pay Jahncke; the latter filed a materi-alman’s lien. Plaintiff filed a suit to have the lien cancelled. The court took it under advisement and no decision has yet been rendered.

Later, Jahncke filed suit against Mrs. Coleman asserting enforcement of its lien. Mrs. Coleman filed an exception of lis pen-dens because of the suit still under advisement. The court sustained the exception and dismissed Jahneke’s suit. The First Circuit affirmed the dismissal as to Mrs. Coleman. Jahncke Service Inc. v. Coleman, 356 So.2d 468 (1st Cir. 1977).

Mrs. Coleman then moved for a summary judgment on her petition for cancellation of the lien, stating that there was currently no civil action pending against her to enforce the lien as required by the statute. The court issued an order to cancel the lien.

We find that Mrs. Coleman’s suit is sufficient to interrupt prescription. Jahneke’s suit has been found to be lis pendens with Mrs. Coleman’s suit; they involve the same parties in the same capacities and the same cause of action.

Mrs. Coleman’s suit therefore should have the effect of interrupting prescription for Jahncke under LSA-R.S. 9:4812. Until her suit is disposed of, the notice and the lien cannot be cancelled.

If Mrs. Coleman’s suit did not have the effect of interrupting prescription, Jahncke Service Inc. would be in the position of being unable to file suit to enforce the lien since it would always be met with a plea of lis pendens. We do not believe the statute requires such an anomalous result.

The judgment is reversed at appellee’s costs.

REVERSED.


author: FAULKNER, Justice. BLOODWORTH, Justice

text:
    MULTIPLE BUSINESS INSURANCE SERVICES v. Charles E. CRAWFORD, etc., et al.
    77-766.
    Supreme Court of Alabama.
    April 20, 1979.
    Rehearing Denied June 22, 1979.
    Alfred W. Goldthwaite, Montgomery, for appellant.
    James W. Webb and Dan E. Schmaeling, Montgomery, for Charles Crawford, as Receiver of Vanguard Security Life Insurance Co., et al.
   FAULKNER, Justice.

Crawford as receiver of Vanguard Security Life Insurance Co. brought suit against Multiple Business Insurance Services, Inc. for $103,953.07. Following a hearing without a jury the circuit court entered judgment in favor of the receiver for $54,240.45. Even though this case must be reviewed under the principle of the ore tenus rule, we can find no evidence to support the trial court’s ruling and must therefore reverse.

Multiple Business Insurance Services, Inc. (the Trust) is an insurance trust which sells accident and health insurance and life insurance. In August, 1975, the Trust entered into a contract of reinsurance with Vanguard. That contract was cancelled as of October 31,1976, but with the agreement that the Trust would continue to pay claims incurred prior to October, 1976, but unreported until December 31, 1976.

The Trust and Vanguard had an arrangement whereby the Trust collected premiums and deposited them in an account from which claims would be paid under Vanguard’s name. Funds not needed for the payment of claims were remitted to Vanguard directly. The Trust also maintained several operating accounts of its own. The receiver’s suit asserted that the Trust had received premiums due Vanguard but had not paid the premiums over. The Trust defended on the grounds that the sums due had been properly paid out in claims brought against Vanguard. The suit turned on one question: Did the Trust receive notice to stop paying claims when Vanguard was placed in receivership?

The following information was adduced at the hearing:

On November 29, 1976, Judge Carter of Montgomery County Circuit Court placed Vanguard in receivership and named Charles Crawford, an employee of the State Insurance Department, as receiver. On that same day Crawford went to Vanguard’s offices in Montgomery to advise affected parties of Judge Carter’s order. While in Vanguard’s offices Crawford spoke on the phone with Henry, the trustee of Multiple Business Insurance Services, and informed him that Vanguard was in receivership. Both Crawford and Henry testified about this conversation. Crawford stated that he discussed the receivership “in very general terms” with Henry in conversation which lasted “5, 10 [minutes] at the most” and that he did not remember that much of the details of the discussion. Crawford thought he told Henry not to write any more checks on Vanguard’s account but he did not ask how many accounts might be involved. In Crawford’s own words, “I tried to get the information to him that no claims were to be paid, because [of] the possibility of proration of claims.”

