author: SCHOTT, Judge.

text:
    Mary Ellen Sheehan PEREZ v. Chalin O. PEREZ and the Whitney National Bank.
    No. 9320.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1978.
    Gibson Tucker, Jr., New Orleans, for relator.
    Edmond H. Fitzmaurice, Jr., New Orleans, for respondent.
    Elizabeth Ridnour Haak, New Orleans, for the Whitney Nat. Bank.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

We grant certiorari in order to consider a temporary restraining order issued by the trial court on January 3, 1978, on the application of Chalin 0. Perez, respondent. Because this is the fourth time that this matter has been before us within the fortnight and because the exigencies of the situation on each other occasion when the matter was presented to us prevented us from elucidating the reasons for each previous action taken, we deem it appropriate to present here a complete background of the matter, including each one of the previous writs granted by us.

On December 7,1977, a notice of levy was served by the United States Internal Revenue Service (IRS) on the Whitney National Bank (Whitney) with respect to accounts 42-171-040 and 42-168-773. The levy was for $23,249 owed by taxpayers Chalin O. and Mary Ellen Perez. On December 8 the Whitney addressed a letter to Mary Ellen and Chalin O. Perez advising them of the levy and notifying them that the bank would be unable to honor withdrawals which would reduce the balance in account 42-171-040 below $11,624.50, representing half of the amount sought under the levy.

On December 14, 1977, Mrs. Perez filed in the District Court a petition for temporary restraining order and temporary injunction. In her petition she alleged as follows: She is a resident of the Parish of Orleans and Whitney is a banking corporation with its principal place of business in the Parish of Orleans. She and Mr. Perez were married and lived together in Plaquemines Parish in 1973, and until July 22, 1974, when he filed a suit for separation from bed and board in Plaquemines Parish, and this suit ultimately resulted in a judgment of divorce in January, 1977. From January, 1973, to the date of the filing of her petition for injunction Perez has continued to control the community which was acquired during the marriage between the parties. Her sole benefit from that community has been $3,000 a month, being paid by Perez to her under an order of the court in the separation and divorce proceedings. On November 1,1977, Perez by pleadings in those proceedings secured a termination of that allowance so that Mrs. Perez receives no allowance from the income of the community of acquets and gains for her maintenance and support since that date. During the entire period of time from January 1, 1973, all proceeds of the community have been paid to and are retained by Perez. Mrs. Perez accumulated on deposit with Whitney in her account 42-171-040 a balance in excess of $12,000, all of which were received by her under the order of court referred to for her maintenance and support, and which are her separate funds forming no part of the community. At the time of filing for the separation from bed and board in July, 1974, Mr. Perez had on deposit in his account at the Whitney No. 42-168-773 a sum in excess of $50,000, composed of community funds, and at no time has the balance in his account gone below the sum of $23,249. The community has not yet been partitioned. In addition to the accounts specifically mentioned, there are other accounts in the Whitney in the name of Mr. Perez for which deposits are well in excess of $23,249 and which are assets of the community. The bank has proposed to take half of the levy from her account and half of the levy from his account, notwithstanding the fact that there are ample funds on deposit in the name of Perez and which belong to the community for the payment of this tax liability. The community has a value in excess of $2,000,000. During the calendar year 1976, according to an income tax return prepared by certified public accounts for Mr. Perez there was paid to the community oil royalties of $186,000, which funds have been received by and are retained by Perez. On the basis of these, allegations the trial court on December 14 granted a restraining order providing as follows:

“IT IS ORDERED that a temporary restraining order issue herein restraining and enjoining the defendant, the Whitney National Bank, from paying the levy of the Internal Revenue Service served upon it out of the funds on deposit to the account of Mary Ellen Perez until it will have exhausted all funds on deposit to the credit of Chalin O. Perez, on her furnishing bond, with good and solvent surety, conditioned as the law directs, in the amount of $1,000.00.”

A rule for a preliminary injunction was issued returnable on December 16, 1977, continued thereafter to December 21.

Perez responded with a declinatory exception of lis pendens, improper venue and lack of jurisdiction over the subject matter of the action, along with peremptory exceptions of no right of action, no cause of action and res judicata. The basis for the exception of lis pendens was the fact that there was presently pending in the 25th Judicial District Court for the Parish of Plaquemines a partition proceedings between these parties. Basis for the exception of venue was that since Mr. Perez was a defendant he should be sued in the parish of his domicile and the basis of the exception of lack of jurisdiction was that the court had no jurisdiction to interfere in any way with the Whitney’s handling of a levy served on it by the IRS.

The trial judge on December 21 ordered that the case be transferred to the 25th Judicial District Court, and in his oral reasons from the bench he stated that he believed the court lacked jurisdiction as well as venue in that the controversy properly belonged in the partition suit pending in Plaquemines Parish. .

On the application of Mrs. Perez to this: court for writs, in proceedings No. 9295;on the docket of this court, we of mandamus directed to judgment of December 21, transferring the case to Plaquemines Parish for the reasons:

“A suit by a New Orleans resident seeking to enjoin a New Orleans bank from carrying out its proposal to pay a tax levy partially out of an account in her name rather than entirely out of an account in her former husband’s name is properly cognizable in Orleans Parish.”

We annulled and set aside the judgment of December 21, specifically overruling the exception of improper venue.

When the matter was returned to the District Court on December 23, the trial court maintained the exception of jurisdiction and dismissed Mrs. Perez’ suit. In oral reasons for this judgment the trial judge stated:

“. . . I sincerely believe that this case properly belongs in the Parish of Plaquemines, primarily because this litigation, particularly Article X of plaintiff’s petition calls upon this court to determine the status of this property, as to whether it is community or separate.

On December 23,1977, after writ application by Mrs. Perez No. 9298 on our docket, we granted certiorari in order to consider this judgment of December 23, maintaining Mr. Perez’ exception of jurisdiction and dismissing her suit for injunctive relief. We vacated and set aside the judgment of December 23 and overruled Mr. Perez’ exception to the jurisdiction. We also extended the temporary restraining order issued by the trial court to the Whitney for a period of 10 days and remanded the case to the trial court for further proceedings.

On December 30, 1977, the trial court took up Mr. Perez’ peremptory exceptions and maintained the exceptions of no right and no cause of action, dismissing her suit. In his reasons for judgment the trial court stated that she had no right of action to bring the suit because she had acquiesced in the tax assessment against her and Mr. Perez, signing the papers and acknowledging that she was a tax debtor. The trial court indicated that she was thereby es-topped from challenging the bank’s right to pay half of the assessment out of her account. As to no cause of action, the trial court indicated that he saw no irreparable injury resulting from a failure to issue an injunction. For the third time Mrs. Perez filed application for supervisory writs (Docket No. 9318), and in response thereto on December 30, 1977, we granted certiora-ri, vacated and set aside the trial court’s judgment of December 30, dismissing Mrs. Perez’ suit and overruling Mr. Perez’ exceptions of no right and no cause of action. Since the trial court had on December 30 overruled the exception of lis pendens, that portion of the judgment was left intact. The temporary restraining order was again extended for 10 days on December 30.

We now have before us Mrs. Perez’ application for writs with respect to an order issued by the trial court on January 3,1978, at Mr. Perez’ behest addressed to the Whitney as follow:

“IT IS FURTHER ORDERED that a temporary restraining order issue herein restraining and enjoining the defendant, the Whitney National Bank, from paying the levy of the Internal Revenue Service in any other fashion than by taking an equal amount from the account of Mary Ellen Perez and the account of Chalin O. Perez, on Chalin O. Perez’s furnishing bond, with good and solvent surety, conditioned as the law directs, in the amount of $1,000.00.”

This order was issued in response to a petition by Mr. Perez styled “Third Party Demand for Injunctive Relief.” Therein he alleged: In September, 1977, he and Mrs. Perez entered into a settlement agreement with IRS by which $18,333 plus interest was assessed to them. Because of the previous proceedings the Whitney has been restrained from paying the levy out of Mrs. Perez’ funds until his funds are exhausted, so that Whitney is about to pay the entire amount from his funds. He is entitled to similar injunctive relief as that afforded Mrs. Perez under principles of equal protection of the laws. She owes the taxes to the same extent as he does under the laws of the United States. Since payment is imminent out of his funds he is entitled to a hearing on the same rule brought by her for preliminary injunction as to why half of the funds would not be taken from her account.

The order complained of in this writ application is inconsistent with our previous order. The sense of our previous order was that Mrs. Perez indeed stated a cause of action for injunctive relief and if she proved her allegations she was entitled to a preliminary injunction to the same effect as the restraining order, i. e., no funds would be taken out of her account until funds in his account were exhausted up to the amount of the levy. The restraining order before us flies in the face of this previous writ in that it orders the bank not to pay the levy in any manner other than half from each of the accounts.

We concluded when the first writ application was filed in these proceedings that they were being unnecessarily complicated by the references to the suit pending in Plaquemines Parish and the laws of the United States and regulations of the Internal Revenue Service having to do with income taxes. At the outset this was a question of a New Orleans resident being advised by her New Orleans bank that it had elected to take, and was about to take, a sizable sum of money out of her account. It hardly seems debatable that the court in her domicile has venue and jurisdiction over that question (despite its lack of jurisdiction to interfere with the IRS), and it was on this basis that the first two actions were taken by us.

