author: TORBERT, Chief Justice.

text:
    Thomas H. REDMOND and Ruth Ann Redmond v. Lowell HARRELSON.
    SC 2328.
    Supreme Court of Alabama.
    Feb. 3, 1978.

      John W. Parker, Mobile, for appellants.
    Emmett R. Cox and Robert H. Allen, Mobile, for appellee.
   TORBERT, Chief Justice.

Appellee Lowell Harrelson filed suit against appellants Ruth Ann and Thomas H. Redmond seeking damages on a $50,-000.00 promissory note executed by the Redmonds to Harrelson. The Redmonds’ answer contained a general denial, an affirmative defense of failure of consideration on the note, a demand for a jury trial, and a counterclaim against Harrelson for damages for breach of an agreement executed between the parties. The jury demand and counterclaim were struck one day prior to trial by the trial court with the express stipulation that the Redmonds could later assert this claim in an independent action. Judgment was rendered against the Redmonds in the amount of $58,823.00. This appeal followed.

Harrelson and Mr. Redmond are partners in S.G.H., Ltd., a Georgia general partnership. S.G.H. owns the Pascagoula Motel in Jackson County, Mississippi, which was formerly operated under a Rodeway Inns franchise. Mr. Redmond, who also serves as president of Cornith Leasing Corporation, sought to purchase the Pascagoula Motel from Harrelson. On March 5, 1976 Harrel-son and Mr. Redmond contemporaneously executed four documents as follows: (1) Agreement; (2) Lease Agreement; (3) Promissory Note; and (4) Mutual Release and Settlement Agreement.

In the document titled “Agreement,” Harrelson agreed to sell the Pascagoula Motel to Mr. Redmond and to indemnify Mr. Redmond for obligations and liabilities arising out of the operations of the Pascagoula Motel prior to March 8,1976. Mr. Redmond agreed to seek financing to purchase the motel.

The second document, “Lease Agreement,” provided for leasing Pascagoula Motel to Cornith Leasing Corporation and was signed by Mr. Redmond as president of the corporation. The term of the lease was from March 8,1976, through the last day of August, 1976.

The “Promissory Note” executed March 5, 1976, is the subject of this appeal. Consideration for the note is recited on its face as being “for value received.” The first installment was due April 8, 1976.

The fourth document in evidence, the “Mutual Release and Settlement Agreement,” stated that a suit was pending in Mobile Circuit Court by Harrelson against Mr. Redmond and also a counterclaim by Mr. Redmond against Harrelson. It further recited that in consideration of settlement of that original suit and counterclaim, Mr. Redmond had paid $10,000.00 in cash to Harrelson and Mr. and Mrs. Redmond had executed and delivered to Harrelson a $50,-000.00 promissory note.

Briefly stated, these four documents are interrelated as follows:

(a) The Agreement refers to the Note and the Lease, stating that default under the provisions of either instrument by Mr. Redmond or his corporation results in forfeiture of Mr. Redmond’s interests in S.G.H.

(b) The Lease states that the Lessor could terminate the lease if Mr. Redmond defaulted in the payment of installments due on the Note.

(c) The Note makes reference to the Lease and recites that if Cornith Leasing Corporation fails to abide by the conditions of the Lease, the Note becomes due and payable.

(d) The Release refers to the Note and states that a $50,000.00 note and $10,000.00 in cash were given as consideration for the Release.

As of the date of execution of these four documents, $15,000.00 was owed to Rode-way Inns by Harrelson’s company, Southern Hosts Inns, on the franchise for Pascagoula Motel. Harrelson had been negotiating for several months to terminate this Rodeway Inn franchise. Mr. Redmond knew of these negotiations but not of the $15,000.00 ar-rearage. He became aware of the debt through a letter from Rodeway Inns on April 12, 1976. Mr. Redmond testified at trial that this delinquency on the franchise prevented him from acquiring adequate financing to purchase the Pascagoula Motel. The first installment on the Note became due April 8,1976, and was not made by the Redmonds.

The Redmonds sought at trial to show by parol evidence that the Agreement was a part of the consideration for the Note. They also attempted to prove that Harrel-son breached his warranty in the Agreement by failing to indemnify the Redmonds for the $15,000.00 arrearage on the motel franchise and that this breach constituted a failure or partial failure of consideration on the Note.

Appellants raise two issues which they contend call for this court to reverse and remand this case for a new trial. The Red-monds first assert that the trial court committed reversible error by disallowing the parol evidence concerning the true consideration for the Note. Secondly, the Red-monds argue that the trial court erroneously struck their counterclaim which they contend is a compulsory counterclaim under Rule 13(a) of the Alabama Rules of Civil Procedure. We are persuaded by appellants’ arguments on both issues and therefore reverse and remand this case for a new trial.

Promissory notes, such as the Note in controversy in the present case, are subject to the general rule that a valid written instrument cannot be varied or contradicted by parol evidence. Blake v. Coates, 292 Ala. 351, 294 So.2d 433 (1974); Jackson v. Sample, 234 Ala. 75, 173 So. 510 (1937); Dean v. Lyde, 223 Ala. 394, 136 So. 857 (1931). However, an exception exists to this general rule. This court has stated that parol evidence is admissible to show the true consideration for a note if the terms of the instrument are not varied or contradicted thereby. First Nat. Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64 (1939); Wells v. Drane, 206 Ala. 583, 90 So. 898 (1921). Parol evidence is also admissible to show failure of consideration. Blount County Bank v. Robinett & McCay, 23 Ala.App. 145, 122 So. 802 (1929); Phillips v. Matthews, 205 Ala. 480, 88 So. 641 (1921); Parker v. Bond, 121 Ala. 529, 25 So. 898 (1898).

Applying these rules of law to the present case, we find that the trial court erroneously, disallowed Mr. Redmond’s testimony as to consideration for the Note and Harrelson’s alleged breach of the indemnification warranty in the Agreement. By this parol evidence, the Redmonds attempted to explain, not vary or contradict, the expressed consideration for the Note recited ambiguously on the face of the Note as being “for value received.” We further note that the precluded testimony was essential to proving the Redmonds’ defense of failure of consideration.

As previously stated, we find that the trial court erroneously struck the Red-monds’ counterclaim prior to trial. By this counterclaim, the Redmonds sought damages for breach by Harrelson of the indemnification provisions in the Agreement contemporaneously executed by the parties with the Note sued on in the primary action brought by Harrelson. A counterclaim, such as the one involved in the present appeal, which arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim is compulsory and must be asserted in the pending case. Ala.R.Civ.P. 13(a).

It is of further importance that the Red-monds’ counterclaim raised the same issues as did their affirmative defense of failure of consideration. Certain facts crucial to the issues raised in the counterclaim were therefore determined in the primary suit. Thus, in spite of the stipulation to the contrary, the trial court’s action effectively barred subsequent litigation on the claim for breach of the Agreement because of the doctrine of collateral estoppel. Ala.R.Civ.P. 13(a) and Committee Comments. See also 6 Wright & Miller, Federal Practice and Procedure: Civil § 1410 (1971).

Accordingly, this cause is hereby reversed and remanded for new trial.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Allen G. SMITH, et al. v. Ray NELSON.
    SC 2595.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Wayne H. Smith, Heflin, for appellants.
    Lewis H. Hamner, Jr., Roanoke, for ap-pellee.
   EMBRY, Justice.

This is a disputed boundary line case wherein Ray Nelson was plaintiff, and Allen G. Smith, Ruby N. Smith, John H. Mitchell and Alice Jane Mitchell were defendants. The trial court heard the evidence without a jury and its memorandum of opinion provides an excellent summary of the evidence:

“Ray Nelson, plaintiff, brought this action against Allen G. Smith and wife, and John H. Mitchell and wife, defendants, to establish a disputed boundary line between the plaintiff on the south and the defendants on the north. Such cases are difficult to determine and the expense is usually more than the value of the land. The Court has carefully considered the evidence and without Solomon’s wisdom has determined that the evidence and the applicable law supports the claim of the plaintiff.
“The plaintiff claims the boundary line between the parties is the county line between Randolph and Cleburne Counties which is marked by an agreed corner of the northeast corner, Section 3, Township 18, Range 10, Randolph County, and marked by an iron stake and rock pile at the northwest corner of said section, or if the disputed corner as claimed by the plaintiff is not the northwest corner of the section, then plaintiff claims to the disputed corner by adverse possession.
“The defendants claim that the northwest corner of said section three as established by the government survey is about 150 feet south of the corner claimed by the plaintiff.
“None of the surveyors purported to tie the disputed corner into the government survey. Plaintiff’s surveyor surveyed the property line east and west between the corner claimed by plaintiff and the agreed corner at the northeast corner of section three.
“The defendant’s surveyor, Huxford, surveyed a straight line from east to west over three miles using what he considered established corners including the agreed corner at the northeast corner of section three. He indicated that the government survey was of no help to him in trying to establish the disputed corner.
“There is, therefore, no evidence before the Court as to government survey establishing the Cleburne-Randolph County line in this area.
“The plaintiff and his predecessors in title have adversely held the property up to this claimed line for more than 40 years next before any dispute arose over the location of the disputed corner.
“All the parties claim under a common grantor, and it is the opinion of the Court that the grantor, Eva Pritchard, used the Turley corner to establish her fence line between the property she retained in Cle-burne County and the property she sold to plaintiff’s predecessor in title in Randolph County in 1937. At the time of the sale there existed a fence corner believed to be the northwest corner of Section 3 by the adjoining landowner, Turley. The corner was marked by an iron pin covered with rocks which iron pin is now encased in concrete. This is the northwest corner of the plaintiff’s property whether or not it is the section corner. The Court is not inclined to relocate a corner so long established.
“There is no validity to defendants’ claim for damages.
“A judgment will be entered in accordance with this opinion.”