Henry testified that the conversation lasted “2 to 3 minutes . . . not over five” and that Crawford told him to freeze Vanguard’s claims account. Henry stated that the payment of claims as such was not discussed. It was undisputed that the Trust did not receive any written notice or a copy of Judge Carter’s order until January 5,1977, when Henry obtained a copy of the order from the Insurance Department.

Following their conversation on November 29 Henry turned over the Vanguard account, which contained $5,000 to $6,000, to Crawford. The Trust, however, continued to receive premiums which were deposited in the Trust’s other accounts and it continued to pay claims of over $50,000 out of those premiums. During the month of December Henry made several attempts to contact Crawford for further instructions but was unable to do so.

On December 16, 1976, Judge Carter entered an additional order placing a moratorium on the payment of claims. The Trust did not receive a copy of this order, nor was it informed of the order’s existence.

From the above outline of the facts it is apparent that the only attempt Crawford made to notify the Trust to stop paying claims was in a very brief phone call made at a time when confusion reigned in Vanguard’s offices. Crawford admitted that he did not remember the details of his conversation with Henry and at best could only state what he tried to convey. His lack of success is apparent from the fact that the Trust continued to pay claims, even though the Trust did not stand to benefit from these payments, and, in fact, could only incur liability by doing so. Henry complied with his instructions from Crawford by turning over Vanguard’s account. When he tried to get further instructions on the payment of claims he was unable to do so. Crawford never sent the Trust copies of Judge Carter’s orders. Even if it could be said that the Trust was put on inquiry by its knowledge of the receivership, Henry’s attempts to gain information through phone calls and trips to Montgomery were totally unsuccessful through no fault of his own. Under these facts we cannot agree with the trial court that the Trust had no “legally cognizable excuse or justification for nonpayment.” The premiums received were paid out in claims as called for in the parties’ contract. Crawford’s brief and ambiguous phone call did not effectively notify the Trust to stop paying claims. To find that Crawford gave effective notice to the Trust is “plainly erroneous and manifestly unjust,” particularly in light of the Trust’s repeated efforts to obtain instructions on payment of claims. Consequently, the judgment of the trial court must be reversed. Taylor v. Godsey, 357 So.2d 979 (Ala.1978), Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975).

REVERSED AND REMANDED.

EMBRY, J., concurs.

BLOODWORTH, J., with whom TOR-BERT, G. J., and ALMON, J., concur, concurs in the result.

BLOODWORTH, Justice

(concurring in the result).

I concur in the result because it appears to me that the evidence was insufficient, as a matter of law, to find “notice” to appellant to stop paying claims when Vanguard was placed in receivership.

TORBERT, C. J., and ALMON, J., concur.


author: EMBRY, Justice.

text:
    Waring Inge HOLT v. The FIRST NATIONAL BANK OF MOBILE, etc. Waring Inge HOLT et al. v. The FIRST NATIONAL BANK OF MOBILE, etc.
    78-132, 78-133.
    Supreme Court of Alabama.
    May 11, 1979.
    Rehearing Denied June 22, 1979.
    W. Dewitt Reams, Mobile, for appellants.
    James J. Duffy, Jr. and Carroll H. Sullivan, Mobile, for appellee, First Natl. Bank of Mobile.
   EMBRY, Justice.

Appellant, Waring Inge Holt, filed her complaint in 78-132 on 1 April 1976. She and her sister, Ellen Inge Trimble, filed their complaint in 78-133 on the same day. Appellee in each case, The First National Bank of Mobile, filed its motion to dismiss in each ease. These were granted on 14 May 1976. Both actions were dismissed and costs taxed to appellants. On 11 June 1976, appellants moved to set aside the judgments of dismissal and for leave to amend the complaints. On 24 October 1978, some two years and four months later, the circuit court entered a formal order denying appellants’ motions and each filed notice of appeal to this court on 30 November 1978.

The dispositive issue is whether the appeals must be dismissed as untimely filed because appellants’ motions to set aside the judgments and for leave to amend were automatically denied ninety days from 11 June 1976 under the provisions of Rule 59.1, ARCP. We hold they were and dismiss the appeals.