With respect to the third writ issued by this court, we were confronted with the question of whether Mrs. Perez had a right of action or stated a cause of action for the relief she sought. Clearly, she had a right of action since she was seeking a remedy in the court with respect to her funds. The exception of no right of action addresses itself to the standing of the plaintiff to bring the suit. It can hardly be debated that Mrs. Perez had such a standing since it was her money in her bank account involved in the case.

As to the exception of no cause of action, she alleges that she has in her account just a little over the amount the Whitney proposes to withdraw to satisfy the IRS lien, and that all these funds had been accumulated from alimony payments made to her. In the meantime, there was a huge community under the dominion of Mr. Perez, including the other bank account which had been specifically attached alleged to have more than sufficient funds with which to pay the lien, and further that he had accumulated in one year $186,000 of community funds. Obviously, she has an interest in these funds and her interest was alleged to be more than sufficient to pay the tax lien out of those funds as opposed to her separate property. The question is, does she have a cause of action to seek a judgment of the court to enforce fairness with respect to this proposal by the Whitney. Under her allegations the Whitney’s proposal is intrinsically unfair in that it would make her pay 75% of the levy (50% from her separate account plus half of the other 50% from the community account in her husband’s name). If she had substantial other funds under her control she might not be entitled to injunction because the community settlement would ultimately remedy the Whitney’s activity. But her allegations are that she has no other significant cash under her control, although she is bound to have coming to her a substantial sum of money out of the $2,000,000 community being administered by her husband. When that community is settled either voluntarily or by judgment of the court in Plaquemines Parish, the necessary adjustments can be made in order to compensate Mr. Perez for the half of the tax levy which Mrs. Perez may owe. But in fairness, we fail to see why the Whitney should deplete all of her separate funds to pay half of the taxes incurred by the community when the Whitney is alleged to be holding a substantial community account and her interest in the community is way over and above what is required to pay this levy.

Accordingly, the temporary restraining order issued by the trial court on January 3, 1978, on the petition of Chalin O. Perez is dissolved and the case is remanded to the trial court for further proceedings.

      . It will be noted that this restraining order does not attempt to restrain the Whitney from complying with the IRS levy by paying to the IRS the amount demanded.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Marvin MYERS, Jr. v. STATE of Mississippi.
    No. 49848.
    Supreme Court of Mississippi.
    Jan. 11, 1978.
    Dodson, Kelly & Butts, Robert J. Kelly, Oxford, for appellant.
    A. F. Summer, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, WALKER and BROOM, JJ.
   SUGG, Justice,

for the Court:

This is the third appeal by defendant. His first conviction was reversed because a motion by defendant’s court-appointed counsel to withdraw was heard out of defendant’s presence. Myers v. State, 254 So.2d 891 (Miss.1971). Defendant’s second conviction was reversed because he was effectively denied the right to counsel of his choice and because his motion to instruct the jury to disregard the testimony of a witness was overruled. Myers v. State, 296 So.2d 695 (Miss.1974).

Defendant assigns as error that he was denied counsel of his choice in his third trial. With this we concur and reverse for a new trial.

On April 7,1975, the first day of the third trial, defendant made the following motion before the jury was empanelled:

COUNSEL FOR THE DEFENDANT (Mr. Kelly): Your Honor, on behalf of the Defendant, Marvin Myers, I move the Court to permit John B. Farese, Sr. and any other member of his firm that may be helpful to him to represent the defendant in this charge of murder of Larry Cox, the reasons being that at the first trial Mr. Myers was represented by the Wilroy & Hagan Firm from Hernando. After the conviction by the jury and sentence of the Court, apparently a group of citizens from DeSoto County, Mississippi, hired John B. Farese and his law firm to represent Marvin Myers on appeal to the Mississippi Supreme Court. The Farese firm did represent Mr. Myers on that appeal and were successful in having the sentence and conviction reversed and returned to this court for trial. John B. Farese and his son, as I understand it, both represented Mr. Myers in the Supreme Court at that time. Prior to the second trial, Mr. Myers moved this Court by me to reinstate John B. Farese as his counsel in this case. At that trial the Court permitted John B. Farese to represent Marvin Myers but excluded John Boothe Farese, the son, from representing Marvin Myers, because John Boothe Farese was then the County Prosecuting Attorney for Benton County, which is not a part of the Seventeenth Judicial District.
Mr. Myers was again convicted and sentenced at the second trial, and I represented him on appeal to the Mississippi Supreme Court. The Supreme Court once again reversed the conviction and sentence and remanded the case to this court for another trial. We are now ready to proceed on the third trial of this case. Prior to this trial, the Court through its own inquiry through the office of the District Attorney, Gerald Chatham, and myself inquired of the Farese Law Firm to determine their willingness and ability to represent Marvin Myers in this case. There has also been contact between the Farese Law Firm and Marvin Myers relating to this case.
In support of Mr. Myers’ motion, I would submit a letter dated July 10,1974, from John B. Farese to Marvin Myers, Jr. In that letter Mr. Farese indicates that he would be willing to participate in the trial of this case. Pursuant to the direction of the Court, on November 26, 1974, I wrote to John B. Farese, and I stated to him that I was writing at the Court’s direction advising him that I would be appointed to represent Marvin Myers unless an eligible member of his firm announcés to the Court that he or she would be Marvin Myers’ attorney; that an eligible member of that firm would be anyone other than John B. Farese. I would submit a copy of that letter in support of the motion.
On November 27, 1974, Mr. Farese wrote a letter to the Court stating that he had been contacted by me by telephone and by letter. He claims that because of his trial schedule that it would be impossible for him to try this case without the services of his son, John Booth Farese. He further states, that at the time his firm represented Marvin Myers, John Booth Farese was not the County Prosecuting Attorney of Benton or any other county. John Booth Farese had not been elected to office and he had done a great deal of preparation in the case. Mr. Farese seemed to feel that under the cannons of ethics that John Booth Farese was morally and legally bound to complete his representation of Marvin Myers. I submit a copy of that letter in support of the motion.
On January 7, 1975, I received a letter from Mr. Chatham, the District Attorney, advising me that I was the legal representative of Marvin Myers at this trial; that Mr. Chatham had discussed the matter with the Court and that John Booth Farese is officially barred from participating in the representation of Marvin Myers due to the affirmation of the Supreme Court. I submit that letter as an Exhibit to the Motion. Your Honor, those are all the letter documentations that I would submit at this time. In fairness to the State and the Court, I do have a copy of the letter dated December 4, 1974, from the Court to A. F. Summer, Attorney General, which, if the Court wishes, I could include, but I do not have the response of the Attorney General.

Defendant testified in support of his motion that he wanted John B. Farese and his law firm to represent him and that Mr. Farese (Sr.) had agreed to represent him. Various letters were offered as exhibits to the motion. Exhibit I was a letter dated July 10, 1974 signed by John B. Farese directed to defendant in which he stated that he would be happy to have Robert J. Kelly assist in the retrial of the case and that he and Mr. Kelly would visit defendant, who was in the Mississippi State Penitentiary at Parchman, to see about an early setting for retrial. On November 26, 1974, J. Kelly wrote John B. Farese that Kelly would be appointed to represent Myers unless an eligible member of the Farese firm announced to the court in writing that he would represent Myers. He further stated that an eligible member of the firm would be any member of the firm other than John Booth Farese, who was County Prosecuting Attorney of Benton County. In response thereto John B. Farese wrote the following letter dated November 27, 1974 to the circuit judge:

As you probably know, I received a telephone call from Gerald Chatham regarding this case. I also received a letter, dated November 26th, from Robert J. Kelly, a copy of which is enclosed so there will be no question about what he has told me.
Because of the tremendous trial schedule which I have facing me for the next six or eight months, it will be virtually impossible for me to try this case without the services of my son, John Booth Farese. I must respectfully disagree with Your Honor, when you say that any member of my firm, other than my son, John Booth Farese, can participate in this trial. My reason for objecting is as follows:
At the time we represented Marvin Myers, my son, John Booth Farese, was not the county prosecuting attorney of Benton or any other county. He had not been elected to office and he had done a great deal of the preparation in this case. I feel that, under our Canons of Ethics, John Booth Farese is morally and legally bound to complete his representation of Marvin Myers, in spite of the fact that he is now the prosecuting attorney of Benton County. I feel that preventing my son from participating in this case with me would be denying Marvin Myers his constitutional right to choice of counsel.
Accordingly, if the Court refuses to allow my son to participate in the trial of this case with me, I will not be able to represent Marvin Myers. I might add, for the Court’s further information, that we have not been paid by anyone for the pending trial, although we had been assured at the last trial that we would be paid.
As Your Honor knows, from reading the newspapers, I have been involved in several time-consuming cases, among which has been the Garrison case. This case has taken me out of the office for days at a time; and, at my age, sixteen hours a day is too much to work.
I shall await the Court’s final decision in this matter; but, so there will be no misunderstanding, in the event the Court sees fit to exclude John Booth Farese from participating in the trial of this case with me, there is no way I can defend Marvin Myers. Our firm is so set up that the major part of the trial work is done by my son and me. Of course, Anthony Farese and Peggy Jones do trial work but, as stated above, the major part is done by my son and me.
With all kind personal wishes and hopes you will have a happy Thanksgiving, I remain
Sincerely,
JOHN B. FARESE

On January 7, 1975 the district attorney wrote Robert J. Kelly the following letter:

This letter is to confirm the legal representation of the above Marvin Myers by you for his up coming trial for murder.