Upon this evidence the trial court decreed:

“It is the ORDER, JUDGMENT AND DECREE of the Court that the true boundary line between the parties in this case is described as follows:
Begin at a fence corner marked by an iron stake encased in concrete covered by a rock pile at or near the northwest corner of Section 3, Township 18, Range 10, Randolph County, Alabama, and run easterly in a straight line to the recognized and existing rock pile representing the northeast corner of said Section 3.
“The defendants will remove their fences located south of the aforesaid line.
“The Court finds for plaintiff on defendants’ counter-claim.
“The costs of Court are taxed one-half to plaintiff and one-half to defendants. Let a copy of this Order be filed in the offices of the Probate Judge in Randolph and Cleburne Counties, Alabama.”

No authority need be cited for the recognized rule that a decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct, and in such cases the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust.

Equally applicable here is the principal that a decree fixing a boundary line between coterminous owners must only be supported by credible evidence. Snider v. Shirley, 341 So.2d 677 (Ala.1977).

The record supports the trial court’s conclusion that there was no evidence according to a governmental survey of the location of the Cleburne-Randolph County line in this area; therefore the county line had no bearing on the location of the disputed corner. Also, there is evidence from which the trial court could have concluded that Nelson and his predecessors in title have adversely held the property up to the disputed corner for more than 40 years before any dispute arose.

We find ample supporting evidence for the judgment and, after a review of all the evidence, we cannot say the judgment of the trial court is plainly wrong or manifestly unjust; therefore, the judgment is due to be affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    CITY OF GUNTERSVILLE, a Municipal Corporation v. Robert SHULL et al.
    SC 2643.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    J. Terry Huffstutler, Jr., Guntersville, for appellant.
    No brief for appellees.
   BLOODWORTH, Justice.

This is an appeal by the City of Gunters-ville from a judgment, after trial ore tenus, denying the city the relief it sought and holding that the present use of certain property in the City of Guntersville constituted neither a violation of the zoning ordinance nor a nuisance. We reverse.

Plaintiff, the City of Guntersville, brought suit against Lamar Williams and Christy Ann Williams, as the owners, and Robert Shull, as the tenant and lessee, of certain real estate located in the City of Guntersville, namely a large house located on a lot on the corner of Scott and Hill Streets in an R-3 zone, according to the Zoning Ordinance, Code and Maps of the City of Guntersville. The city contended the use to which the property is being put constitutes a nuisance and a violation of the zoning ordinances in that the house located thereon is operated as a rooming house or a boarding house. The trial court held, inter alia, that it “is not reasonably satisfied that the present use of the property constitutes either a violation of the zoning ordinance or that such use is a nuisance.” The city confesses in brief that it failed to prove the allegations of a nuisance; thus that part of the court’s judgment is not an issue on this appeal.

The only issue before us is whether, or not, the use of the dwelling house located on the subject property is either a “Rooming House and/or Boarding House,” as such terms are defined by the zoning ordinances of the City of Guntersville, and therefore constitutes a violation of the zoning laws of the City of Guntersville, Alabama. We answer the question in the affirmative and reverse and remand.

It is undisputed that the dwelling house on the subject property, located at the corner of Scott and Hill Streets in the City of Guntersville is located in an “R-3” zone. It is likewise undisputed that the “ USES PERMITTED” in an “R-3” zone are “Dwellings and apartments for any number of families.” It is also undisputed that the “USES PERMITTED ON APPEAL" in an “R-3” zone are “Clubs, not conducted for profit; rooming and boarding houses.” The undisputed evidence is also that there was no “appeal” in this case. According to the zoning ordinances a “BOARDING HOUSE” is “A building other than a hotel, cafe or restaurant where, for compensation, meals are provided for three (3) or more persons” and that a “ROOMING HOUSE” is defined as “Any building or a portion thereof which contains not less than three (3) or more than nine (9) guest rooms which are designed or intended to be used, let, or hired out for occupancy by individuals for compensation whether paid directly or indirectly.”

It appears likewise to be undisputed that the dwelling on the subject property called “Shull Apartments” was established by the Marshall-Jackson Mental Health Board as a foster placement facility for former residents of “Hope House” located in Scotts-boro, Alabama, with the purpose being to house former patients of Bryce Hospital who no longer qualified to stay at Hope House in Scottsboro. These former patients were placed by the Marshall-Jackson Mental Health Board which is a 100 percent funded program, with 75 percent being from federal funds and 25 percent from state funds. The dwelling on the property in question provides living quarters for these patients and is a duplex type building in which male patients are housed downstairs and female patients upstairs. At the time of trial a total of six former Bryce patients were housed in the structure. It is undisputed that these patients who reside at “Shull Apartments” are in some degree mentally or physically handicapped and are all former patients of Bryce Hospital. It appears from the testimony that the purpose of the operation of “Shull Apartments” is to provide a sort of “halfway” house for former mental patients at Bryce Hospital in an attempt to “get them to integrate back into the community.” The Shulls are paid by Bryce Hospital “for services that they render these people.” Each of the patients testified but it is not clear from their testimony as to whether Mr. or Mrs. Shull prepared the meals and serve the patients or whether some of the patients prepare their own meals with food bought by the Shulls and brought to them. It does seem clear from the testimony that the patients secure their meals in one of these two ways. Further, the testimony appears to be uncontroverted that Bryce Hospital or the state pays “the Shulls for services that they render these people.” Representatives of the Mental Health Department and Bryce Hospital supervise and inspect “Shull Apartments.”

Before proceeding to a decision in this case, we think it appropriate to state some well-established rules respecting zoning.

Zoning is an exercise of the police power of a city and is a legislative matter. Come v. Chancey, 289 Ala. 555, 269 So.2d 88 (1972); Haas v. City of Mobile, 289 Ala. 16, 265 So.2d 564 (1972). It is well-established law in Alabama that a zoning ordinance may place upon property owners reasonable restrictions and requirements in the use of the owners zoned property. Haas v. City of Mobile, supra. A municipality may employ injunctions to prevent violations of its zoning ordinances. Rose v. City of Andalusia, 249 Ala. 333, 31 So.2d 66 (1947).

Taking the uncontroverted evidence presented by the city (none was presented by the appellees) we think it clear that the use of the dwelling on the subject property constituted a violation of the R-3 residential district in which the property was located since it was not within the “ USES PERMITTED : Dwellings and apartments for any number of families.” To the contrary, it appears to be clear from the evidence that it was either a “rooming house” or a “boarding house” which is among the “USES PERMITTED ON APPEAL." The evidence is undisputed that there was no appeal in this case to permit such use. We think that the trial court misapplied the law to the evidence and is due to be reversed because it found that the present use of the property did not violate the zoning ordinances of the City of Guntersville, Alabama. The trial court’s decree speaks to the obvious fact that “these people are obviously dependent and handicapped,” that they “need a varying degree of help and assistance,” that none of these “people pose any real or present danger to the neighborhood,” that in every residential community “there are dependent and handicapped people,” who “present no problem,” that there is “no evidence that any of these particular people either need or deserve to be restricted,” and, that “Every law abiding person has a right to live in and be part of any community. The City Zoning Ordinance of Guntersville cannot be construed to prevent handicapped people from living in a residential area.”

This Court certainly has no quarrel with these observations and is in agreement with them. But, we believe that the trial judge has misconceived the issue. The purpose of the city zoning ordinances of Guntersville is certainly not to prevent the handicapped from living in residential areas.

Applying the rules of zoning construction, and the clear and obvious meaning of the “USES PERMITTED” in the R-3 zone it seems clear to us that the dwelling in question was not a dwelling, or apartment, for any number of families, but to the contrary was a “rooming” or “boarding” house, which was a violation of the zoning ordinance of the City of Guntersville.

It is therefore that this cause must be reversed and remanded to the trial court for the entry of a decree in conformity herewith.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: FAULKNER, Justice.

text:
    CITY OF MONTGOMERY et al. v. CROSSROADS LAND COMPANY, INC., et al.
    SC 2724.
    Supreme Court of Alabama.
    Feb. 3, 1978.

      Walter J. Knabe, Randall C. Morgan, Montgomery, for appellants.
    Truman Hobbs and Robert D. Segall, Montgomery, for appellees.
   FAULKNER, Justice.