Appellants’ motions to set aside the judgments dismissing the actions and for leave to amend the complaints must be treated as Rule 59(e), ARCP, motions. 3 Moore’s Federal Practice, ¶¶ 15.07[2], 15.10 (1978). See also, Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978). As such, they were automatically denied ninety days after filing. Rule 59.1, ARCP. Since the motions were filed on 11 June 1976, they were effectively denied on 9 September 1976. Appellants failed to give notice of appeal within forty-two days thereafter.

We are, therefore, compelled to dismiss these appeals.

APPEALS DISMISSED.

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


author: PER CURIAM.

text:
    Thomas REED v. STATE of Alabama, ex rel., John Allie JAMES, etc.
    78-165.
    Supreme Court of Alabama.
    May 25, 1979.
    Alberta Murphy and Stanley Jay Murphy, Tuscaloosa, for appellant.
    James T. Upchurch, III, Montgomery, for appellee.
   PER CURIAM.

This is an appeal by Thomas Reed from a quo warranto proceeding contesting his right to serve as a legislator. The basis of quo warranto is Reed’s conviction of an attempt to bribe. Because of our holding reversing Reed’s attempt to bribe conviction and rendering the cause (Reed v. State, 372 So.2d 876 (Ala.1979), the judgment below is reversed and this cause is rendered.

REVERSED AND RENDERED.

BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., not sitting.


author: PER CURIAM. TORBERT, Chief Justice

text:
    ABC BONDING COMPANY, a corp., and A-1 Bonding Company of Montgomery, Inc., a corporation v. MONTGOMERY COUNTY SURETY COMMISSION and State of Alabama.
    78-114.
    Supreme Court of Alabama.
    June 8, 1979.
    Travis Buckley, Laurel, Miss., Elno A. Smith, Jr., and Frank L. Thiemonge, III, Montgomery, for appellants.
    No brief for appellee.
   PER CURIAM.

Appellants, two domestic corporations doing business in Montgomery County, brought this action against the Surety Commission of Montgomery County, Alabama, and the State of Alabama, seeking a declaratory judgment as to the constitutionality of Act No. 98 of the Second Special Session of the 1978 Alabama Legislature. The purpose of Act No. 98 is to revise the existing bail practices in the courts within the Fifteenth Judicial Circuit, to establish a more lenient form of qualifications for property bail, and to establish a board to regulate the licensing of professional bail agents.

Appellants challenge the constitutionality of the Act, contending it is a local act dealing with a subject provided for by general law and thus is violative of § 105, Constitution of Alabama 1901. The trial Court denied declaratory judgment after finding the Act does not conflict in any substantial manner with, but merely enlarges, the general law regarding qualification for bail and' bond requirements for bondsmen [Code 1975, § 15-13-22]. We reverse and remand.

Section 105 of the Constitution of Alabama of 1901 provides in pertinent part:

No special, private, or local law, shall be enacted in any case which is provided for by a general law . . nor shall
the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law.

§ 15-13-22, provides for the qualifications to appear as a surety on an undertaking of bail in this State as follows:

(a) Each person signing as surety an undertaking of bail must be:
(1) A resident of this state; and
(2) Worth, exclusive of property exempt from execution, the amount expressed in the undertaking;
but the court or magistrate, in taking bail, may allow more than two persons to justify severally as bail in amounts less than that expressed in the undertaking, provided the whole is equivalent to two sufficient bails.
(b) The court or magistrate in taking bail, in lieu of the foregoing, may allow a corporation, foreign or domestic, qualified to do a bonding business in this state and authorized to execute the undertaking of bail to execute such bail.
(c) Every person engaged in the business of making bail bonds and charging therefor, except corporations qualified to do a bonding business in this state, shall be required, in addition to all other requirements of this section, to furnish a bond with corporate surety in the amount of $25,000.00 ($10,000.00 in Cullman county), to be apiproved by the probate judge of each county in which such person engages in such business, conditioned to guarantee the payment of all sums of money that may become due the state or any political subdivision thereof by virtue of any judgment absolute being rendered against such person on a forfeiture of bail.
(d) Only one such bond set forth in subsection (c) of this section shall be required in each county where such person does business, and the liability of the surety company executing a bond under this section shall not exceed the face amount of such surety bond; provided, however, that the bond may be cancelled as to any future liability at any time by the surety’s giving 30 days’ written notice of such cancellation to the probate judge of the county in which the bond is filed.
(e) When there is a reasonable doubt as to the sufficiency of the bail, they may be required by the court or magistrate to answer fully on oath as to their qualifications.