I have discussed the matter with Judge Thomas and he has advised that John Booth Farese is officially barred from participating in the representation of Myers due to the affirmation of the law by the Supreme Court. Mr. Farese, Sr. advised that he is unable to participate without the assistance of his son, John Booth Farese, Jr. and Judge Thomas therefore interprets this as a denial by the Farese Firm to participate in the defense of Marvin Myers.

I am writing you this letter for your information where we will have something for the file and I am also forwarding copies to the appropriate parties.

I send to you my very best regards. Very sincerely, your friend, Gerald W. Chatham

When the motion was made by defendant neither the judge, the district attorney, nor Robert J. Kelly knew that House Bill No. 746 General Laws of Mississippi (1975) was passed by the legislature on April 5,1975 and approved by the Governor on April 7, 1975.

Mr. Farese made it clear in his letter of November 27, 1974 that he would represent Marvin Myers in the trial of his case if his son, John Booth Farese, would be permitted to participate. The letter is an unqualified offer of the Farese firm to represent the defendant, the defendant desired that the Farese firm represent him, and because the impediment against John Booth Farese participating in the trial was removed by the statute which became effective on the date of the trial, we hold that defendant was entitled to be represented by the Farese firm. We hold that the Farese firm is now counsel of record for the defendant and he is not entitled to have the court appoint another attorney to assist this firm in his fourth trial.

It is unfortunate that the bill was passed, approved, and put into effect so that neither the court nor counsel were aware of the passage of the bill. This points up the fact that the legislature should not change existing judicial procedures by making acts of the legislature effective immediately, but should provide that such acts take effect at a future time so that courts and attorneys might have time to learn of statutory procedural changes.

Because this case is being remanded for retrial, we deem it necessary to consider the following assignment of error:

The Court erred in selecting jurors from all of Panola County. The Court was without jurisdiction and authority to select jurors from the second judicial district of Panola County. Therefore, the verdict returned by the jury was void.

Defendant’s motion for a change of venue was granted, and the trial was moved from DeSoto County to the First Judicial District of Panola County. Panola County was established in January, 1836 by Mississippi General Laws of 1836, page 12, and was divided into two judicial districts on January 31, 1880 by Chapter 25 Mississippi General Laws of 1880. Section 6 of the latter act provides:

Sec. 6. Be it further enacted, That the laws in relation to the selection and liabilities of services of jurors shall be applicable to each district in the same manner as if each district was a separate county so far as the same may apply, and no person shall be required to serve as a grand or petit juror except in the district in which he resides, and the grand and petit jurors shall be selected in each district in the same manner as if the same was a county.

Defendant argues that, under our decisions, each district within a county is treated as if it were a separate county for jurisdictional purposes. Rogers v. State, 266 So.2d 10 (Miss.1972); Passons v. State, 208 Miss. 545, 45 So.2d 131 (1950). We agree with defendant’s contention that each judicial district within a two district county is to be treated as if each district were a separate county for jurisdictional purposes. However, this argument, overlooks section 13-5-21 Mississippi Code Annotated (Supp.1977) which provides as follows:

In counties where there are two (2) circuit court districts, the jury commission shall make a list of jurors for each district in the manner directed for a county, and the same shall be treated in all respects as for an entire county. In such counties a juror shall not be required' to serve out of his district, except should the court, in its discretion, otherwise direct, and except when drawn on a special venire. In either of such excepted cases, the jury shall be drawn from the two (2) jury boxes if the court so direct, one (1) name for each alternately.

The above first appears as Section 755 Mississippi Code of 1871 and authorizes a trial court to summon a special venire from both districts within a county when the county contains more than one judicial district. In Burt v. State, 86 Miss. 280, 38 So. 233 (1905) we held this section applied to Perry County notwithstanding the provisions of Chapter 116 Mississippi General Laws of 1892 which divided Perry County into two judicial districts and also provided that no person would be liable for jury service outside the district in which he lives.

We held in Ferguson v. State, 107 Miss. 559, 65 So. 584 (1914) that, in a county having two circuit court districts, the venire may be drawn from both districts of the county, but where one jury box is exhausted it is not reversible error for the trial court to draw all names from the other district.

In Taylor v. State, 148 Miss. 621, 114 So. 390 (1927), we held:

It is manifest that this section simply permits the circuit court, in its discretion, to summon a special venire from the body of the county, and there is nothing in the language to indicate that it is mandatory that the special venire be drawn from the entire county, but the language ‘if the court so direct’ lodges the discretion entirely within the province of the trial court, and a juror is not required to serve out of his district unless the circuit court in its discretion should otherwise order. (148 Miss. at 626, 114 So. at 391).

Section 13-5-21 Mississippi Code Annotated (Supp.1977) specifically authorizes the trial court to require a juror to serve out of his district, (1) in its discretion and, (2) when such juror is drawn on a special venire. In a county having two judicial districts, the special venire may be drawn from both districts of the county, in the discretion of the trial judge. We therefore hold that the special venire was properly drawn from both districts of Panola County.

Defendant also argues that his Sixth Amendment rights were violated. We do not agree for several reasons. First, defendant had the venue changed from the county where the crime was committed and thereby prevented the state from trying his case in the county where the crime was committed. Second, the Sixth Amendment requirement that a defendant must be tried in a district, “which district shall have been previously ascertained by law” was met because Panola County was created in 1836, divided into two judicial districts in 1880 and the boundaries of the districts were fixed by law. Third, section 13-5-21 Mississippi Code Annotated (Supp.1977) authorizing the circuit court to draw a special venire from both judicial districts of a county meets the vicinage requirements of the Sixth Amendment. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Maryland v. Brown, 295 F.Supp. 63 (D.C.Md.1969); People v. Jones, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705 (1973). We therefore hold that selection of jurors from both judicial districts of Panola County meets the requirements of the Sixth Amendment and did not deny defendant due process guaranteed by the Fourteenth Amendment.

Defendant also contends that the court erred by permitting Miles Fowler to testify as a rebuttal witness. The testimony of Fowler was a proper subject of rebuttal and it was within the sound discretion of the court' to allow the testimony. Roney v. State, 167 Miss. 827, 150 So. 774 (1933). The admission in rebuttal testimony rests largely in the discretion of the trial court, and does not constitute reversible error, unless it is shown that no opportunity is afforded the defendant to reply by surre-buttal testimony. Gant v. State, 219 Miss. 800, 70 So.2d 28 (1954).

Defendant also argues that the testimony of Fowler with reference to the tracking by bloodhounds was inadmissible because the state failed to lay a proper predicate by proving that the bloodhounds were pure blood, properly trained and reliable. Hinton v. State, 175 Miss. 308, 166 So. 762 (1936); Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); Harris v. State, 143 Miss. 102, 108 So. 446 (1926); Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285 (1908). No preliminary proof was offered that the bloodhounds were of pure blood, had been well trained to track human beings, had been well tested by tracking other men and found reliable. However, defendant did not make a contemporaneous objection. The rule is well established that a contemporaneous objection is necessary to preserve the right to raise an error on appeal. Ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 (Miss.1974). In Blackwell v. State, 44 So.2d 409 (Miss.1950), this Court stated:

It is now well settled that when anything transpires during the trial that would tend to prejudice the rights of defendant, he cannot wait and take his chances with the jury on a favorable verdict and then obtain a reversal of the cause in this Court because of such error, but he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial. (44 So.2d at 410).

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . Section 1. Section 19-23-13, Mississippi Code of 1972, is amended as follows:
      19-23-13. The county prosecuting attorney shall not represent or defend any person in any criminal prosecution in the name of the state, county or municipality of the county, nor shall he give any advice against the state, his county or in a criminal case against a municipality of his county, and shall not represent any person in any case against the state, his county, or in a criminal case arising in a municipal court of his county. Nothing herein shall prohibit any county prosecuting attorney from defending any person in any criminal prosecution in any county not within the circuit court district of such county prosecuting attorney.
      Section 2. This act shall take effect and be in force from and after its passage.


text:
    TILLIE LEWIS FOODS, INC. v. C. A. McLAIN.
    No. 49886.
    Supreme Court of Mississippi.
    Jan. 18, 1978.
    Thompson, Alexander & Crews, James A. Alexander, Jr., Jackson, for appellant.
    E. Howard Eaton, R. Charles Shultz, Tay-lorsville, for appellee.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Joseph SELMON v. STATE of Mississippi.
    No. 49719.
    Supreme Court of Mississippi.
    Jan. 18, 1978.
    Halat & Pisarich, Peter Halat, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    Charles L. PIERCE v. STATE of Mississippi.
    No. 50083.
    Supreme Court of Mississippi.
    Jan. 18, 1978.
    William Robert Taylor, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    Rollie Wayne ODIER, Plaintiff-Appellant, v. William Andy SUMRALL, Executor of the Estate of Kerry D. Kimbrough, Deceased, and Kimbrough Investment Company, Defendants-Appellees.
    No. 49749.
    Supreme Court of Mississippi.
    Jan. 18, 1978.

      Robert W. King, Roy D. Powell, Jackson, for plaintiff-appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Junior O’Mara, Baine, Moore, Simmons & Thompson, Louis G. Baine, Jr., Clifford C. Thompson, Jackson, for defendants-appel-lees.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   PATTERSON, Chief Justice,

for the Court:

Rollie Wayne Odier sued Kerry D. Kimb-rough and Kimbrough Investment Company for injuries he received in attempting to seat himself in a chair. The Circuit Court of the First Judicial District of Hinds County sustained a general demurrer of Kimb-rough Investment Company to the declaration and the cause between Odier and Kerry D. Kimbrough was tried resulting in a verdict for the defendant. On appeal Odier argues the trial court erred in sustaining the demurrer of Kimbrough Investment Company, the verdict was against the overwhelming weight of the evidence and he should have been granted a peremptory instruction against Kerry D. Kimbrough.