Plaintiffs, present and future subdivision developers in Montgomery, brought this action for declaratory and injunctive relief to prevent enforcement of Section 4-E of the Subdivision Regulations of the City, which requires a subdivider to dedicate .018 acres per dwelling unit, or, where such dedication is deemed impracticable by the Planning Commission, to donate a sum equal to the fair market value of the land that would otherwise be dedicated. The fees received in lieu of such dedication are “placed in special fund to be used only for the acquisition of land for parks and/or recreation in the same neighborhood.”

The Montgomery County Circuit Court granted the plaintiffs’ motion for summary judgment and enjoined enforcement of Section 4-E, holding that the section is unauthorized by the State of Alabama and that it is unconstitutional. We affirm.

The City contends that Section 4-E is authorized by Title 37, § 798, Code of Alabama of 1940 (Recomp.1958) which states, inter alia:

“The planning commission shall adopt regulations governing the subdivision of land within its jurisdiction. Such regulations may provide for the proper arrangement of streets in relation to other existing or planned streets and to the master plan, for adequate and convenient open spaces for traffic, utilities, access of firefighting apparatus, recreation, light and air, and for the avoidance of congestion of population, including minimum width and area of lots. Such regulations may include provisions as to the extent to which streets and other ways shall be graded and improved and to which water and sewer and other utility mains, piping, or other facilities shall be installed as a condition precedent to the approval of the plat.”

While § 798 authorizes the planning commission to adopt regulations providing “for adequate and convenient open spaces for . recreation,” it does not specifically authorize the commission to require the payment of a fee in lieu of the dedication of the land as a condition to approval of the plat.

Nor does § 798 authorize the dedication requirements by implication or as a necessary incidental power. This point is best illustrated by comparing the statutory scheme for dedication of streets and other improvements. At the time of adoption of § 798, which also authorizes the planning commission to adopt regulations providing “for the proper arrangement of streets in relation to other existing or planned streets and to the master plan,” specific provisions for dedication of streets were already authorized by statute. Title 56, §§ 12-15, Code of Alabama of 1940 (Recomp.1958). The same is true for improvements, included in the planning commission’s authority under § 798 and specifically provided for by Title 37, §§ 512, et seq., Code of Alabama of 1940 (Recomp.1958).

“Municipal corporations possess no inherent power to levy assessments for local improvements. There was no such power at the common law. In order therefore to justify such assessments, it is necessary that authority for them be found in legislative act; the presumption being that, in the absence of legislative grant providing for a special source of revenue for public improvements, funds for that purpose are to be raised by an exercise of the power of general taxation. Local assessments are in derogation of the common-law rights of attingent property owners, and for that reason it is commonly said that the statutory authority under which they are levied is to be strictly construed and followed.” City of Birmingham v. Wills, 178 Ala. 198, 207, 59 So. 173, 175 (1912).

Armstrong v. City of Montgomery, 251 Ala. 632, 38 So.2d 862 (1949). We hold that, without specific legislative authorization, the City of Montgomery has no power to require the payment of a fee in lieu of dedication of land for public parks. We are not to be understood as holding that the City cannot require a dedication of land for “recreation” within the subdivision.

Having thus decided, we pretermit discussion of whether Section 4-E is an unconstitutional deprivation of property without just compensation.

AFFIRMED.

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

      . The pertinent portions of Section 4-E provide:
      “(3) Dedication or reservation of land for public open space, or payment of a fee in lieu thereof, shall be required in all residential subdivisions. A minimum of .018 acres per dwelling unit shall be dedicated for public parks or playgrounds. Where dedication is deemed impracticable by the Planning Commission due to size, location, topography, or other geographic feature of the land, the subdivider shall donate a sum equal to the fair market value of the land that would otherwise be dedicated to a fund marked for acquisition of park facilities.
      “(4) The approval and recording of the final plat shall be held in law and equity to be a conveyance in fee simple of such portions of the land platted and noted as dedicated to the public for recreational uses. Acceptance of any land so dedicated shall not become final until ratified by a resolution of the Board of Commissioners of the City of Montgomery. Failure of the Board to ratify such dedication within one year following the recording of the final plat shall result in the dedicated land reverting to the subdivider.
      * * * * * *
      “(6) In the event a fee in lieu of land is deemed appropriate by the Planning Commission, such fee shall be payable to the City of Montgomery at the time that the subdivision is determined to be seventy-five per cent (75%) complete; and that such fee shall be placed in special fund to be used only for the acquisition of land for parks and/or recreation in the same neighborhood. The boundaries of neighborhoods shall be as defined by the Neighborhood Analysis prepared by the Department of Planning and Development of the City.”


author: BEATTY, Justice.

text:
    Thomas SANFORD et al. v. Early SANFORD et al.
    SC 2444.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Jack Clarke of Henley & Clarke, North-port, for appellants.
    Robert V. Wooldridge, Jr., Robert V. Wooldridge, Jr., Tuscaloosa, John Martin Galese, Birmingham, for appellees.
   BEATTY, Justice.

Appeal by Thomas Sanford and two other children of Marion J. Sanford from a judgment of the trial court confirming an auction sale of real estate conducted at the Tuscaloosa County Courthouse on July 2, 1976.

All parties in this action are children of Marion J. Sanford, deceased. After their father’s death, Thomas and James Sanford brought an action against their fourteen brothers and sisters seeking a sale for division of their father’s 147 acre estate, alleging that the property could not be equitably divided. Attorney John Galese, a husband of one of the defendants, filed the suit for Thomas and James Sanford; however, he subsequently withdrew as counsel for Thomas Sanford. The defendants’ answer to the complaint admitted its allegations. The controversy then was submitted upon the pleadings and the trial court, after finding that the property could not be equitably divided, ordered the sale of the property by auction.

Mrs. Barbara Harris, Director of the Register’s Division of the Tuscaloosa County Circuit Clerk’s Office, advertised the sale in the Graphic newspaper once a week for three consecutive weeks, and Thomas Sanford advertised the sale eight times in The Tuscaloosa News. On July 2, 1976 the auction was conducted by Mrs. Harris with the assistance of Mr. Galese. During the auction all five parcels were offered for sale separately and bids were taken, but no bids were accepted. Then parcels two, three and four were offered together for sale and bids were taken, but none were accepted. Finally, all five parcels were offered together for sale and the bid of the highest bidder was accepted. Mr. Galese, who assisted by conducting the bidding while Mrs. Harris recorded the bids, sold all five parcels together to Earnest Sanford for $37,-600.00. The high bids for the various parcels were as follows:

Parcel I $ 4,300.00 Thomas Roberts
Parcel II $ 2,600.00 Thomas Roberts
Parcel III $ 4,100.00 Thomas Roberts
Parcel IV $ 6,000.00 Florence Galese
Parcels II, III, IV $26,000.00 Earnest Sanford
Parcel V $ 1,700.00 Richard Holman
All five parcels $37,600.00 Earnest Sanford

Several days after the auction, Mrs. Harris filed her report of the sale in the circuit court, certifying Earnest Sanford as the highest and best bidder. Thomas Sanford filed an exception to the register’s report, and he requested and received two hearings on his objections to the register’s report. After hearing testimony about the fairness of the property’s sale price the trial court entered an initial order confirming the sale. Following this, Thomas Sanford moved to vacate the trial court’s order and filed various discovery pleadings. In his motion to vacate the judgment he called attention to an offer by one Glendon Sullivan to purchase the 147-acre tract for $51,000.00 and Sullivan’s tender of a 10% deposit into court. Although some discovery was allowed, the trial court in its final decree on February 9, 1977 overruled the plaintiffs’ motion to vacate the judgment and upheld its prior judgment affirming the sale.

Among the issues the plaintiffs have raised here is: Whether the price obtained at the sale was inadequate.

The appellants argue that the trial court erred when it affirmed the sale to an interested party because the sale price was inadequate. They cite DeLoach v. White, 202 Ala. 429, 80 So. 813 (1919) for the proposition that inadequacy of price and not gross inadequacy of price is the standard for reviewing judicial sales when the purchaser is not a stranger. Although De-Loach does not establish this, the standard for reviewing judicial sales when the purchaser is not a stranger is set out in Spence v. Spence, 239 Ala. 480, 195 So. 717, 723 (1940):

The purchaser at such a sale is due to have it confirmed if the price bid is measurably adequate, or not greatly less than its market value, although some of the parties may offer to bid a much larger sum at resale, (citations omitted) (emphasis added)

Accord, Schloss-Sheffield Steel & Iron Co. v. Borden, 201 Ala. 628, 79 So. 190 (1918).

The record shows that there were at least fifty people at this public auction held in the lobby of the courthouse. It also discloses that there were a number of realtors present who frequently attend auctions such as this. The auction sale was advertised according to law in the Graphic and additionally in The Tuscaloosa News. Although there is conflicting evidence in the record, there is evidence which furnishes a reasonable inference that the property was sold for an adequate price. Several realtors who bid on the combined five parcels testified that their bid limit for the property was about $35,000.00 and that the purchase price was adequate. Several of the heirs also testified that the purchase price was an adequate one. The total amount bid for all five parcels by adding each of the separate parcel bids is as follows:

Parcel I $ 4,300.00
Parcel II 2,600.00
Parcel III 4,100.00
Parcel IV 6,000.00
Parcel V 1.700.00
$18,700.00

The total amount bid for all five parcels using combined bids is as follows:

Parcel I $ 4,300.00
Parcels II, III, IV 26,000.00
Parcel V 1.700.00
$32,000.00

And on the question whether the purchase price was measurably adequate, Sullivan’s offer after the auction sale is irrelevant. Spence v. Spence, supra.