No purpose would be served by setting out at length the provisions of Act No. 98. As noted, Act No. 98 applies only to the Fifteenth Judicial Circuit and is an extensively detailed provision relating to qualifications to act as surety on a bail bond. It is only necessary to point out a few of the pertinent sections of Act No. 98 and to show how they directly conflict with the existing general law in this area. § 15-13-22.

Article 1, § 2, of the challenged Act, styled “Qualifications for Property Bail for the Fifteenth Judicial Circuit,” covers the same subject matter as Code 1975, § 15-13-22. In comparison, however, the challenged Act contains a material variation in that the person who seeks to be a surety on a bail bond must set forth specific information in the form of an affidavit, which is attached to and made a part of the Act, and is presented with the application for bail bond. Additionally, under Article 1, § 3, of the challenged Act, styled “Qualifications for Bail Bond Company in the Fifteenth Judicial Circuit,” and Article 1, § 4, of Act No. 98, styled “Transfer or Merger, When Allowed,” attempts are made to establish substantially different and additional qualifications for a bail bondsman doing business within the Fifteenth Judicial Circuit as compared to those requirements of bondsmen doing business in other counties of the State. Furthermore, bail bondsmen doing business in the Fifteenth Judicial Circuit are subject to the authority of a Surety Commission under Article 2 of the challenged Act, while no other bail bondsmen in the State are subject to such a Commission.

In view of the existence of Code 1975, § 15-13-22, it is beyond doubt that the challenged Act, which only applies to the Fifteenth Judicial Circuit, is a local Act dealing with a subject matter already provided for by general law. This is in clear violation of § 105; therefore, we reverse and remand.

REVERSED AND REMANDED.

All the Justices concur except TORBERT, C. J., who concurs specially, and MADDOX, J., not sitting.

TORBERT, Chief Justice

(concurring specially):

I agree to reverse and remand; however, I see no need to consider whether the Act violates § 105 of the Constitution since, as contended by appellants, the Act was passed in the House of Representatives in violation of § 76 of the Constitution.

Article IV, § 76 of the Constitution provides in pertinent part: “When the legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session, except by a vote of two-thirds of each house.” The subject of the Act was not designated in the governor’s proclamation calling the special session in which this Act was passed; therefore, the Act must have been passed by “a vote of two-thirds of each house.” The Act was validly passed in the Senate by a vote of twenty-five to none. However, in the House of Representatives, the vote was eleven in favor of the Act and none against. Therefore, ninety-four members of the House either abstained from voting or were absent.

The issue as to the constitutional validity of the action by the House of Representatives turns upon whether the vote of eleven to none constitutes two-thirds of that house.

Section 52 of the Constitution provides that a majority of each house shall constitute a quorum to do business. In this section the word “House,” as thus employed, means the entire membership of each body, i. e., the maximum number of members of each body of which a majority shall constitute the House for the transaction of business. State ex rel. Meyer v. Green, 154 Ala. 249, 46 So. 268 (1908). The membership of the House of Representatives being 105, a quorum would then be not less than fifty-three, the minimum number necessary to transact business.

In interpreting the provisions of § 76, this Court has heretofore considered the meaning and effect of its provision requiring action by a “vote of two-thirds of each house.” The word “House” in § 76 means a quorum as defined by § 52. Farmers’ Union Warehouse Co. v. McIntosh, 1 Ala.App. 407, 56 So. 102 (1911); Opinion of the Justices, 228 Ala. 140, 152 So. 901 (1934); State ex rel. Meyer v. Greene, supra.