Appellant first contends the demurrer of Kimbrough Investment Company was erroneously sustained. We think it was. The second amended declaration reads in part as follows:

2. That on or about the 17th day of May, 1974, the Plaintiff was at his usual place of employment at the Veterans Administration on East Woodrow Wilson Avenue in the City of Jackson, Hinds County, Mississippi; that at said time and place, Plaintiff was working at his desk in a large office with other people working at their desks; that at said time and place, the Defendant, Kerry D. Kimb-rough, in the line and scope of his employment with the Defendant, Kimb-rough Investment Company, came into said office to see one of the Plaintiff’s co-workers, Seth Hobert, and was standing behind Plaintiff’s chair and in front of Hobert’s desk; that the said Seth Ho-bert left his desk momentarily and while he was away from his desk the Plaintiff continued working, not giving any attention that the said Kerry D. Kimbrough was standing nearby; that the Plaintiff arose from his chair and reached across his desk to get some papers, not paying any attention to the fact that the Defendant, Kerry D. Kimbrough, was standing nearby; that at the time the Plaintiff arose from his chair, he pushed his chair slightly back and while Plaintiff was standing, the Defendant Kerry D. Kimb-rough carelessly, imprudently, and negligently, and with a gross disregard for the rights and safety of the Plaintiff, and with a gross indifference for the consequences, moved Plaintiff’s chair back about two feet; the Defendant Kerry D. Kimbrough then negligently and carelessly failed to warn the Plaintiff that he had moved said chair and as the Plaintiff sat down, he missed the chair and sat down hard on the tile floor causing his back and neck to strike the seat of the chair and his elbow to strike the wall, causing severe and painful injuries to his neck and back and right elbow.
3. That at said time and place, the Defendant, Kerry D. Kimbrough, was acting in the full line and scope of his employment as an employee of Kimb-rough Investment Company, was attending to his employer’s business, and was, therefore, an agent for the Defendant, Kimbrough Investment Company; and that the Defendant, Kimbrough Investment Company, is, therefore, answerable to the Plaintiff and liable to the Plaintiff for the acts and omissions of its servant, Kerry D. Kimbrough.

It is of course established that the master is responsible for the torts of his servant only when they are committed within the scope of his employment. The test used in determining whether an employee’s tortious act is within the scope of his employment is whether it was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master’s business. Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250 (1945); Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713 (1928). For the master to avoid liability because of the act of his servant it must be that at the time of the act the servant had abandoned his employment and was about some purpose of his own not incidental to the employment. Loper v. Yazoo & M.V.R. Co., 166 Miss. 79, 145 So. 743 (1933); Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823 (1900).

The weight of authority is that a servant’s unauthorized conduct does not place it beyond the scope of his employment provided it is of the same general nature as that authorized or is incidental to the employment. In Loper, supra, the following was stated:

Whether a servant’s unauthorized conduct is of the same general nature as that authorized or incidental to the conduct authorized is a question of fact arising in each case on the evidence, and must be considered and determined as all other questions of fact are. If the evidence relative thereto is in conflict, or, if not, and only one reasonable inference can be drawn therefrom, the question is for the decision of the judge; but, if there is conflict therein, or more than one reasonable inference can be drawn therefrom, the question is for the decision of the jury under proper instructions. Ill. Cent. R. Co. v. Latham, 72 Miss. 32, 16 So. 757

(166 Miss. at 85-86, 145 So. at 745) See also Eagle Motor Lines, Inc. v. Mitchell, 223 Miss. 398, 78 So.2d 482 (1955); Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370 (1953); Barmore v. Vicksburg, Shreveport & Pacific Railway Co., 85 Miss. 426, 38 So. 210 (1905).

We are of the opinion the declaration alleged facts sufficient to state a cause of action against Kimbrough Investment Company necessary to be decided in a trial on the merits. In reaching this opinion we observe the plaintiff did not allege that Kerry D. Kimbrough intentionally moved the chair but rather it was moved “carelessly, imprudently, and negligently, and with a gross disregard for the rights and safety of the plaintiff . . . ” and “carelessly failed to warn the Plaintiff that he had moved said chair” while within the scope of his employment as an employee of Kimb-rough Investment Company. We conclude the trial court erred in sustaining the demurrer.

Odier next contends the verdict was against the overwhelming weight of the evidence and his requested peremptory instruction should have been granted. The evidence is that Odier was working at his desk in his office at the Veterans Administration, hereinafter V. A., in Jackson, Mississippi, on May 17, 1974. Kerry D. Kimb-rough came by to see Seth Hobert, an employee of the V. A., on business of Kimb-rough Investment Company. Hobert’s desk was to the rear of Odier’s and while Kimb-rough was conversing with Hobert, his hand and arm rested on the back of Odier’s chair. Hobert left the office to obtain a file at about which time plaintiff arose from his chair to obtain some object across his desk pushing his chair slightly to the rear. At that time Kimbrough straightened his arm, pulling the chair back approximately eight inches. His testimony was:

A. . But what took place in essence, Wayne got up, reached across his desk, slightly pushed his chair back. When he did, not thinking, I just straightened my arm up like this. And still turned at this angle. Well, when I straightened my arm up, that pulled the chair back another, I guess, maybe—
BY MR. KING: We object to guessing.
A. It pulled the chair back eight inches.
BY THE COURT: You can make an approximation.
A. An approximation of six to eight inches, or so. So, with the amount that Wayne pushed his chair back originally, and when I straightened my arm up, then out of the corner of my eye, I saw Wayne start to sit down. And everything happened so quick that I couldn’t — I wasn’t thinking about exactly what I had done. Like I said, it was just a reflex motion when he stood up for me to straighten my arm up and lean back against the chair.

According to another witness, while Odier was standing, Kimbrough looked about and then put four fingers under the edge of the chair and moved it some twelve inches to the rear. Odier testified that he did not look back before attempting to reseat himself and Kimbrough testified that when Odier began to sit down he did not have time to warn him and Odier’s posterior caught the edge of the chair pushing it further back and he fell to the floor.

In falling Odier struck his shoulders and neck on the seat of the chair and his arm struck the wall. Kimbrough assisted plaintiff from the floor and testified that he told Odier he was sorry the incident had occurred. Odier testified that Kimbrough told him he was sorry that he moved the chair and thought he could get it beneath him before he sat down. There is no suggestion of animosity between the plaintiff and the defendant before the occurrence.

Odier felt no immediate pain from the fall but later developed a headache which became progressively worse, necessitating, according to him, examination by numerous physicians whose diagnoses have ranged from acute cervical strain to emotional illness.

The testimony of Odier and Kimb-rough, corroborated by another witness, unequivocally established that the chair was moved to the rear, either intentionally or unintentionally, by Kimbrough when Odier arose. Odier’s fall was also uncontradicted. The jury’s verdict for the defendant was against the overwhelming weight of the evidence because there is no evidence that Kimbrough did not move the chair. The jury’s verdict could be justified, if at all, only upon its finding that the injuries complained of were not the proximate result of the fall. Without comment concerning the seriousness of Odier’s injuries, we think it is uncontradicted that the fall caused some pain and suffering entitling him to nominal damages at the very least. We conclude, as we think we must, the verdict of the jury was against the overwhelming weight of the evidence.

It is next contended, and we agree, that Odier was erroneously refused a peremptory instruction establishing the liability of Kerry D. Kimbrough. The facts previously set forth, particularly the admissions of Kimbrough that he moved the chair, establish his negligence which caused Odier to fall and was the proximate cause of at least some injury entitling Odier to some damages. The peremptory instruction, in our opinion, should have been granted.

Odier argues the defendant was erroneously granted a contributory negligence instruction. We are of a contrary opinion because Odier admitted he did not look back before attempting to reseat himself. This established a proper basis for the contributory negligence instruction which the jury was entitled to consider in dimin-ishment of damages.

In sum, we are of the opinion the trial court erroneously sustained the demurrer of Kimbrough Investment Company, erroneously refused a peremptory instruction establishing liability as against Kerry D. Kimbrough and erroneously overruled the motion for a new trial because the verdict of the jury was against the overwhelming weight of the evidence.

The case was considered by a conference of the justices en banc.

REVERSED AND REMANDED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: BEATTY, Justice.

text:
    Guy PARKER et al. v. E. F. MAULDIN et al.
    SC 2573.
    Supreme Court of Alabama.
    Dec. 2, 1977.
    Rehearing Denied Jan. 27, 1978.
    Gary A. Phillips, and Norman W. Harris, P. A., Decatur, for appellants.
    Robert L. Potts and Ray C. Johnson for Potts & Young, Florence, for appellees Edward F. Mauldin and Preuit & Mauldin.
    Joe H. Calvin, Decatur, for appellee First Colbert National Bank.
   BEATTY, Justice.

This is an appeal by the plaintiffs from a declaratory judgment requiring the plaintiff Guy Parker to indemnify the defendants. Affirmed in part; reversed in part and remanded.