The appellants also argue that the trial court erred when it affirmed the auction sale because of irregularities in the bidding procedure of John Galese. They cite us to testimony that Glendon Sullivan made a bid about the same time or just before Mr. Galese said “sold” and that Mr. Galese “went fast” when he said “37,600 once, twice, and sold.” Although the evidence is conflicting, there is evidence in the record which will furnish a reasonable inference that there were no irregularities in Mr. Galese’s bidding procedure. The record discloses this testimony by Mr. Glendon Sullivan:

Q I am going to ask you something. I am going to get over here and I am not trying to be picky, but this is important. The judge has got to rule on this case. Now he is saying sold for the third time. Now what did you say and will you say it about as loud as you think you said it?
A Just before he said the third time, I was going to raise it to thirty seven eight.
Q What did you say?
A I said thirty seven and he said sold. Q You never said thirty eight?
A I never could get it out.

Further, several other persons present at the auction testified that there was adequate time for each of them to have made an additional bid before Mr. Galese said “sold” to Mr. Earnest Sanford. And since the auction room was fairly noisy from people talking among themselves Mr. Ga-lese may not have been aware of Mr. Sullivan’s bid until after he said “sold.” The record discloses Mr. Galese’s testimony to this effect:

A At that time, after thirty thousand dollars or somewhere in that neighborhood, there were in essence two bidders. There was Mr. Glendon Sullivan and Mr. Ernest Sanford and they were on opposite ends of the room. The bidding did not jump at very large increases. I don’t remember specifically but there were some fifty dollar increases and possibly one hundred dollars and possibly some higher, but they were relatively small increases, and the bidding took place in this fashion: Mr. Sanford would bid. I would call the bid once twice and the third time, and right before the third bid Mr. Sullivan bid, waiting until the very last moment to bid, and then Mr. Sanford would bid and the same thing, of course, would go with Mr. Sullivan, not bidding the first time the bid was called but toward the end of the bid. The very last time the bidding took place, it was a $37,600.00 bid by Mr. Ernest Sanford who was on my right. I called the bid 37,600 going once and paused, 37,600 going twice and paused, 37,600 going three times, sold to Ernest Sanford. As I said sold, the word sold, before I got the word to out, sold to Ernest Sanford, after the word sold but before the word to, I noticed Mr. Glendon Sullivan raising his hand and he attempted or was starting to say something. I don’t remember what he said. I did say to him T am sorry, the bidding is closed.’ .

The appellants contend that it was improper for Mr. Galese to have acted as the auctioneer and that he didn’t follow the procedures he outlined at the beginning of the auction. However, Mrs. Harris testified:

Q Tell the court, please, how I [Mr. Ga-lese] came about assisting you in the conducting of the sale? How did that come about?
A You asked me if you could and I said it would be alright with me. Usually if I had a large table, I would ask a local attorney to help me.
Q Is it standard or operating procedure here in Tuscaloosa County for you as director of that division to ask for assistance in conducting sales?
MR. HUST: We object.
THE COURT: Overrule.
A I have done it before.
Q Your office doesn’t maintain any specific written procedure for conducting such sale?
A No, sir.
Q You just conducted it the way you usually conduct them?
A Yes, sir.
Q And this sale was conducted in a manner that was consistent with the way you usually conduct sales of this type, is that right?
MR. HUST: I object. I don’t believe the manner other sales are conducted has anything to do with it.
THE COURT: Overrule.
A Yes, it was.
Q There was nothing unusual about this sale, was there?
A No, sir.

Despite the conflict in the evidence, there was testimony that Mr. Galese did follow the procedure he established before the auction began. Thus, there is evidence furnishing a reasonable inference that there was no impropriety by Mr. Galese acting as the auctioneer and that he did not conduct the auction improperly.

The appellants contend that it was error for the trial court to award $3,700.00 for attorney’s fees to Mr. Galese, citing Pate v. Law, 277 Ala. 608, 173 So.2d 596 (1965). In Pate this Court observed:

The allowance of attorney’s fees under the above statute [Tit. 46, § 63, Alabama Code of 1940 (Recomp.1958)] is on the basis of, and solely for, benefits inuring to the common estate, and the tenants in common, (citations omitted) .

What evidence is there that Mr. Galese rendered services which inured to the benefit of the common estate? Some of the services rendered by Mr. Galese involved preparing the complaint seeking partition, assisting Mrs. Harris with the auction, attending two hearings after the auction, attending the pre-trial conference, and preparing two briefs for the trial court. Thus, the record discloses that Mr. Galese performed work which inured to the benefit of the estate, i. e., securing a final disposition of the auction sale so that the proceeds could be distributed to the heirs. The record also shows that Mr. John Owens, a Tuscaloosa County attorney, testified that the minimum acceptable legal fee for the attorney who brings the simplest kind of sale for division would be ten percent of the sale price, i. e., $3,600.00; and in this case, considering the complexities of parties and number of hearings, a reasonable legal fee would be twenty percent of the sale price, i. e., $7,500.00. Mrs. Louise Turner, another Tuscaloosa County attorney, testified that a reasonable legal fee in this case would be between four and five thousand dollars. Thus, there is evidence in the record which furnishes a reasonable inference that Mr. Galese is entitled to the attorney’s fee of $3,700.00 awarded by the trial court.

The appellants further contend that the trial court erred in denying their motion for an order that certain facts be deemed admitted under Rule 36(a), ARCP. This motion was made on December 23, 1976, after the hearing where testimony was taken concerning the adequacy of the bid price, but before the hearing on the allowance of attorney’s fees to Mr. Galese. In brief the appellants maintain that after their motion was filed on December 23rd no answer was submitted before they filed a second motion on January 25, 1977 requesting that the facts in the original motion be deemed admitted. However, this argument overlooks the trial court’s order of January 20, 1977. That order granted to defendants protective relief from answering appellants’ questions in their request for admissions of fact with the exception of those questions concerning attorneys’ fees which the court stated would be determined later by the trial court. Thus there was no error by the trial court in connection with this motion.

Lastly the appellants argue that the trial court erred in admitting the testimony of Thomas Roberts, Lee Pake and John Boles on the value of the real estate because they were not qualified as experts. The trial court did not err in admitting Thomas Roberts’ testimony because there is no requirement that a witness who testifies to the adequacy of a real estate price be an expert. Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315 (1910). Additionally, because the appellants did not make a timely objection to the admission of testimony by Lee Pake, who viewed only a portion of the property, and John Boles, who viewed none of the property, they cannot now be heard to complain. Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976).

On review of an ore tenus case dealing with a sale of lands for division, we do not weigh the evidence regarding its reasonably satisfying effect on the issues tendered, but in considering it we indulge all favorable presumptions to sustain the trial court’s conclusions which we will not disturb unless they are palpably erroneous or manifestly unjust. Sieben v. Torrey, 252 Ala. 675, 42 So.2d 621 (1949).

Finding no error the judgment of the trial court is due to be, and is, affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Theodore J. BAUMAN et al. v. Joseph M. HAYES et al.
    SC 2730.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Richard H. Ramsey, III, Dothan, for appellants.
    W. G. Hardwick and Jere C. Segrest, Dothan, for appellees.
   MADDOX, Justice.

The sole question on this appeal is: Did the trial court err in granting a motion to dismiss?

Plaintiffs, Theodore J. Bauman and Nathan Greenberg, filed a complaint seeking specific performance and an award of damages against the defendants, Joseph M. Hayes, Sue H. Hayes, Billy G. Hayes, Jo Anne Hayes and Blanche I. Hayes.

Plaintiffs allege that in December of 1966, the parties entered into an “Incorporation and Sales Agreement” whereby plaintiffs Bauman and Greenberg agreed to develop, manage and sell a parcel of land owned by the defendants. In return, the defendants were to receive $1,500 per acre and defendants, Joseph M. Hayes, Billy G. Hayes and Blanche I. Hayes were to receive 50% of the outstanding stock of the newly formed corporation. The remaining 50% of the stock would be controlled by Greenberg and Bauman.

The alleged agreement between the parties, which was attached as an exhibit to the complaint, provided, in part, that the property would be conveyed to the corporation in tracts of approximately ten acres each. The agreement provided further:

“It is further understood and agreed that in the event the corporation does not develop the first approximate ten acre tract within eighteen (18) months from the date of this Agreement, then the Corporation agrees to reconvey it to the Hayes and this Agreement shall then become null and void as to the entire tract. It is further agreed that after the first approximate ten (10) acre tract is conveyed by the Hayes and the same is then developed, then the Corporation may make demand for another ten (10) acre tract to be conveyed by the Hayes to the Corporation, but such demand must be made within five (5) years from the former conveyance and if it is not made within said period, then this Agreement shall become null and void as to the remaining tract of said land. If such tract of land is not developed within eighteen (18) months, then the Corporation agrees to re-convey the same to the Hayes and the Agreement shall become null and void. The same shall apply to any additional approximate ten (10) acre tract conveyed by the Hayes to the Corporation until the entire tract has been developed or has failed to be developed. It is further agreed and understood that there must be continuous development of a minimum of ten (10) acres each five (5) years or this Agreement will become null and void as to any lands not then conveyed. ‘Development’ means that said lands are to be developed in accordance with the then existing City of other regulations for lands for sale for residence use.
“In order to further guarantee the proper development and utilization of said property, it is specifically understood and agreed that the Hayes Parties hereto do hereby grant unto said Corporation an unconditional option to purchase said property, subject to the terms and conditions as set out herein. In the event of the death of any of the Parties hereto, before completion of any of the terms and conditions as set out herein, it is specifically understood and agreed that this Agreement shall be binding upon the heirs, administrators, executors, or assigns, of any of the parties hereto.”