The Journal of the House of Representatives for the 5th legislative day (House Journal, Second Special Session 1978, p. 444) shows that the presence of a quorum was ascertained when final action was taken. However, the number of members present which constituted that quorum was not noted in the Journal. Assuming that there was only the minimum number necessary to constitute a quorum (53), the eleven votes on this bill is not the requisite two-thirds vote necessary to validly enact this legislation.


author:
BLOODWORTH, Justice.
      EMBRY, Justice

text:
    William D. GUILFORD, etc. v. SPARTAN FOOD SYSTEMS, INC., a corporation, et al.
    78-162.
    Supreme Court of Alabama.
    June 15, 1979.
    James R. Bowles, Tallassee, for appellant.
    Thomas B. Huie, Birmingham, for appel-lees.
   BLOODWORTH, Justice.

This is an appeal from the granting of defendants’ Rule 12(b)(6), ARCP, motion to dismiss for failure to state a claim upon which relief can be granted. We affirm.

The complaint in this action was filed March 8, 1978. On April 11, 1978, defendants filed a Rule 12(b)(6) motion to dismiss which the trial court granted May 16,' 1978, allowing plaintiff ten days in which to amend his complaint. Plaintiff filed an amendment to the complaint on May 25, 1978. From the complaint as amended, it appears that on September 20, 1977, plaintiff and defendant Spartan Foods entered into a written contract whereby plaintiff agreed to paint a Hardee’s restaurant according to certain plans and specifications in return for the promise of Spartan Foods to pay $700. Plaintiff alleges that at the time of the signing of the contract defendant William Linder, Jr., acting within the line and scope of his authority as agent for Spartan Foods, represented to plaintiff that in lieu of plaintiff providing the insurance policies required by Section 13 and Section 14 of the contract that defendant Spartan Foods would deduct two percent (2%) of the contract price and provide the insurance policies required by the contract. Plaintiff also alleges that the representations made by defendant William Linder, Jr., were false, that plaintiff believed these representations, and that in reliance upon them plaintiff did not purchase the Workmen’s Compensation and general liability policies required by Sections 13 and 14 of the contract. Plaintiff further alleges that while performing the contract he fell from a ladder and broke his left foot, suffering as a proximate consequence permanent disability, pain and mental anguish, expenses for medical care, and loss of earnings. Defendants filed a second Rule 12(b)(6) motion to dismiss which the trial court granted on July 6, 1978, and which also allowed plaintiff ten days to further amend the complaint. Plaintiff filed no subsequent amendments to the complaint, and this appeal from the order of the court granting defendants’ Rule 12(b)(6) motion was taken August 7, 1978.

Defendants contend that the order dismissihg the complaint with leave to amend is not a final order capable of supporting an appeal. Although there are several cases which hold that, under the Federal Rules of Civil Procedure, an order dismissing a complaint in the absence of an order dismissing the action is interlocutory [e. g. Jung v. K & D Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958); Midwestern Dev., Inc. v. City of Tulsa, 319 F.2d 53 (10th Cir. 1963), cert. denied, 379 U.S. 989, 85 S.Ct. 702, 13 L.Ed.2d 610 (1965); Tietz v. Local 10 of International Association of Bridge, Structural and Ornamental Iron Workers, 525 F.2d 688 (8th Cir. 1975)], where the plaintiff cannot amend or declares his intention to stand on his complaint such an order then becomes final and appealable. Borelli v. City of Reading, 532 F.2d 950 (3rd Cir. 1976).

Plaintiff was given leave to amend his complaint within ten days of the order dismissing the complaint. His failure to submit an amended complaint within the specified period coupled with his filing an appeal is a sufficient manifestation of his intention to stand on his complaint.

Moreover, the primary basis for those cases which hold that an order dismissing a complaint is not an appealable order is Rule 58, FRCP, which reads as follows:

“Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.”

As the Committee Comments to Rule 58, ARCP, indicate, the Alabama Rule “departs substantially in form from the Federal Rule in order to clarify the procedure as to rendition of judgments” and the language of the Alabama Rule “emphasizes the intention to do away with unnecessary technicalities heretofore common in orders, judgments, and decrees.” Rule 58(b), ARCP, states that “[t]he judgment or order or the minute entry thereof will be sufficient if it indicates an intention to adjudicate considering the whole record, and if it indicates the substance of the adjudication.” (Emphasis supplied.) We find that the requisite intention to adjudicate was present in the instant case.

Since we consider that the order dismissing the complaint will support the appeal, we now proceed to a consideration of the merits.