The present action is based upon a former action, Parker v. Sutton, 47 Ala.App. 352, 254 So.2d 425 (1971), cert. den. 287 Ala. 738, 254 So.2d 431. A review of the facts in that case will be helpful.

In 1963 Guy Parker contacted the farm implement dealer, Preuit & Mauldin, a partnership, about purchasing a new high drum cotton picker but on the condition that he could sell or trade his low drum cotton picker. Robert and Coy Sutton expressed an interest in purchasing Parker’s low drum cotton picker because they could not obtain financing for a new cotton picker. The Suttons were then allowed to take the low drum cotton picker and use it on a trial basis.

On September 9,1963, the Suttons agreed to purchase Parker’s low drum cotton picker for $11,750.00. They made a $2,000.00 down payment. A memorandum of the sale was made on a Commercial Credit Equipment Corporation purchase agreement, however, Commercial Credit declined to accept this purchase agreement because of an error in the interest calculation, and the Suttons refused to execute another agreement. Meanwhile, the Suttons wrecked the cotton picker.

On October 7, 1963, after several attempts to obtain the Sutton’s signature to a new agreement, E. F. Mauldin and Guy Parker took possession of the cotton picker. In 1967 the Suttons sued Guy Parker, E. F. Mauldin, and Preuit & Mauldin for conversion, trespass, and in detinue. The trial court entered a judgment for the Suttons in the amount of $10,000.00 plus interest. This judgment was later affirmed by the Court of Civil Appeals.

Thereafter, the Suttons threatened to issue execution on the judgment against E. F. Mauldin, but after negotiations the First Colbert National Bank (the Bank) paid the Suttons and took an assignment of the judgment. At ■ the same time Preuit & Mauldin issued its promissory note to the Bank for the amount of the judgment. After taking the assignment the Bank made a demand on Guy Parker to satisfy the judgment and then the Bank filed the certificate of judgment in the office of the Judge of Probate of Lawrence County. Later, the First Colbert National Bank released E. F. Mauldin and Preuit & Mauldin from liability on the judgment but continued to hold Preuit & Mauldin’s promissory note.

The plaintiffs, Guy and Don Parker, then brought this action to quiet title to their real property, and Guy Parker sought a declaratory judgment to determine whether he was indebted to E. F. Mauldin, Preuit & Mauldin, and the First Colbert National Bank based upon the judgment in Parker v. Sutton, supra. In its findings of fact the trial court found that E. F. Mauldin and Preuit & Mauldin were acting as agents of Guy Parker in dealing with the Suttons and that E. F. Mauldin was acting under a bona fide supposition of innocence and propriety in taking possession of the cotton picker. The trial court then held that the amount owed on the judgment was $11,825.00 plus 7% interest and that Guy Parker must indemnify E. F. Mauldin and Preuit & Maul-din. From this judgment the plaintiffs have appealed.

Among the issues the plaintiffs have raised are these questions:

1) Whether the judgment was extinguished by a satisfaction when the Bank paid the Suttons, and

2) Whether the trial court erred, based upon the doctrine of res judicata, in litigating the bona fide innocence of E. F. Maul-din in taking the cotton picker.

The plaintiffs argue that the judgment was extinguished by a satisfaction when the Bank paid the Suttons for the total amount of the judgment and took it by assignment. To support this contention they cite Lillie v. Dennert, 232 F. 104 (6th Cir. 1916); Boyer v. Bolender, 129 Pa. 324, 18 A. 127 (1889); and Adams v. White Bus Line, 184 Cal. 710, 195 P. 389 (1921). However, each of these cases is inapplicable to the present controversy. In Lillie, the Court of Appeals found no error in the lower court’s conclusion that the judgment had been satisfied since payment had been made by the assignee, a straw man for the judgment debtor. Although the plaintiffs here also argue that the Bank was a straw man, there is at least a scintilla of evidence in the record to furnish a reasonable inference that the Bank was acting independently and in a regular businesslike manner in taking assignment of the Sutton’s judgment. Thus, the Lillie case is not apt. Likewise, both Boyer and Adams are inapplicable because in Boyer the judgment was satisfied by the assignee who was a straw man for the judgment debtor; and in Adams the judgment debtor satisfied the judgment, through its insurance carrier, and then made an assignment to one of its employees who was a straw man.

The plaintiffs next argue that the trial court erred in litigating in this case the bona fide innocence of E. F. Mauldin in taking the cotton picker because the doctrine of res judicata bars litigation of that question. A preliminary sub-issue to this question, as it applies to E. F. Mauldin and Preuit & Mauldin, is whether there may be contribution or indemnity between joint tort-feasors. The general rule is that joint tort-feasors are not entitled to indemnity or contribution. Gobble v. Bradford, 226 Ala. 517, 147 So. 619 (1938); Vandiver & Co. v. Pollak, 107 Ala. 547, 19 So. 180 (1894). An exception to this rule is stated in Vandiver, supra, that:

[I]f the parties act bona fide, under the supposition of the entire innocence and propriety of the act, — there is not room or reason for the application of the principle. .

The Court further observed:

The general principle of the common law, and its limitation or exception is thus expressed by Judge Story: ‘It may be stated as a general principle of law, that an agent who commits a trespass or other wrong to the property of a third person, by the direction of his principal, if at the time he has no knowledge or suspicion that it is such a trespass or wrong, but acts bona fide, will be entitled to a reimbursement and contribution from his principal for all the damages which he sustains thereby. For although the general doctrine of the common law is, that there can be no reimbursement or contribution among wrong-doers, whether they are principals or are agents; yet that doctrine is to be received with the qualification, that the parties know at the time that it is a wrong. And in all these cases, there is no difference whether there be á promise of indemnity or not; for the law will not enforce a contract of indemnity against a known and meditated wrong; and, on the other hand, where the agent acts innocently, and without notice of the wrong, the law will imply a promise on the part of the principal to indemnify him.’ — Story on Agency, § 339. .

In the instant case, the trial court took evidence and made findings of fact that E. F. Mauldin and Preuit & Mauldin were acting as agents for Guy Parker and that when they dealt with the Suttons they in substance were acting innocently. The trial court then concluded that E. F. Mauldin and Preuit- & Mauldin were entitled to complete indemnity and that the First Colbert National Bank would be satisfied when Preuit & Mauldin satisfied its note. The plaintiffs, however, argue that the trial court erred in litigating the bona fide innocence of E. F. Mauldin in this case because litigation of that issue was barred by the doctrine of res judicata, having been litigated in the former case.

The rules applicable to that question are laid down in Gulf American Fire and Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968) and reiterated in Geer Bros., Inc. v. Crump, 349 So.2d 577 (Ala.1977). Those rules are that when cases are founded on the same cause of action, res judicata is a bar not only to matters actually presented on a right asserted in the earlier case but to matters which might have been asserted; and when cases are founded on different causes of action res judicata is a bar only where the parties are the same, the subject matter is the same, the identical point is in issue, and the judgment has been rendered in the first suit on that point.

Here the question is whether the cause of action is the same in both the original and present actions. The cause of action in the original action was based upon the wrongful taking of the cotton picker. In the present action, the cause of action is based upon the former judgment and counterclaims for indemnity in a declaratory judgment action. Because the cause of action in both controversies is not the same the first rule of res judicata does not apply. In addition, the second rule of res judicata, applicable when the cases are founded on different causes of action, does not apply since in both controversies the parties are not the same. Therefore, under the doctrine of res judicata the trial court did not err in litigating the bona fide innocence of E. F. Mauldin.

The defendants asserted in their counterclaim that a constructive trust should have been enforced against Guy Parker for the $2,000.00 and the cotton picker he received. The plaintiffs argue that if the defendants were entitled to prevail on the constructive trust theory, the judgment based on that theory was excessive. However, this argument overlooks the effect of the trial court’s judgment. That judgment was rendered on the theory of indemnity and requires Guy Parker to indemnify E. F. Maul-din and Preuit & Mauldin. Therefore, the constructive trust issue was rendered moot.

Second, the plaintiffs argue that the judgment was contrary to the weight of the evidence. On that issue we must observe that on evidence taken ore tenus the conclusion of the trial court will not be disturbed unless it is plainly and palpably erroneous. Air Movers of America, Inc. v. State Nat. Bank of Ala., 293 Ala. 312, 302 So.2d 517 (1974). Our review of the record convinces us that there is sufficient evidence to support the trial court’s judgment.

Therefore, the trial court has not committed error in upholding the validity of the judgment requiring Guy Parker to indemnify E. F. Mauldin and Preuit & Mauldin who in turn will satisfy the First Colbert National Bank.