The first ten-acre tract was acquired on July 9,1971. Plaintiffs allege that on various occasions prior to and on November 28, 1975, they informed the defendants that they were ready to acquire an additional ten-acre tract. Plaintiffs also alleged that the defendants made it known to the plaintiffs that they would not convey additional land to the corporation.

Plaintiffs also claimed that the refusal to convey an additional ten-acre tract by Blanche Hayes and Joseph Hayes, who were directors and officers of the corporation, was not made in good faith and was not an exercise of an honest and valid business judgment. Plaintiffs further alleged that the activities of the Hayes were an attempt to seize and divert a business opportunity to themselves, and that their actions were in direct conflict with the corporation’s best interest.

The law of this case is well settled. A complaint is not subject to dismissal upon the ground that it fails to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974). Defendants seek to sustain the dismissal, arguing that the plaintiffs knew from the beginning that they were in no position to compel the sale of the real estate as they “contracted themselves into a 50/50 deadlock by their own express agreement.” The defendants also claim that no “demand” was made as called for by the sales agreement, and that no legal justification can excuse the failure to make a demand. Both arguments fall short of the test which must be met in order to sustain a motion to dismiss.

The plaintiffs’ second amended complaint alleged that the defendants’ refusal amounted to a breach of their fiduciary duty to the corporation. We hold that the plaintiffs should have the opportunity, if they can, to prove their allegations that the defendants breached a fiduciary duty owed to the corporation. See Cox & Perry, Inc. v. Perry, 334 So.2d 867 (Ala.1976). We hold as we do because we cannot say with certainty that the plaintiffs would not be entitled to relief under any set of facts which could be proven in support of their allegations.

Plaintiffs counter defendants’ argument that no demand was made as called for by the agreement by saying that a demand would have been futile. Plaintiffs’ second amended complaint alleges that a demand would have been futile. See, e. g., Rezner v. Fairhope Single Tax Corporation, 292 Ala. 456, 296 So.2d 166 (1974). Again, we cannot say that the plaintiffs will not be able to prove that a demand would have been futile.

Naturally, this opinion should not be construed as any expression on the merits of the plaintiffs’ claim, but should be construed only as holding that, on a motion to dismiss for failure to state a claim, the trial court erred in dismissing the suit.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge.

text:
    Claudia WALDEN v. Thomas K. WALDEN.
    Civ. 1250.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.
    Rehearing Denied Feb. 15, 1978.

      John Martin Galese, Birmingham, for appellant.
    Hugh A. Locke, Jr., Birmingham, for ap-pellee.
   BRADLEY, Judge.

This appeal is from a final decree of the Circuit Court of Jefferson County, Birmingham Division, denying appellant’s request for a hearing on appellee’s petition for writ of habeas corpus. Appellant also claims that the circuit court erred in refusing to accord her a trial on her counterclaim for damages and modification of a Florida divorce decree.

This matter began when appellee filed a petition for a writ of habeas corpus in the Circuit Court of Jefferson County on August 3, 1976.

Appellee’s petition sought physical custody of his eight year old daughter. In his petition appellee alleged that appellant and he had been divorced in Broward County, Florida in April 1972 and that at that time she (appellant) had been awarded custody of the child in question, Elisa Anne Walden. In July 1975 the same Florida court which had divorced the parties awarded appellee legal custody of Elisa Anne. Almost a year later, in May 1976, an agreement was entered into by the parties and the Florida court whereby appellant was permitted to have Elisa Anne visit with her in Alabama from July 2, 1976 through August 2, 1976. After Elisa Anne went to visit her mother (appellant), appellee was informed that Elisa Anne was about to be taken to Tennessee and that she would not be returned to him as required by the agreement. Appel-lee then filed a petition for habeas corpus in the Circuit Court of Jefferson County on August 3,1976. The circuit court, pursuant to that petition, ordered appellant to surrender the child to appellee and for appellee to return the child to the jurisdiction of the Florida court.

On August 4, 1976 appellant filed a motion to strike or dismiss the petition. She also filed an answer to the petition and a counterclaim containing two counts. Count One sought damages for malicious abuse of process. This count was based on appellant’s allegation that appellee had sought the writ of habeas corpus without probable cause and that appellee’s action falsely accused her of the wrongful detention of Elisa Anne, causing her great embarrassment and unnecessary expense. Count Two of appellant’s counterclaim sought to have the Florida decree awarding custody of Elisa Anne to appellee modified by returning custody of Elisa Anne to appellant.

Appellee then filed a motion asking the court to strike the counterclaim. The primary basis of this motion was (1) that ap-pellee was a resident of Florida and (2) that the counterclaim violated the agreement previously entered into by the parties not to invoke the jurisdiction of another court for the purpose of deciding the custody of the child.

The circuit court denied this motion and appellant’s motion to strike or dismiss the petition for writ of habeas corpus.

Next, appellant filed a motion seeking to have Elisa Anne examined physically and psychologically by doctors in Birmingham. She also filed a motion to compel appellee to attend a deposition hearing in Birmingham. The motion to have the child examined was denied but appellee did appear at the deposition hearing. However, upon ap-pellee’s refusal to go forward with the examination until counsel for appellant agreed to include the standard stipulations relating to objections, the hearing was terminated.

Appellant subsequently asked for a default judgment on her counterclaim. And after a hearing on this matter, the circuit court ordered a default judgment to be entered against appellee if he failed to file an answer to appellant’s counterclaim within thirty days. The court also issued the following orders: (1) appellee was to submit to a deposition hearing; (2) appellee was to give sufficient money to appellant’s attorney to cover the cost of transportation and three nights’ lodging in order that appellant could go to Fort Lauderdale, Florida to visit Elisa Anne, and (3) appellee was to have Elisa Anne in court on May 2,1977 for an in camera session with the judge.

On March 11, 1977 appellant filed a petition asking that the rule nisi issue to appel-lee directing him to show cause as to why he should not be held in contempt for his failure to deposit $200 with appellant’s attorney and for his failure to attend the deposition hearing. In answer to the petition for rule nisi, appellee averred that he had attended the deposition hearing but refused to be sworn because the attorney for appellant would not agree to the inclusion in the record of the usual stipulations relating to objections. ,He also claimed that he had sent a check for $200 to appellant’s counsel.

On May 2,1977, the date the rule nisi was heard, appellee failed to produce Elisa Anne. The court found appellee in contempt for failure to have the child in court and for failing to deposit the money with appellant’s counsel as he had previously been ordered to do. The court then remanded him to the custody of the sheriff of Jefferson County, Alabama.

However, nine days later the circuit court ordered appellee to be released from the custody of the sheriff. The court’s order stated that the money appellee was required to pay had been paid, and that appel-lee’s refusal to produce the child in the Alabama court was authorized by the directives of the Florida court.

On July 26, 1977, after being informed that appellant did not receive a hearing on appellee’s petition for writ of habeas corpus and her counterclaim asking for damages and modification of the Florida divorce decree, the circuit court stated that it would conduct no more hearings on any issue remaining before the court. The court then denied appellant’s request for a hearing on the petition for habeas corpus and the counterclaim.

Appellant argues that she has been denied due process of law because she was not permitted to appear at a hearing on the petition for writ of habeas corpus and have her opposition noted. Furthermore, she urges that the court’s refusal to give her a hearing on her counterclaim is a deprivation of due process of law.

Appellee contends that the trial court acted properly in refusing to grant a hearing on appellee’s petition for habeas corpus. Likewise, appellee asserts that appellant was not entitled to a hearing or trial on the merits of her counterclaim. The basis of appellee’s contention in regard to these matters is the doctrine of “forum non con-veniens.” Appellee urges that the trial court recognized that a hearing in Alabama on the petition for habeas corpus would be futile and inconvenient in view of the fact that a Florida court had retained jurisdiction over any subsequent modification of the award of custody. Appellee further argues that appellant’s counterclaim for abuse of process was merely a device promulgated to deceive the trial court into taking jurisdiction over the custody matter.