Plaintiff alleges that during the negotiations between the parties, defendant Linder made certain statements to the effect that defendant Spartan Foods would assume responsibility for obtaining Workmen’s Compensation and general liability insurance. These statements were not incorporated into the written contract Which plaintiff attached to his complaint as an exhibit.

The rule of our cases is that all prior negotiations are merged into the written contract, which purports to cover the entire transaction. Long v. Hirs, 270 Ala. 131, 116 So.2d 605 (1959). Thus, Sections 13 and 14 of the written contract, which specify that plaintiff will secure certain insurance policies, supersede any discussions between the parties during the negotiation of the contract.

In brief, counsel for plaintiff concedes that, as an employer, he would not have been covered under an insurance policy providing Workmen’s Compensation benefits as required by Section 13 of the contract. However, he contends that he would have been covered under a comprehensive bodily injury and property damage liability insurance policy covering, “all contracting operations, Independent Contractors, Completed Operation, Specific Hold Harmless and/or Contractual liability, and Automotive and Construction Equipment Liability Insurance.”

We cannot agree. Because such a policy by its very nature would serve to protect plaintiff and defendant Spartan Foods as co-insureds from liability against losses arising from injury or damage to a third person or his property, any injury sustained by the plaintiff-insured would not have been covered. Thus, even if prior negotiations were not merged in the written contract, it appears that plaintiff could still prove no set of facts in support of his claim which would entitle him to relief. Trabits v. First National Bank, 295 Ala. 85, 323 So.2d 353 (1975).

Therefore, the order of July 6, 1978, dismissing the complaint for failure to state a claim on which relief can be granted must be affirmed.

MOTION TO DISMISS APPEAL DENIED.

AFFIRMED.

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

TORBERT, C. J., and FAULKNER, EM-BRY and BEATTY, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent. Were I able to conclude, as does the majority, that there is an appealable judgment extant in this case, I would also affirm. I cannot, hence this dissent.

This is an attempt upon the part of William D. Guilford, d/b/a Clara-Gene Painting Company, to appeal from an order granting a Rule 12(b)(6) motion to dismiss his amended complaint. The order allowed Guilford ten days to further amend his complaint, which he failed to do. There was no motion by defendants Spartan Food Systems, Inc. and William Linder, Jr., to dismiss the action under the provisions of Rule 41(b) ARCP, for failure of plaintiff to prosecute or to comply with the rules of civil procedure, or the order of the court granting the ten days for further amendment.

The question before us, one of first impression, is whether an order dismissing a complaint with leave to amend is an appeal-able one. I would hold it is not and dismiss the appeal.

Although this court has not previously determined whether under the Alabama Rules of Civil Procedure an order dismissing a complaint with leave to amend, is an appealable one, the United States Supreme Court in Jung v. K & D Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958), held that, under the Federal Rules of Civil Procedure, dismissal of a complaint with leave to amend, pursuant to a Rule 12(b)(6), FRCP, motion, does not constitute a final judgment. The United States Supreme Court noted in Jung that this presents a situation similar to that of an order sustaining a demurrer, with leave to amend rather than one smacking of finality as to disposition of the action itself. Under our former practice we considered such an order to be interlocutory and, therefore, incapable of supporting an appeal in the absence of another order granting nonsuit providing for a final disposition of the action on account of adverse rulings. Code 1940, Tit. 7, § 819, reads as follows:

“If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, ruling or decision may be reserved for the decision of the appellate court by bill of exceptions or by appeal on the record as in other cases.”

Under this section, in order to obtain review of adverse rulings on the pleadings, plaintiff was required to suffer a nonsuit. Although Tit. 7, § 819, was not reenacted in the Code of 1975 (quite likely because there was no need for this section after the adoption of the state rules of civil and appellate procedure), under the Alabama Rules of Civil Procedure and the Rules of Appellate Procedure the plaintiff could have obtained a result similar to that formerly available under § 819 and as discussed in Buchanon v. City Board of Education, 288 Ala. 474, 262 So.2d 296 (1972); Bass v. City of Enterprise, 286 Ala. 522, 243 So.2d 359 (1970); and Cooper v. City of Fairhope, 263 Ala. 619, 83 So.2d 321 (1955). When a motion to dismiss a complaint is sustained and the plaintiff does not desire to amend, under our present procedure he should announce his election to stand on his pleading, allow a final judgment to be entered dismissing the action (Rule 41, ARCP) on account of adverse rulings on the pleadings, and then appeal from that order or judgment pursuant to Rule 4(a)(1), ARAP. Cf. Midwestern Dev., Inc. v. City of Tulsa, 319 F.2d 53 (10th Cir., 1963), cert. denied 379 U.S. 989, 85 S.Ct. 702, 13 L.Ed.2d 610 (1965).