But the plaintiffs also contend that the trial court erred by failing to render judgment quieting title to their properties. Although the trial court found that the plaintiffs raised the issue to quiet title, it did not rule on this point. Further, plaintiffs argue that the certificate of judgment filed with the judge of probate was defective because (1) it did not contain the names of all the parties, and (2) it did not state the correct amount of the judgment, and therefore it could not create a lien on their real property. We have set out the certificate of judgment in haec verba:

The legislature mandated in Tit. 7, § 584, Alabama Code that:

The owner of any judgment or decree rendered in any court of record of this state, or of the United States, held in this state, may file in the office of the judge of probate of any county of this state, a certificate of the clerk or register of the court by which the judgment or decree was rendered which certificate shall show the style of the court which rendered the decree or judgment, the amount and date thereof, the amount of costs, the names of all parties thereto, and the name of the plaintiff’s or complainant’s attorney, and shall be registered by the judge of probate in a book to be kept by him for that purpose, which said register shall also show the date of the filing of the judgment or decree, and said judge shall make a proper index to said book, which shall also show under the proper letter or letters of the alphabet the names of each and every defendant to said judgment or decree, and such judgments or decrees shall be recorded in chronological order of the filing of such judgments or decrees. . (emphasis added)

In Duncan v. Autauga Banking & Trust Co., 223 Ala. 434, 136 So. 733 (1931), this Court held that there must be strict observance of the statute [Code of 1923, § 7874] to create a lien. That section became Tit. 7, § 584, Ala.Code (Recomp. 1958) (6-9-210, Code of Ala. 1975), and a comparison of its requirements with the certificate of judgment shows noncompliance with the statute’s terms because not all of the parties in the judgment are named and the amount of the judgment is not correctly stated. Since the certificate of judgment filed by the First Colbert National Bank failed to so comply, it is defective and cannot be utilized to effect a lien.

Since the trial court erred by not rendering judgment on the issue of quieting title, the cause must be remanded for further proceedings not inconsistent with this opinion. Accordingly, the judgment is affirmed in part, reversed in part and the cause is remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    WINN-DIXIE MONTGOMERY, INC. v. Bobby HENDERSON.
    SC 2359.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Richard W. Whittaker of Pittman, Whittaker & Hooks, Enterprise, for appellant.
    M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.
   BLOODWORTH, Justice.

Appellant, Winn-Dixie Montgomery, Inc., appeals from a jury verdict of $14,000 in favor of appellee, Bobby Henderson, and from a denial of its motion for new trial in a fraud suit. We reverse and remand.

Appellee, Henderson, filed suit against Winn-Dixie Stores, Inc., Employees Profit Sharing Program of Winn-Dixie Stores, Inc., and Atlantic National Bank of Jacksonville claiming, inter alia, breach of contract because he claimed that these defendants owed him his share of the proceeds and dividends of a profit-sharing plan since he had been forced to terminate his employment without being paid his share. Henderson thereafter amended his complaint, striking Winn-Dixie Stores, Inc., and substituting Winn-Dixie Montgomery, Inc., as a defendant. The trial court struck Employees Profit Sharing Program of Winn-Dixie Stores, Inc. as a defendant. Defendant Atlantic National Bank of Jacksonville was also struck. This left the appellant Winn-Dixie as the sole defendant.

Henderson’s second amendment to his complaint added Counts FOUR and FIVE:

“COUNT FOUR

“1. On to-wit, November 1973, to-wit, January, 1974 and divers other occasions during 1973 and 1974, the Defendant Winn-Dixie Montgomery, Inc., hereinafter referred to as Winn-Dixie, through its agents, servants, or employees, with the intent to deceive fraudulently deceived the Plaintiff, an employee of Winn-Dixie, by fraudulently and falsely stating to the Plaintiff that he would be transferred to the Winn-Dixie-Kwik-Chek store in Enterprise, Alabama. The Plaintiff further avers that at each time the Defendant Winn-Dixie, through its agents, servants, or employees, promised the Plaintiff a transfer to the Enterprise, Alabama, store, that the Defendant, Winn-Dixie, made said promise with the intent not to perform it, and with the intent not to transfer the Plaintiff. The Plaintiff avers that the Defendant Winn-Dixie, its agents, servants, or employees had no intention of transferring Plaintiff at the time the Defendant Winn-Dixie made the statement, or at any other time at which the Defendant Winn-Dixie promised and reassured the Plaintiff that he would be transferred.

“2. The Plaintiff further avers that he relied upon said false and fraudulent misrepresentations of the Defendant Winn-Dixie, and that the Plaintiff was fraudulently induced and deceived thereby, and the Plaintiff was further induced thereby to arrange a mortgage with the Enterprise Banking Company in order that his wife could buy a beauty shop in Enterprise, Alabama. The Plaintiff further avers that through no fault of his own that the Defendant Winn-Dixie did not transfer the Plaintiff to the Enterprise, Alabama Winn-Dixie-Kwik-Chek store and he avers that as a proximate consequence of the Defendant Winn-Dixie’s aforesaid fraudulent and false misrepresentations which were known by the Defendant Winn-Dixie to be false at the time the promise to transfer was made, and which promises and reassurances were made with the intent to deceive the Plaintiff and the Plaintiff’s said reliance and said acting thereon, the Plaintiff was injured in this:

“He was caused to suffer great humiliation and professional embarrassment; he was caused to lose profitable employment; he was caused to suffer mental anguish as a consequence of the Defendant Winn-Dixie’s aforesaid actions for which he claims the damages.

“WHEREFORE, Plaintiff demands judgment against Defendant Winn-Dixie in the sum of Fifty Thousand ($50,000.00) Dollars, interest and cost. The Plaintiff claims punitive damages.

“COUNT FIVE

“1. The Plaintiff claims of the Defendant Winn-Dixie Montgomery, Inc., hereinafter referred to as Winn-Dixie, the sum of Fifty Thousand ($50,000.00) Dollars damages, for that on to-wit: November, 1973, the Plaintiff, an employee in the Defendant Winn-Dixie’s Dothan, Alabama, store, asked the Defendant Winn-Dixie, to transfer him to the Defendant Winn-Dixie’s store in Enterprise, Alabama. The Plaintiff avers that the reason for the transfer was that the Plaintiff’s wife desired to purchase a beauty shop in Enterprise, Alabama. The Defendant Winn-Dixie, during the month of November, 1973, and on divers days after that date, represented to the Plaintiff that he would be transferred as requested to the Defendant Winn-Dixie’s Enterprise, Alabama, store.

“2. That the said representations to transfer were false, and were known to Defendant Winn-Dixie, at the times they were made to be false, that they were made willfully to deceive, or recklessly without knowledge, and that such representations were relied upon by Plaintiff and acted upon in that Plaintiff and his wife executed a mortgage to the Enterprise Banking Company in order that the Plaintiff’s wife might purchase a beauty shop, and that the Plaintiff was never granted the transfer as represented by the Defendant Winn-Dixie, all to the damage of the Plaintiff.

“The Plaintiff was injured in this:

“He was caused to suffer great humiliation and professional embarrassment; he was caused to lose profitable employment; he was caused to suffer mental anguish as a consequence of the Defendant Winn-Dixie’s aforesaid actions for which he claims the damages.

“WHEREFORE, Plaintiff demands judgment against the Defendant Winn-Dixie in the sum of Fifty Thousand ($50,000.00) Dollars, interest and cost. The Plaintiff claims punitive damages.”

The case proceeded to trial on the issues of fraud and breach of contract. At the close of the evidence, the trial court granted a directed verdict for appellant on the contract aspect. The case went to the jury on Counts FOUR and FIVE. The jury found for appellee and returned a $14,000 verdict. Both parties agree that the verdict included punitive damages.

Appellant Winn-Dixie contends that Counts FOUR and FIVE of appellee Henderson’s amended complaint, supra, which are allegedly fraud counts, are actually claims for breach of contract and, therefore, punitive damages were erroneously assessed; and that the verdict is excessive.

Winn-Dixie also contends that Count FOUR is based upon Tit. 7, §§ 110-112, Code of Alabama 1940 (now § 6-5-103-104 Code of 1975) and is insufficient in that there is no evidence that its alleged promise to transfer Henderson was made with the •present intent not to perform it. If, however, Count FOUR is found to be based upon Tit. 7, § 108 (now § 6-5-101) (as Henderson contends) Winn-Dixie maintains the Count is still not actionable as it involves a future occurrence and not an existing material fact.

Further, Winn-Dixie contends that Count FIVE is predicated upon Tit. 7, § 108, and is likewise insufficient in that the alleged promise does not pertain to an existing material fact but instead concerns a future event. Therefore, Winn-Dixie argues, the trial court erred in refusing to grant its motions for directed verdict and new trial on Counts FOUR and FIVE of the amended complaint.

It seems clear that Winn-Dixie’s argument that the complaint sounds in contract rather than in tort is without merit. The terms of the complaint plainly allege an action for fraud and, or deceit and, or misrepresentation. This is particularly true since this Court adopted the liberal policy of pleading. See Rule 8, A.R.C.P. The common law rule of strict construction against the pleader has been abolished by the rules of civil procedure as exemplified specifically by this rule and particularly by subdivision (f). Lowe’s Of Muscle Shoals, Inc. v. Dillard, 53 Ala.App. 669, 304 So.2d 12 (1974).

We do agree with appellant Winn-Dixie, however, that we must reverse and remand this cause because the evidence does not justify the award of punitive damages.

Assuming, arguendo, that Count FOUR of the amended complaint is based upon Tit. 7, § 108, and assuming further that this Count alleges the misrepresentation of an existing material fact rather than a future occurrence [See Scholz Homes, Inc. v. Hooper, 287 Ala. 628, 254 So.2d 328 (1971)], our conclusion would be the same.

Tit. 7, § 108, Code, states:

“§ 108. (8049) (4298) Misrepresentations.—Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.”

The elements of a cause of action sufficient to constitute legal fraud under this section were recently enumerated in International Resorts, Inc., et al. v. Lambert, 350 So.2d 391 (Ala.1977), viz:

“. . . Regardless of whether the representations were made wilfully, recklessly or mistakenly, it has been held that there must be (1) a false representation, (2)the false representation must concern a material existing fact, (3) the plaintiff must rely upon that false representation, and (4) the plaintiff must be damaged as a proximate result.”