Simply stated, the doctrine of “forum non conveniens” means that even though adequate grounds for the exercise of jurisdiction exist, a court may in its discretion refuse to exercise its jurisdiction — i. e., it may stay or dismiss an action — if it determines that the forum in which the action is brought is an unfair or seriously inconvenient place for trial as to any party and a more convenient place is available. Restatement (Second) of Conflict of Laws, § 84 (1971). And in deciding whether the local forum is an “unfair” or “seriously inconvenient” place for trial, the trial court usually weighs the following factors: (1) plaintiff’s choice or preference of forum; (2) the residence of the parties; (3) the residence of witnesses and availability of process for compelling their appearance at trial; (4) the ease of access to sources of proof and the costs involved in obtaining such proof; (5) the costs of bringing witnesses and parties to the local forum; (6) plaintiff’s motives in instigating suit in the local forum, i. e. for purposes of forum shopping or harassing the defendant; (7) the availability of an alternative forum; (8) the likelihood of the local forum’s judgment being enforceable; and (9) the interest of the forum state in terms of avoiding the cost and time involved in litigating the claim. See Restatement (Second) of Conflict of Laws, § 84 and comments thereto (1971). Thus, the necessity of examining these factors in order to determine the applicability of the doctrine of “forum non conveniens” indicates that a hearing by the trial court was warranted so that the court could reach a decision on whether to stay or dismiss appellee’s petition for habeas corpus on the basis of “forum non conveniens.” See Wilburn v. Wilburn, 192 A.2d 797, 9 A.L.R.3d 538 (D.C.App.1963).

Moreover, Alabama is one of a number of jurisdictions which recognizes that a petition for habeas corpus may be used to determine the right of a party to have custody of a child. Chisolm v. Crook, 272 Ala. 192, 130 So.2d 191 (1961); Berry v. Berry, 219 Ala. 403, 122 So. 615 (1929). And since the issue of custody involves equitable principles, the scope of the trial court’s inquiry in a hearing on a petition for habeas corpus is very broad. In fact, the legal rights of the parents are subordinate to the welfare of the child and the trial court has authority in acting on the petition to determine not only whether a parent’s custody of the child is wrongful but also whether the best interests of the child would be served by leaving it with the defendant-parent. Berry v. Berry, supra.

In the instant case appellee contends that the Florida court had assumed jurisdiction over the child, and that the Alabama court in the habeas corpus proceeding only had the power to determine whether the mother’s (appellant’s) custody of the child was wrongful, and if so, to order that the child be restored to the father so that he could return with the child to the jurisdiction of the Florida court. However, our supreme court rejected a contention of this nature in Berry v. Berry. In Berry the court held that the habeas corpus proceeding had been treated as one in equity, and since the appellant-father had invoked the jurisdiction of the court by filing his petition, he was not in a position to question the trial court’s jurisdiction to proceed according to equitable principles which included the right of that court to determine that the best interests of the child would be served by leaving the child with its mother.

Thus, it is clear that the trial court could have exercised jurisdiction in the ha-beas corpus proceeding to decide if the child should remain with her mother or if the little girl should be returned to her father. Accordingly, appellee’s petition for habeas corpus involved the personal right of the appellant to the custody of the child and as the mother of the child she was entitled to due process in order to protect this right. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). Fundamental to the protection of her right to due process was her right to a fair hearing on the custody matter. Stanley v. Illinois, supra. And neither the existence of a prior decree of custody in another state nor the doctrine of “forum non con-veniens” was sufficient to deprive the appellant of a hearing on the petition for habeas corpus which appellee had initiated. See May v. Anderson, supra.

Furthermore, even if the trial court could have validly invoked the doctrine of “forum non conveniens” without providing appellant a hearing on whether the doctrine was applicable or her right to present a defense to appellee’s petition for habeas corpus, the court acted improperly in its failure to allow appellant a hearing on her counterclaim against appellee for abuse of process. The trial court had both personal and subject matter jurisdiction over appellant’s tort action and, consequently, the court should have permitted appellant to be heard on this matter if for no other reason than to determine the sufficiency of her cause of action on the counterclaim.

The trial court’s action in denying appellant a hearing on the various legal and factual matters involved in this case deprived appellant of her right to due process. Therefore, we reverse.

REVERSED AND REMANDED.

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

      . Appellee subsequently filed an answer within the thirty day period. His answer challenged the court’s jurisdiction over both the parties and the subject matter in question.

      . Our discussion of the doctrine of “forum non conveniens” should not be construed as actual or tacit recognition that the doctrine was applicable or valid in this instance.


author: WRIGHT, Presiding Judge.

text:
    Robert E. WHITEHEAD v. BARANCO COLOR LABS, INC., N. Barry Weinstein, and Katie P. Weinstein.
    Civ. 1327.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1978.
    Rehearing Denied Feb. 15, 1978.

      Robert E. Whitehead, pro se.
    Lawrence B. Voit, Irving Silver, Mobile, for appellees.
   WRIGHT, Presiding Judge.

Plaintiff appeals pro se from denial of a motion for summary judgment, denial of a motion for writ of habeas corpus ad testifi-candum and from dismissal of his suit for want of prosecution.

The Supreme Court of Alabama in a companion case, Robert E. Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977), dismissed the appeal. The decision in that case is dispositive of the attempt here to appeal from the denial of summary judgment and writ of habeas corpus ad testificandum. It is sufficient to say that those rulings are not appealable orders.

The judgment of dismissal for want of prosecution remains for consideration.

Plaintiff Whitehead brought suit against defendants upon a note in the Circuit Court of Mobile County on January 16,1976. Defendants answered and counterclaimed. On August 30, 1976, plaintiff notified the clerk of the court by letter that he had dismissed his counsel in some 14 lawsuits which he had filed or which were filed against him, that he would proceed in all cases pro se, and that he was a prisoner in the federal penitentiary in Atlanta, Georgia. He subsequently filed various motions and was in turn served with motions. One of plaintiff’s motions was for writ of habeas corpus ad testificandum directing that plaintiff be brought to court from the penitentiary for all pre-trial hearings and for trial. That motion was duly denied.

Trial of the case was set for November 17, 1976. On that date, judgment was entered dismissing the case with prejudice for want qf prosecution. Notice of pro se appeal was filed without post trial motion on December 13,1977. Appeal was granted in forma pauperis.

Dismissal of an action for want of prosecution is allowed by Rule 41(b), ARCP. This rule recognizes the inherent power of a court to manage its affairs so as to achieve the orderly and expeditious disposition of cases. Link v. Wabash R. R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). As such dismissal is generally considered on appeal as an act of discretion by the trial court, such act will be reversed only for an abuse of discretion. Provenza v. H & W Wrecking Co., 424 F.2d 629 (5th Cir. 1970).

There are a number of cases that deal with the general fact pattern of the dismissal for want of prosecution of an action brought pro se by one constrained by incarceration. 20 A.L.R.Fed. 488. In many of those cases where there were found to be abuses of discretion, there has been the factor of contribution to the default by some action of the court or the defendant. There are no such factors apparent in this record.

The record does not indicate any absence of notice of any proceeding. From aught appearing, plaintiff had notice of the regular setting of the case for trial. His efforts appear to have been directed toward compelling the court to bring him from a federal penitentiary to a state court for every hearing on every motion and for trial. He made no effort to secure a continuance nor take and preserve his testimony by deposition. From aught that appears from the record, plaintiff wilfully dismissed his counsel and appeared pro se by choice, not by necessity.

In view of the absence of any fact, other than incarceration, tending to excuse want of prosecution by the plaintiff, we are unable to determine an abuse of discretion by the trial court. The judgment of dismissal is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    STATE of Alabama v. DEATON, INC., a corporation.
    Civ. 1230.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1978.
    William J. Baxley, Atty. Gen., State of Ala., Herbert I. Burson, Jr., Counsel, Dept, of Revenue and Asst. Atty. Gen., State of Ala., Ron J. Bowden, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., State of Ala., Watts E. Davis, City Atty., John S. Foster, Birmingham, for appellant.
    Dewayne N. Morris, Frank Bainbridge, Birmingham, for appellee.
   BRADLEY, Judge.

This case arose from an escape tax assessment levied by the director of revenue of Jefferson County against a number of trucks owned by Deaton, Inc. Deaton, Inc. appealed the applicability of the escape tax assessments to the Circuit Court of Jefferson County.

Although Deaton initiated its appeal to the circuit court in 1969, the case was continued while the parties and the circuit court awaited the outcome of a companion case involving substantially the same issues as those involved in Deaton’s appeal. The companion case, State Department of Revenue v. Alabama Leasing Company, Ala., 336 So.2d 1353 (1976), was decided in July of 1976 and the Deaton litigation then proceeded. On August 25, 1976 Deaton filed a motion for summary judgment. The State filed two responses to Deaton’s motion and the State’s second response to the motion for summary judgment urged that the motion be denied for two reasons: (1) Title 51, section 704, Code of Alabama 1940 (Recomp. 1958) (currently found in Title 40, chapter 12, section 253, Code of Alabama 1975), which had been construed by the Alabama Supreme Court in Alabama Leasing Company to allow a corporate taxpayer the privilege of paying ad valorem taxes on its vehicles in any county provided such vehicles had substantial contact with the county of payment, violated Article XI, Section 217 of the Constitution of Alabama 1901; and (2) the term “substantial contact” used by the supreme court in Alabama Leasing Company was so vague and indefinite that section 704 was rendered unenforceable by the application of such a standard to it. The circuit court rendered a summary judgment in favor of Deaton on January 10, 1977 and from that judgment the State appeals.