In the instant case, the trial court’s 6 July 1978 order dismissing the complaint with leave to amend is interlocutory because the order did not direct that all relief be denied but left the suit pending for further proceedings either by an amendment of the complaint or entry of final judgment.

Since the trial court’s order that is the subject of this appeal is not final, I would dismiss this appeal.

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

      . Sections 13 and 14 of the. written contract in which plaintiff is referred to as “the subcontractor” and defendant as “the contractor” are as follows:
      “13. ‘The subcontractor shall maintain such insurance as will protect him and the contractor from claims under Workmen’s Compensation Acts and from any other claim for damages for personal injury including death, which may arise from operations under the contract.’
      “14. ‘The subcontractor shall also maintain comprehensive bodily injury and property damage liability insurance which will cover all contracting operations, independent contractors, completed operations, specific hold harmless and/or contractual liability, and automotive and construction equipment liability insurance.’ ”

      . It is not necessary to decide whether the 42-day period within which an appeal must be taken begins to run from the date of the entry of the order granting a motion to dismiss where no amendment is forthcoming or if it begins to run from the end of the 10-day period within which a party has expressly or automatically, under Rule 78, ARCP, been granted leave to amend. In the instant case the appeal was taken within 42 days from the date the order was entered.


text:
    Wendell DOWDY v. GILBERT ENGINEERING COMPANY, a corporation.
    77-633.
    Supreme Court of Alabama.
    June 22, 1979.
    Earl D. McNeal, Huntsville, for appellant.
    E. Cutter Hughes, Jr., and James E. Davis, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee.
   EMBRY, Justice.

Plaintiff-appellee, Gilbert Engineering Company, brought this action on 5 November 1975 against Thomas E. Lankford and defendant-appellant, Wendell P. Dowdy, for money owed and work and labor performed. Lankford and Dowdy filed an answer to the complaint and on 10 June 1976 the trial court entered a pretrial order giving the parties leave to proceed with further discovery provided it was completed at least ten days prior to trial.

The trial was set for 17 April 1978. On 14 April, Dowdy served on Roy T. Gilbert, owner of appellee company, a subpoena duces tecum demanding “all business records, notations in writing regarding Gilbert Engineering Company and any and all clients doing business with Gilbert Engineering Company from 1973 through 1977.” Upon motion of appellee, the trial court quashed the subpoena duces tecum. On 17 April, the first day of trial, Dowdy moved for a continuance on the grounds that a conflict of interest had arisen between the two defendants, who had employed the same counsel, and Dowdy had been forced to retain new counsel on 16 April. The court overruled the motion for continuance, the case was tried before a jury, which returned a verdict in favor of Gilbert Engineering, and judgment was entered accordingly. On this appeal from that judgment, Dowdy urges as error the order of the trial court denying his motion for a continuance and the order granting plaintiff’s motion to quash the subpoena duces tecum.

Dowdy contends the trial court abused its discretion in not granting a continuance because of his change of counsel compelled by a conflict of interest.

In State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538 (Ala.1977), cert. denied 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978), this court stated:

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

Despite the fact that the conflict of interest was discovered and discussed more than three weeks before trial, when Gilbert was deposed, the attorney originally employed by both defendants did not relinquish the case to Mr. Shipman, Dowdy’s new attorney, until the evening before trial. No reason for this delay has been suggested. In addition, it appears that Shipman was at least somewhat familiar with Dowdy’s case prior to being formally retained because Shipman was present when Gilbert was deposed. The probability of Shipman’s knowledge of the law and the facts of the case is also reinforced by the fact that he filed a subpoena duces tecum two days prior to the date on which he contends his representation of Dowdy was confirmed. Moreover, there is evidence of record that Gilbert Engineering would have been prejudiced by a continuance, in part because out-of-town witnesses were present.