Id. at 394.

The evidence adduced at trial establishes, at most, that a misrepresentation was “made by mistake and innocently,” which is, of course, actionable under this statute. However, it is clear that such an innocent misrepresentation will not support an award of punitive damages. An award of punitive damages in an action for fraud "will be upheld only if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the representations were made with knowledge of their falsity. Old Southern Life Insurance Company v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976); Hall Motor Company v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). See also State Farm Mutual Automobile Insurance Company v. Ling, 348 So.2d 472 (Ala.1977).

The imposition of punitive damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. International Resorts, Inc. v. Lambert, supra; Old Southern Life Insurance Company v. Woodall, supra.

“. . . Our cases have uniformly held that punitive damages may be awarded in actions for fraud, if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the representations were made with knowledge of their falsity.”

Old Southern Life, supra.

“If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly. This being so, punitive damages could be recovered under Count 5, even though it be considered as framed under Section 108, if the count properly averred, and the evidence established that the material misrepresentation was made knowingly and falsely, was relied on by the injured party, and the fraud was gross, malicious, oppressive, and committed with an intent to injure.”

Hall Motor Company, supra.

Although there was testimony, from which the jury might conclude that Winn-Dixie’s area supervisor, Jimmy Lott, misrepresented to Henderson that he would be transferred to another store, Henderson himself testified that he knew of no reason why Mr. Lott would maliciously tell him he would be transferred and then refuse to do so. Moreover, Henderson testified that his working relationship with the store continued to be good after this incident. We think the evidence falls far short of establishing the requisite maliciousness, oppressiveness, or grossness necessary to support an award of punitive damages.

Therefore, we hold that it was reversible error to allow the jury to impose punitive damages in this case.

Appellee earnestly contends that Loch Ridge Construction Company, Inc. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973), “is similar to the case at bar.” We cannot agree. The evidence adduced in Loch Ridge established a much stronger case for the award of punitive damages. There, home buyers brought an action against the home builder and selling agent for alleged fraudulent misrepresentation that the house met Veteran’s Administration and Federal Housing Authority standards, that it had been inspected by the V.A., and that it would be in perfect condition when they moved in. In fact, the house they purchased was an amalgam of mistakes: defects in the air conditioning and heating units could only be corrected by the installation of new systems; the attic was improperly insulated; and, although the house plans called for panelling in the kitchen, a stainless steel sink, and a louver to be installed in the rear of the house, none of these items were installed.

We think the evidence there justified an award of punitive damages for a jury clearly could find maliciousness and an intent to deceive. In this case, by contrast, such damaging testimony is not present.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Donald Ray BROWN v. STATE of Alabama.
    SC 2459.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.

      Richard D. Lane, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State of Ala.
   EMBRY, Justice.

The appeal by Donald Ray Brown is from an order of the Circuit Court of Lee County transferring three cases, wherein he is charged with felonies, from the Juvenile Court of Lee County District Court to the Circuit Court for trial of Brown there as an adult. The order of transfer was made after trial de novo upon appeal from the district court, all pursuant to the juvenile code, as is the appeal to this court. Tit. 13A, § 5-152, Code (1940, 1975 Interim Supp.) (§ 12-15-2 et seq., 1975 Code). We affirm.

On 18 October 1976 Brown was committed to jail under a warrant charging him with murder in the first degree. The next day the circuit court determined he was indigent and appointed counsel to represent him. In November he was committed to Bryce Hospital for examination and treatment. In December he was ordered to be, and was, returned to Lee County for trial. Then three indictments were returned against him, charging him respectively with robbery, murder in the first degree, and burglary in the second degree and grand larceny. Appointment of new counsel for him was made, after which, on 24 January 1977, the circuit court found Brown to be a child as defined in the juvenile code, § 12-15-1, Code, 1975, and ordered the cases transferred to the juvenile court. The district attorney then moved the juvenile court to transfer the cases against Brown to the circuit court for prosecution of Brown as an adult, which was done. Brown then appealed to the circuit court from the transfer order where, after trial de novo, the circuit court ordered the cases tried in the circuit court. As noted, this appeal is from the transfer order of the three cases.

The Issue

Brown advances several arguments for reversal of the transfer order. However, the majority of his contentions center around the constitutionality and validity of that order. The threshold question is whether the decision to transfer Brown from the juvenile court to the circuit court for criminal prosecution comports with the requirements of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and with the dictates of § 5-129, Tit. 13A Code (1940, 1975 Interim Supp.).

The standards which guide a judge in making his determination to transfer a juvenile to the circuit court for criminal prosecution are set forth in § 5-129, which provides:

“§ 5-129. Transfer of cases from juvenile court to criminal court. — (a) The prosecutor may before a hearing on the petition on its merits, and following consultation with probation services, file a motion requesting the court to transfer the child for criminal prosecution, if:
(1) The child was 14 or more years of age at the time of the conduct charged, and is alleged to have committed an act which would constitute a felony if committed by an adult; or
(2)The child is 14. or more years of age and is already under commitment to an agency, department or institution as a delinquent.
(b) The court shall conduct a hearing on all such motions for the purpose of determining whether it is in the best interest of the child or the public to grant the motion. If the .court so finds and there are no reasonable grounds to believe he is committable to an institution or agency for the mentally retarded or mentally ill, it shall order the case transferred for criminal prosecution.
(c) When there are grounds to believe that the child is committable to an institution or agency for the mentally retarded or mentally ill, the court shall proceed as provided in section 5-136.
(d) Evidence of the following and other relevant factors shall be considered in determining whether the motion shall be granted:
(1) The nature of the present alleged offense;
(2) The extent and nature of the child’s prior delinquency record;
(3) The nature of past treatment efforts and the nature- of the child’s response to such efforts;
(4) Demeanor;
(5) The extent and nature of the child’s physical and mental maturity;
(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.
(e) Prior to a hearing on the motion by the prosecutor, a study and report to the court, in writing, relevant to the factors in subsection (d) shall be made by probation services.
(f) When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion which shall include a finding of probable cause for believing that the allegations are true and correct.”

This section was enacted after Kent, supra, the leading case on juvenile rights. Kent involved a transfer proceeding which the United States Supreme Court held to be violative of the child’s rights to due process of law. That court found that a hearing must be held before a transfer is permitted, at which the child is afforded counsel. Following the hearing, the judge must give the reasons for his decision. In the opinion it was stated:

“ * * * we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.” 383 U.S. at 561, 86 S.Ct. at 1057.

In the instant case, the requirements of Kent, and of § 5-129, have been met.

A. There was a full hearing in the juvenile court and on appeal to the circuit court, where the transfer hearing was conducted de novo (See § 5-152, Tit. 13A, Code; 1975 Interim Supp.) (Because of the de novo hearing in the circuit court the opinion can be limited to a review of that hearing).

B. Brown was represented by counsel at the hearing.

C. Following the hearing, the circuit court entered an order granting the transfer in which it set forth findings; the bases of the order:

“On this date, March 8,1977, being the date set for hearing the appeal of the defendant, said date being set by agreement of the parties and upon motion of the defendant, the Court heard evidence ore tenus. Both parties announced ready, the State of Alabama being represented by Hon. Ronald L. Myers, and the defendant, Donald Ray Brown, being present was represented by Hon. Richard D. Lane. The Court carefully observed the demeanor of each witness as he or she testified. The Court finds as follows:
“1. Donald Ray Brown was fourteen or more years of age at the time of the alleged conduct and is alleged to have committed an act which would constitute a felony if committed by an adult.
“2. It is in the best interest of the public to proceed with the disposition of the cause as a criminal prosecution.
“3. That there are no reasonable grounds to believe the defendant is com-mittable to an institution or agency for the mentally retarded or mentally ill.
“The Court considered evidence of the following and other relevant factors in determining whether to transfer the 'cause for criminal prosecution:
“(1) The nature of the present offense;
“(2) The extent and nature of the child’s prior delinquency record;
“(3) The nature of past treatment efforts and the defendant’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the defendant’s physical and mental maturity.
“Prior to said hearing Probation Services made a study and report to the Court in writing relevant to applicable factors as required by law. This report was furnished to the defense.
“Therefore, the case of the State of Alabama vs. Donald Ray Brown is ordered transferred to the Circuit Court of Lee County, Alabama, Criminal Division, for the reasons as set forth in this order. It is, therefore,
“CONSIDERED, ORDERED AND ADJUDGED that the ease of the State of Alabama vs. Donald Ray Brown be transferred to the Circuit Court of the Thirty-Seventh Judicial Circuit, Criminal Division, there to be disposed of as a criminal case.
“The Court further finds there is probable cause for believing that the applicable allegations are true and correct.”

D. The findings made by the circuit court are supported by the evidence of record: Brown was sixteen at the time of the alleged conduct; was indicted by the grand jury on charges of robbery, first degree murder, and second degree burglary and grand larceny; the record as a whole supports the trial court’s determination that it is in the best interest of the public that there be criminal prosecution; the report of the Forensic Evaluation Board stated Brown was restored to his right mind; and there are other relevant factors found in the record.

Brown contends the circuit court committed prejudicial error when it admitted the three indictments in the transfer hearing and considered the indictments as establishing a finding of probable cause for believing that the allegations against him were true. We disagree. Section 5-129(f), Tit. 13A, provides:

“When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion which shall include a finding of probable cause for believing that the allegations are true and correct.”