In addition to the two issues raised in its response to Deaton’s motion for summary judgment in the proceeding below, the State of Alabama also asserts on appeal that the circuit court erred in granting Dea-ton’s motion for summary judgment.

The first issue for our consideration is the State’s contention that the supreme court’s interpretation of section 704 in Alabama Leasing Company violates the requirement of Section 217 of the Alabama Constitution mandating that the property of private corporations and individuals be taxed at the same rate. In support of this argument, the State maintains that the Alabama Leasing Company decision permits a corporation to assess its motor vehicles for taxation in any county with which those vehicles have substantial contact while the individual owner of a motor vehicle must assess his vehicle for taxes in the county of his residence. And on this basis, the State urges that this court hold section 704 (as construed in Alabama Leasing Company) unconstitutional and in violation of Article XI, Section 217 of the Constitution of Alabama 1901 which provides:

“The property of private corporations, associations, and individuals shall forever be taxed at the same rate.”

The appellate courts of this state are authorized by our constitution to interpret and construe Alabama law. And when the meaning of a tax statute is unclear, it is the duty of this court and the supreme court to resolve the ambiguity of language or uncertainty of meaning in favor of the taxpayer and against the taxing authority. Connrex Corporation v. Department of Revenue, 51 Ala.App. 420, 286 So.2d 296 (1973). Moreover, the court of civil appeals is without authority to overrule the decisions of the supreme court. Jones v. City of Huntsville, 288 Ala. 242, 259 So.2d 288 (1972).

The Supreme Court of Alabama held in Alabama Leasing Company that section 704 accorded a corporate taxpayer the privilege of paying ad valorem taxes on its vehicles in any county with which the vehicles have substantial contact and we are compelled to follow that decision in the present case.

We would further note that so far as we can determine, the constitutionality of section 704 (when considered in conjunction with Section 217 of the Alabama Constitution) was not presented to the supreme court for resolution in the Alabama Leasing Company case. Nonetheless, the constitutional argument raised by the State on its appeal to this court does not warrant a deviation from the supreme court’s holding in Alabama Leasing Company. We find no contradiction between the conclusion reached in Alabama Leasing Company and the provision in our constitution requiring that corporations and individuals be taxed •at the same rate.

The constitutional section at issue in this case, Section 217, is merely a provision mandating that tax laws operate alike on all persons similarly situated or circumstanced. The language “taxed at the same rate” means uniformity in taxation. Uniformity of taxation requires that the tax have the same force and effect in every place where the subject of it is found. For example, a corporation that does business in a county to such an extent that the corporation can establish its right to rely on the “substantial contact” rule in the purchase of license tags for its trucks (and the payment of ad valorem taxes thereon) will pay the same rate of taxation in the county of “substantial contact” as does the individual resident of that county who buys his motor vehicle license there. Both the corporate and individual taxpayer pay the same rate of taxation and the tax has the same force and effect on both. Consequently, if the ad valorem tax rates which are established by the various counties treat the individual taxpayers who reside in the county in the same manner or on an equal basis as the corporate taxpayers having “substantial contact” with the county, Section 217 of the Alabama Constitution requiring that corporations and individuals be taxed at the same rate is complied with. We find no unconstitutional application of section 704 in the instant case.

The second issue presented for our consideration on this appeal concerns the State’s argument that the term “substantial contact” used by the supreme court in Alabama Leasing Company is so vague and indefinite that the State is incapable of discerning what is meant by the term in seeking to enforce escape tax assessments in instances where the requirements of section 704 are ignored. Consequently, the State asserts that the supreme court’s use of such language has in effect nullified the purpose of section 704 (which was to prevent motor vehicles from escaping taxation).

However, an attempt by this court to interpret the meaning of the “substantial contact” test adhered to by the supreme court in the Alabama Leasing Company case would constitute an unnecessary and undesirable interference with the authority of the supreme court to delineate the scope and nature of its own judicially created test. Moreover, should we in fact agree with the State that the term “substantial contact” is so vague and indefinite that section 704 is incapable of being enforced, we would in effect overrule the supreme court’s decision in Alabama Leasing Company. We have no such authority. Jones v. City of Huntsville, supra. Therefore we pretermit any consideration of this issue.

The final issue presented for review is based on the State’s claim that the trial court erred in granting Deaton’s motion for a summary judgment. Specifically, the State contends the court’s action was not in accordance with Rule 56, ARCP, requiring that a motion for summary judgment be denied if there is a genuine issue as to any material fact.

The facts with respect to this issue are as follows. The escape assessments levied by the State on Deaton, Inc. were based on the fact that Deaton maintained its business office and freight depot in Jefferson County yet purchased its tags and paid the ad valorem tax on its vehicles in eight other counties of Alabama. However, relying on Alabama Leasing Company, Deaton took the position that it was correct in purchasing its tags and paying ad valorem taxes in counties other than Jefferson County since Deaton freight trucks had “substantial contact” with those other counties. Accordingly, Deaton argued that it had not escaped taxation on its trucks and thus it was not liable for the escape tax assessments levied by the State. And upon appeal of the assessments to the circuit court Deaton moved for a summary judgment on the basis of the aforementioned contention.

In support of its motion for summary judgment Deaton presented the affidavit of C. N. Knox, vice president of Deaton, Inc. Knox’s sworn affidavit stated: (1) that during the tax years at issue Deaton purchased its tags and paid the ad valorem taxes in various counties which surrounded Jefferson County and through which its vehicles traveled; and (2) that all of Deaton’s vehicles, except the local delivery trucks, had substantial contact with the counties where Deaton paid its ad valorem taxes and purchased its license tags during the years for which the State sought to levy its escape tax. Knox also stated that the vehicles in question picked up and delivered freight in each county where Deaton had purchased license tags and that Deaton trucks frequently traveled through the counties in question. The State made no showing of evidence which would contradict the affidavit by Knox. Instead, the State contended that since Knox did not specify, describe or in any other manner identify the particular trucks which had contact with the eight counties outside Jefferson County, the circuit court should conclude that the Deaton trucks which traveled to and from these eight counties were not the same trucks which were named (and specified) in the State’s tax assessment.

Deaton’s motion for summary judgment was subsequently continued by the circuit court and during the interval between the date on which the motion was filed and the date set for a ruling on the matter, the State deposed two additional officers of Deaton, C. B. McElroy and E. H. Moore. The depositions of these two men disclose that they were in agreement with Knox’s affidavit stating that Deaton trucks made substantial contacts with eight counties other than Jefferson County. Moreover, these two employees confirmed that Deaton’s trucks regularly traveled through the counties in question and that fuel was often purchased for the trucks in those counties; furthermore, McElroy and Moore reiterated that Deaton trucks picked up and delivered freight in the previously mentioned counties. It was also stipulated at the depositions that Knox did not have any more definite information regarding the contacts of the Deaton vehicles with the counties of their respective registrations during the tax years in question and that when the State’s action had originally begun, Deaton had in its custody various business records relating to freight shipments, gasoline purchases and truck dispatches which had subsequently been destroyed in the ordinary course of business.

Despite the presentation of evidence by Deaton in behalf of its motion for summary judgment, the State did not introduce specific facts which tended to contradict the factual showing by Deaton. Nor did the State question the destruction of the records and its effect on the State’s efforts to prove that Deaton had escaped paying taxes in Jefferson County. As a consequence the State failed to demonstrate by its own affidavits or otherwise that there was a genuine issue of fact for trial which would preclude the granting of a summary judgment. Instead, the State responded to Dea-ton’s motion by filing a memorandum of law and extensive interrogatories seeking to obtain information from Deaton as to each of the one hundred forty-three trucks against which the escape assessments were made. Moreover, the State did not request that a ruling on the motion for a summary judgment be withheld until answers to the interrogatories were completed; indeed, the State asked the circuit court to rule on the motion which Deaton had made. And acting pursuant to this request, the court rendered the following order granting Deaton’s motion for summary judgment:

“After having given due and careful consideration to all of the evidence presented in support of and in opposition to the motion for summary judgment, the Court is of the opinion that there is no genuine dispute as to any material fact or issue in the case. The Court is of the opinion that the facts presented in support of the motion are much stronger for the defendant, Deaton, Inc., than were the facts considered by this Court and affirmed by the Supreme [Court] in the case of The State of Alabama, Department of Revenue of Jefferson County, Alabama vs Alabama Leasing Co., a corp.

We do not believe the circuit court erred in granting the motion for summary judgment on the basis that there was no genuine dispute as to any material issue in the case.

In situations where a defendant seeks a summary judgment a factual showing by the defendant-moving party is generally required before a summary judgment can be granted. Such a factual showing may be supported by affidavits, depositions, answers to interrogatories or admissions on file. The information contained in such documents should be sufficient to demonstrate to the court that the case is one in which a searching judicial evaluation of the sufficiency of the plaintiff-non-moving party’s evidence is necessary before the case is permitted to go to trial. And if the plaintiff-non-moving party makes no evidentiary or factual showing in opposition to the defendant’s motion, the trial court may enter a summary judgment in favor of the defendant-moving party on the grounds that an adverse party “may not rest upon the mere allegations or denials of pleading,” but must instead, by affidavits or otherwise, “set forth specific facts showing that there is a genuine issue for trial.” Rule 56, ARCP.