Thus, under the circumstances of this case the contention that the trial court abused its discretion in not granting the continuance is without merit.

Dowdy also contends that granting Gilbert Engineering’s motion to quash the subpoena duces tecum was such an abuse of judicial discretion as to constitute reversible error. Whether a subpoena duc-es tecum should be enforced is, in the first instance, a question for the trial court. An order to quash should be reversed only for abuse of discretion. Premium Service Corp. v. Sperry & Hutchinson Co., 511 F.2d 225 (9th Cir. 1975). A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision. Ibid.

We find no such abuse of discretion in this case. Dowdy’s subpoena duces te-cum served three days prior to trial was clearly in violation of the pretrial order which stated that “the parties are given leave to proceed with further discovery provided it is completed at least 10 days prior to trial ” (emphasis added). In addition, the subpoena duces tecum was served late Friday afternoon at the close of the business week immediately preceding trial, and it requested production of all business records regarding Gilbert Engineering and all its clients from 1973 through 1977. There is evidence of record that it would have taken several months to compile the data requested and that the appellant had previously obtained some of the items requested. In U. S. v. Watchmakers of Switzerland Information Center, Inc., 27 F.R.D. 513 (S.D.N.Y.1961), the United States District Court held in a similar situation that, in view of the time necessary to compile the information requested, the motion to quash was properly granted. Therefore, we find the trial court in the instant case did not abuse its discretion and the motion to quash the subpoena duces tecum was properly granted.

There being no error in the rulings complained of, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Mary L. HINES v. Virginia Nell CARR, First Southern Federal Savings & Loan Association, Inc., and Home Savings & Loan Association, Inc.
    77-653.
    Supreme Court of Alabama.
    June 22, 1979.
    John M. Tyson, Marvin J. Wehl, Jr., John M. Tyson, Jr., Mobile, for appellant.
    Robert E. Gibney of Kilborn & Gibney, Mobile, for appellee, Virginia Nell Carr.
   ALMON, Justice.

This appeal is from a judgment of the Circuit Court granting declaratory and in-junctive relief. We affirm.

Barbara T. Julien deposited three separate sums of money in two different savings and loan institutions. These deposits were made in the name of Barbara T. Ju-lien or Virginia N. Carr or Mary L. Hines with right of survivorship. When Ms. Ju-lien died, Ms. Carr filed an action seeking a temporary restraining order prohibiting the two savings and loan associations from disbursing these funds. Ms. Carr also sought a declaratory judgment as to her rights and interests in the deposits as against the other survivor, Ms. Hines. The temporary restraining order was granted and the trial on the merits was consolidated with the hearing for a preliminary injunction.

The case was tried on a stipulation of the parties and additional testimony. The trial court issued findings of fact and conclusions of law, and the effect of the final judgment was that the funds were the equal property of Ms. Carr and Ms. Hines. It appears from the record that Ms. Hines attempted to show that the decedent, Ms. Julien had made an inter vivos gift of these deposits to her alone, however, the trial court foreclosed this attempt by sustaining Ms. Carr’s objections. The trial court felt that Code 1975, § 5-16-45, was dispositive of the rights asserted by the appellant. We agree with that determination.

In Street v. Hilburn, 295 Ala. 232, 326 So.2d 724 (1976), this Court determined that Code 1975, § 5-16-45, was “clear in its meaning and intent that the survivor of a joint bank account is entitled to the proceeds.” The operation of the statute is expressly extended to situations where a deposit is made in the names of more than two persons if there is a provision for sur-vivorship, and we feel that the judgment of the trial court is entirely consistent with this statute.

The appellant argues that this statute does not preclude post-death inquiries into the ownership of funds in a joint savings and loan account. However, we are convinced that this statute was enacted to foreclose these inquiries, absent allegations of fraud, duress, mistake, incompetency or undue influence. See, McEniry v. Coats, 333 So.2d 568 (Ala.1976).

For the reasons stated, this decision is in all respects affirmed.

AFFIRMED.

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