Thus the transfer hearing should properly be classified as a probable cause hearing. It has long been recognized that the strict rules of evidence do not apply in a probable cause hearing. Vincent v. State of Alabama, 349 So.2d 1145 (Ala.1977). Therefore the circuit court was free to admit and consider relevant evidence relating to the allegations against Brown, including the indictments.

With specific reference to § 5-129(f), Brown submits the standard of probable cause for believing that the allegations are true and correct contained therein violates due process of law. He suggests the standard of beyond a reasonable doubt should apply at the transfer hearing. Brown cites In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1968), as authority. Brown states in his brief that Winship made applicable the beyond a reasonable doubt standard of proof in criminal prosecution to juvenile courts in an adjudicatory hearing. This argument is clearly inapt in the instant case. It is well recognized that a transfer hearing is not a hearing to adjudicate the guilt or innocence of the child accused of a crime but is, instead, a probable cause hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult. See Kent, supra.

Brown further contends the State did not comply with § 5-129, when it failed to file a motion to transfer in the circuit court on the appeal from the order of the juvenile court. Brown concedes a motion was originally filed in the juvenile court by the district attorney; however, he argues when the case was appealed to the circuit court the State should have refiled its motion or filed another motion requesting transfer. Again we disagree. The issue here is whether § 5-129 requires the prosecutor to refile a motion requesting the court to transfer the child for criminal prosecution when appealed to the circuit court. We think not. Although § 5-152(a) provides: “ * * * the circuit court shall try the case de novo * * * ”, we cannot see the necessity of having the prosecutor refile the motion to transfer, or file another. First, Brown as an aggrieved party appealed to the circuit court from the order of the juvenile court pursuant to § 5-152. Second, the order of the juvenile court granting the transfer was made part of the record. Moreover, the motion to transfer filed originally in the juvenile court by the district attorney was contained in the juvenile court file, and introduced as evidence by Brown’s counsel at the de novo hearing in the circuit court.

Finally, Brown asserts the circuit court erred in merely reciting, as a conclusion, that it considered certain statutory relevant factors in determining whether to transfer him for criminal prosecution without stating the reasons in the transfer order. He urges that a restatement of the language of § 5-129 is insufficient to permit a meaningful review. This, by itself, could possibly be true in other circumstances; however, the evidence adduced at the hearing measured against the standards set forth in § 5-129 provides a meaningful review of the sufficiency of the transfer order to comply with Kent. It is axiomatic that on appeal to this court there will be a review of the record; and we noted earlier that the evidence of record supports the findings and order of the circuit court. In reviewing the record, Rule 52(a), ARCP, precludes this court from altering the lower court’s findings unless those findings are clearly erroneous. Whigham v. Travelodge International, Inc., 349 So.2d 1078 (Ala.1977).

Holding, as we do today, the standards set forth in § 5-129, Tit. 13A, are constitutionally valid, and finding no error in the circuit court’s application of those standards, the order transferring the cases against Brown to the circuit court for trial is affirmed.

AFFIRMED.

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


text:
    Alvin H. BURGESS and Flora Boatner Burgess v. Arthur L. LOFTIN.
    SC 2504.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.

      Charles J. Kettler, Jr., Luverne, for appellants.
    Wendell W. Mitchell, Luverne, for appel-lee.
   BLOODWORTH, Justice.

Appellants, Alvin and Flora Burgess, filed suit seeking to establish a certain wire fence as their true northern boundary. Ap-pellee, Arthur Loftin, the landowner to the north, filed an answer and cross-petition, alleging that an ancient fence line’south of the barn was the boundary. The case was heard, ore tenus, and judgment entered finding and declaring the true boundary line to be as indicated by the survey line rather than the wire fence contended for by the appellants. This survey line closely paralleled the line contended for by appel-lee.

On this appeal, appellants contend: that the survey was improperly carried out, that this is a question of law, and is, therefore, not subject to the “ore tenus” rule; that the trial judge’s judgment is plainly and palpably erroneous; that the decree fails to describe the boundary line with sufficient particularity; that a strong presumption must be indulged in favor of a line marked by an old fence; and, that use of the survey line will destroy the integrity of other property lines in the vicinity. On the other hand, appellee contends the survey line was correct, and he relies on the “ore tenus” rule.

No useful purpose would be served by delineating the evidence in any detail. Suffice it to say that the evidence was in conflict. The issue as to the true and correct boundary line was a factual issue resolved by the judge in appellee’s favor.

The appellants contended for the wire fence — north of the barn. The appellee contended for the line of the ancient fence south of the barn. The surveyor fixed the boundary in accordance with appellants’ deed. The survey appears to have been properly run. We find no error therein nor in the contention that the boundary fixed is not specific enough. Adverse possession is not an issue.

We have carefully considered and reviewed the record and briefs in this cause, and are of the opinion, under the ore tenus rule, that the judgment should be, and is hereby, affirmed.

Of course, as the trial judge states in his judgment, only the parties hereto are bound by the judgment.

AFFIRMED.

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


text:
    FINANCIAL INVESTMENT CORPORATION and W. Clyde Jennings v. TUKABATCHEE AREA COUNCIL, INC., BOY SCOUTS OF AMERICA, a corporation.
    SC 2649.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.

      Albert W. Copeland, Montgomery, for appellants.
    J. Knox Argo, Montgomery, for appellee.
   BLOODWORTH, Justice.

Defendants, Financial Investment Corporation and W. Clyde Jennings, appeal from a judgment for plaintiff, Tukabatchee Area Council, Inc., Boy Scouts of America, holding, inter alia, that plaintiff owns legal title to certain disputed property. We reverse and render.

In February 1964, John and Mabel Haardt conveyed to defendant, Jennings, certain real property, described as follows:

“All that part of the following described real estate lying northwest of Genetta ditch which bisects the said following described real estate commencing at its western boundary and running thence NE to its eastern boundary, to-wit: All that part of the NE !4 of Section 26, Tp. 16, R. 17, lying West of the right-of-way of the Atlantic Coast Line Railroad Company containing 146.9 acres, more or less. Also, all that part of the SW 14 of the NW Vi of Section 25, Tp. 16, R. 17, lying on the West side of the Coast Line Railroad, containing 2 acres, more or less." [Emphasis supplied.]

In September 1967, the Haardts deeded the italicized portion of the property to plaintiff. When plaintiff learned that defendant, Financial Investment Corporation, was claiming title to the disputed property as successor in title to defendant, Jennings, plaintiff filed this declaratory judgment action, seeking to quiet title to the property in itself.

A hearing was held, ore tenus, at which time extraneous evidence of the acts and declarations of the parties was admitted in evidence, and a final judgment.was entered in favor of plaintiff, holding, inter alia, that it was the intention of the Haardts, which intent was understood by defendant Jennings, to convey to Jennings only that part of the property “lying northwest of Genetta ditch which bisects the said property commencing at its western boundary and running thence northeast to its eastern boundary . . . that Haardt retained title to the italicized portion of the property; and, that the Haardts subsequently conveyed legal title to the italicized portion to plaintiff, which is now the sole owner and holder of legal title to said property.

Defendants advance several contentions on this appeal for reversal, including the contention that the trial court erred to reversal in admitting extrinsic evidence of the parties’ intentions because the language of the deed in question was unambiguous. Since we agree with defendants as to this contention, we need not address the other issues.

It is, of course, a fundamental rule of construction that the real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, resort to arbitrary rules of construction is not required. Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975); Gulf Oil Corp. v. Deese, 275 Ala. 178, 153 So.2d 614 (1963).

The courts, in construing conveyances, must ascertain and give effect to the intention and meaning of the parties, “to be collected from the entire instrument.” Bra-shier v. Burkett, 350 So.2d 309 (Ala.1977); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951).

Plaintiff argues the trial court was correct in admitting extrinsic evidence of the parties’ intentions because, it contends, the italicized language in the deed is ambiguous. It is, of course, true that where a deed is of doubtful meaning, or where the language of a deed is ambiguous, the intent of the parties to the deed as to what property is conveyed may be ascertained by reference to facts existing when the instrument was made, to which the parties may be presumed to have had reference. Lietz v. Pfuehler, 283 Ala. 282, 215 So.2d 723 (1968).

However, if the language is plain and certain, acts and declarations of the parties cannot be resorted to, to aid construction. Id.; Hall v. Long, 199 Ala. 97, 74 So. 56 (1916).

We have carefully examined the language of the description in the deed, and we conclude that the language contained therein is not, on its face, ambiguous. In fact, the plain meaning of the language of the italicized portion, its punctuation and juxtaposition to the other portion, admit of but one conclusion, that the Haardts intended to convey to defendant, Jennings,' the italicized portion of the description.

In ascertaining the intention of the parties, the plain and clear meaning of the deed’s terms must be given effect, and parties must be legally presumed to have intended what is plainly and clearly set out. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973).

Plaintiff argues that this case is controlled by the ore tenus rule and that although no specific finding of ambiguity was made by the trial court, our court will presume such a finding was made. We agree that the only logical assumption is that the trial judge found the deed’s language to be ambiguous; otherwise, he could not have admitted any extrinsic evidence as to the parties’ intentions. We cannot agree, however, that the ore tenus rule dictates af-firmance, for we think the trial court’s implied finding of ambiguity was palpably incorrect as we have already pointed out. For this reason, this cause is due to be reversed and rendered.

REVERSED AND RENDERED.

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