In the instant case there was no evidentiary or factual showing by the State which would demonstrate a genuine issue of fact. The material issue of fact in view of Alabama Leasing Company was (1) whether the vehicles owned by Deaton, Inc. had “substantial contact” with the counties in which Deaton purchased the license tags for and paid the ad valorem taxes on its trucks and (2) whether the vehicles for which tags were purchased and taxes paid were the same vehicles as those which the State originally assessed as having escaped taxation. The affidavits and depositions presented by Deaton indicated that its vehicles had had “substantial contact” with eight counties outside of Jefferson County during the tax years in question. The State offered nothing to contradict this fact nor did it demonstrate that the material issue of “substantial contact” was in dispute. And in view of the fact that no records or evidence existed which could subsequently be presented at a trial in support of the State’s contention that the Deaton trucks which traveled to and from the counties in which tags were purchased were not the same trucks which were named and specified in the State’s tax assessment, we cannot say that the circuit court acted improperly in granting a motion for summary judgment. Consequently, the circuit court’s order granting summary judgment is affirmed.

AFFIRMED.

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


text:
    John ELSEVIER v. Laurie ELSEVIER.
    Civ. 1270.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1978.

      James H. Lackey, Mobile, for appellant.
    Edward B. McDermott, of McDermott, Deas & Boone, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by a husband from the property division and alimony provisions of a divorce decree. The issue is whether the award to the wife was excessive and an abuse of discretion. We affirm.

The parties are in their late fifties and have been married some eight years. The husband has been retired from operating his own business since before the marriage. He owns mortgages with a principal value of more than $200,000. They carry eight percent interest and were purchased at a 20% discount. He has savings certificates in the amount of $40,000. His taxable income amounts to some $24,000 per year. He has a Y.A. pension of $65 per month. He reinvests the principal paid on the mortgages. He and his wife jointly own a residence in Mobile valued at $20,000 with a $7,000 mortgage against it and a residence at Dauphin Island valued at $32,000 with no encumbrance. He owns a boat and two automobiles and has a country club membership.

The wife has no estate nor source of income. She has an adult daughter residing with them. Her health is not good and she has no skill.

After oral hearing, the court awarded to the wife the following: title to the residence in Mobile subject to the mortgage, an automobile, the country club membership, $27,500 alimony in gross and $550 per month periodic alimony with household furniture. The husband retained over $200,000 in mortgages, received full title to the Dauphin Island property, the boat, one automobile, income of $24,000 per year, his pension and some $13,000 in savings.

After payment of the award to the wife, including $3,500 in attorney fees, the husband retains assets of a net value substantially in excess of a quarter million dollars. The wife receives assets of an approximate net value of $41,500 plus a $550 monthly income.

The award of alimony and the division of property upon a divorce are matters within the discretion of the court with each case being considered on its own facts. Segars v. Segars, 334 So.2d 684 (Ala.Civ.App.1976). The discretion is exercised in light of various factors among which may be the earning ability of the parties, future prospects, age, health, duration of the marriage, accustomed standard of living, source, value and type of property and conduct of the parties in relation to the marriage. Hendrix v. Hendrix, 56 Ala.App. 178, 320 So.2d 684 cert. denied, 294 Ala. 758, 320 So.2d 687 (1975). An award entered after oral hearing of the evidence is accompanied by a presumption of correctness when considered on appeal and will be set aside only for a gross abuse of discretion. Metcalf v. Metcalf, 340 So.2d 38 (Ala.Civ.App.1976). We are unable to say the award in this case constitutes such an abuse.

The contention of the husband that the alimony statutes are violative of the equal protection clause of the U. S. Constitution has been previously answered to the contrary by this court. Orr v. Orr, 351 So.2d 904 (Ala.Civ.App.), cert. denied, 351 So.2d 906 (Ala.1977).

The wife has petitioned this court for an award of a reasonable attorney fee for defending this appeal. She is hereby granted $500.00 for the use of her attorney on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    U-HAUL COMPANY OF ALABAMA, a corporation v. Floyd L. TURNER, Individually and doing business as Auto Rite and as Auto-Rite Service Center.
    Civ. 1422.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1978.

      Carl E. Chamblee, Birmingham, for appellant.
    Gordon Davis, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of a motion for new trial. We reverse.

U-Haul of Alabama brought suit against Turner on open account and for an accounting under a contract with judgment thereon. Turner filed counterclaim claiming $15,200 on open account. Defendant demanded trial by jury. After trial, jury verdict was in favor of plaintiff U-Haul in the amount of $2,518.93. Judgment was entered in accord. No verdict was returned on defendant’s counterclaim. Defendant filed motion for new trial which was granted without statement of a ground and the case was returned to the trial docket. Plaintiff appeals.

At trial, plaintiff proceeded to claim that defendant was indebted to it by contract entered into in 1965 and amended at various times until terminated by plaintiff in June 1975. Defendant contended that plaintiff was indebted to him for some fifteen thousand dollars under the same contract.

Plaintiff is an Alabama corporation engaged in executing and servicing dealer contracts for U-Haul rental equipment. It is a wholly-owned subsidiary of U-Haul International of Phoenix, Arizona. The accounting services for U-Haul of Alabama were performed under contract by Arcoa, Inc. of Phoenix. All weekly reports and payment of rentals filed by each dealer were sent to Arcoa. Its computer performed all record keeping and directed payment of commissions to the dealer each month.

The claim of plaintiff arose from failure of defendant to file five weekly reports and submit payments as required by the contract. The sum stated to be due by plaintiff was admitted correct by defendant. Defendant claimed failure of payment to him for repairs made on equipment.

The only question presented by the appeal is whether the trial judge erred in granting defendant’s motion for new trial.

Granting or denying a new trial motion rests largely in the discretion of the trial judge. The judgment of the trial judge is presumed correct on appeal. Hubbard Bros. Const. Co. v. C. F. Halstead Cont. Inc., 294 Ala. 688, 321 So.2d 169 (1975); Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973).

If a new trial is granted without specifying the ground, the ruling will be sustained on appeal if any good ground is presented by the motion. Johnson v. Hodge, supra.

When the new trial is granted without specifying the ground therefor, and one of the grounds of the motion is that the verdict is contrary to the evidence, it is presumed on appeal that the motion was granted upon that ground. Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972); 2A Ala.Digest, “Appeal & Error”, § 933(1), (4).

When a new trial is granted upon the ground that the verdict is contrary to the preponderance of the evidence, an appellate court will not reverse unless it appears that the great weight of the evidence plainly supports the verdict. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891).

As we have already stated, the verdict was for the plaintiff in the sum of $2,518.93. Such sum is less than the amount admittedly owed plaintiff by defendant. There is no conflict in the evidence as to the amount due plaintiff under the contract. Therefore, a charge by the defendant that the verdict rendered for plaintiff was contrary to the evidence has no foundation in the evidence. The evidence supports the verdict for plaintiff without dispute. A new trial granted on the ground that the verdict was contrary to the evidence would be erroneous. We find the presumption that a new trial was granted on that ground must fall.

We now look to the other grounds of the motion for new trial to determine if any of them support the ordering of a new trial.

Defendant submits in brief that the trial court, though failing to specify grounds, in fact granted a new trial on the ground that plaintiff was not the real party in interest and had no right to judgment against defendant. Our examination of the record indicates that defendant is correct. We therefore accept defendant’s assessment and forego consideration of any of the other grounds of the motion.

The trial court was in error in granting a new trial on the ground that plaintiff was not the real party in interest. Defendant places his reliance upon testimony of the president of plaintiff upon cross-examination. That testimony, was in essence, that U-Haul of Alabama was a service corporation owned wholly by U-Haul International and that all monies due under the contract with defendant ultimately inured to the benefit of the parent corporation. Such testimony, if true, is not necessarily determinative of the “real party in interest” within the meaning of Rule 17(a), ARCP. The effect of Rule 17(a) is that the action must be brought by the person who is entitled to enforce the right claimed therein. Who has such right is a matter of substantive law of the particular jurisdiction. 6 Wright & Miller, Federal Practice and Procedure, § 1543. The purpose of the rule is to protect the defendant from subsequent action by the party actually entitled to recover and to ensure that a judgment will have res judicata effect.

There can be no argument but that a party to a contract, in the absence of assignment, has the substantive right to enforce that contract. Gore v. Gore, 250 Ala. 417, 34 So.2d 580 (1948). It could have little bearing that someone else may ultimately benefit from a recovery. In fact, the second sentence of Rule 17(a) provides that one in whose name a contract has been made for the benefit of another may sue in his own name without joining the party for whose benefit the action is brought.

The relationship of U-Haul of Alabama and of U-Haul International appears to be nothing more than that of parent and subsidiary corporations. It does not appear that the contract here is one for a third party benefit. However, even if it were, the joinder or substitution of U-Haul International is not required.

It is the opinion of the court that the trial court erroneously granted a new trial and such judgment must be reversed and the verdict of the jury with judgment thereon reinstated.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.