author: DOMENGEAUX, Judge. PER CURIAM.

text:
    Howard H. HARGRODER, Plaintiff-Appellee-Appellant, v. CITY OF EUNICE et al., Defendants-Appellants.
    No. 5620.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearings Denied Jan. 26, 1977.
    Writ Refused April 6, 1977.

      Olivier & Brinkhaus by Armand J. Brink-haus, Sunset, J. Winston Ardoin, Eunice, for defendants-appellants.
    Guillory, McGee & Mayeux by A. Frank McGee, Eunice, for plaintiff-appellee.
    Tate & McManus by Kearny Tate, Eunice, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Howard H. Hargroder, brought this action seeking an injunction to enforce certain building restrictions against defendants, the City of Eunice and Plan Corporation. From a judgment granting injunctive relief, defendant, Plan Corporation, has appealed. The City of Eunice has not appealed. Plaintiff has answered the appeal requesting that certain zoning ordinances of the City of Eunice be declared null and void. We affirm the judgment of the trial court.

Some time during the mid-1950s one Lawrence C. Amy subdivided a large tract of land which he owned in Eunice, St. Landry Parish, Louisiana, designating same as the “Highland Heights Addition”. Highland Heights Addition was divided into numerous blocks designated and identified by use of the letters A through P. On May 28, 1956, Lawrence C. Amy executed and duly recorded an act whereby he placed certain building restrictions on Blocks A, C, and E, of the subdivision. Restriction I of the act provides as follows:

“I. The use of the lots herein sold is restricted exclusively to residential purposes.”

On November 1, 1956, Mr. Amy executed and recorded an act entitled “Amendment to Residential Area Covenants” whereby he extended the building restrictions to Blocks B, D, F, G, and H, as well as Blocks A, C, and E, which were covered by the previous restrictions. Restrictions C-l of the amendments provides:

“LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes . . . ”

Both the original restrictions and the amendments contain numerous additional provisions relating to dwelling cost and size, building location, temporary structures, etc.

On June 29, 1971, the City of Eunice rezoned the north part of Block A of Highland Heights Subdivision from R-l (residential) to B-l (business). In October of 1972 Plan Corporation purchased all of said Block A. In 1973 the City of Eunice rezoned the south part of Block A from R-l to B-l. In May of 1974 Plan Corporation began construction of a certain commercial building on the north part of Block A. On June 19, 1974, plaintiff, a resident-landowner in Block C of Highland Heights Subdivision, instituted this action to enjoin said construction and to further declare the city zoning ordinances pertaining to Block A null and void.

The district judge found that the building restrictions superceded the city zoning ordinance and permanently enjoined Plan Corporation from carrying on any action in violation of the restrictions. Plan Corporation has appealed suspensively, and Hargro-der has answered the appeal requesting that the ordinance be declared null and void per se rather than merely unenforceable.

The law in Louisiana concerning building restrictions has been well stated by the Supreme Court in the case of Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1947):

“It is the well established jurisprudence of this state that where restrictions have been inserted in deeds in pursuance of a general plan devised by the ancestor in title to maintain certain building standards and uniform improvements, such as those here under consideration, they are valid and enforceable. Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641, L.R.A.1916B, 1201, Ann.Cas.1916D, 1248; Hill v. Wm. P. Ross, Inc., 166 La. 581, 117 So. 725; Rabouin v. Dutrey, 181 La. 725, 160 So. 393; and Ouachita Home Site & Realty Co. v. Collie, 189 La. 521, 179 So. 841. These are real rights or covenants that run with the land for the benefit of land owners within the area and to prevent the violation of these restrictions injunction proceedings may be resorted to. See Collie and Queensboro cases, supra, and also Edwards v. Wiseman, 198 La. 382, 3 So.2d 661.
Although these stipulations are stricti juris and every doubt should be resolved in favor of the unencumbered use of the property, whenever differences arise as to the extent or limitation of these restrictions, we must look to the intention of the party encumbering the property from the words used in the stipulations in the deed, consideration being given to the entire context of the instrument rather than to a single phrase or clause, for obviously those acquiring the property in the restricted area were motivated and influenced to purchase the same because of these limitations and they are entitled to the presumption that they will be fairly and faithfully complied with.”

See also Bruce v. Simonson Investments, Inc., 251 La. 893, 207 So.2d 360 (1968); Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942); Beyt v. Woodvale Place Apartments, 297 So.2d 448 (La.App. 3rd Cir. 1974), writ refused 300 So.2d 840; A. Yiannopoulous, Civil Law Property Section 104; LSA-C.C. Articles 709, 728.

When enacted, the building restrictions executed by Mr. Amy in the instant litigation were obviously valid on their face. A survey of the plat introduced into evidence gives an indication of the general, logical scheme intended by the original subdivider. The record indicates that the restrictions were recorded, as required, prior to the sale of any lots in Highland Heights Subdivision by Mr. Amy. Thus since said restrictions were valid when enacted, we must now address ourselves to a determination of their current efficacy.

Defendant contends that the zoning ordinances enacted by the city of Eunice altering the designation of the property in question from R-l to B-l override and supercede the building restrictions. With this contention we must disagree. The adoption of zoning ordinances has no effect upon pre-existing, valid building restrictions. See Alfortish v. Wagner, supra; Oak Ridge Builders, Inc. v. Bryant, 252 So.2d 169 (La.App. 3rd Cir. 1971), writ refused 259 La. 945, 253 So.2d 384; Olivier v. Berggren, 136 So.2d 325 (La.App. 4th Cir. 1962).

Defendant also contends that numerous other violations of the building restrictions at issue have occurred and that same have operated as a waiver or abandonment of the general scheme by individuals living within the restricted area. It is true that some violations have occurred within Highland Heights Subdivision. The majority of said violations are in the form of the existence of numerous temporary buildings erected but not attached to main dwellings. Most of these structures are in the nature of small metal buildings typically used for the storage of lawn implements and the like. In addition plaintiff himself built a three-car garage which is clearly in contravention of the restrictions. Furthermore, a number of the homes in Highland Heights Subdivision were built in violation of a certain restriction that all homes be a specified minimum distance apart.

Under our law the rights to enforce building restrictions can be lost or relinquished by acquiescence or failure of landowners to object to continuous or multiple violation of the restrictions. However, generally speaking, toleration of minor violations by landowners does not operate as waiver or abandonment of the entire schedule. See Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960); Edwards v. Wiseman, supra; Hill v. William P. Ross, Inc., 166 La. 581, 117 So. 725 (1928); Fortson v. Lawrence, 254 So.2d 115 (La.App. 3rd Cir. 1971), writ refused 260 La. 280, 255 So.2d 769.

In the recent case of Mouille v. Henry, 321 So.2d 377 (La.App. 3rd Cir. 1975), we set forth the following guidelines:

“To determine whether building restrictions have been waived, there are three areas of consideration. The number of violations, there character, and the adverse reaction of property owners to those violations. The proponent of waiver must establish a preponderance in all three.”

A very clear distinction can be made between the nature of violations previously tolerated by the residents of Highland Heights Subdivision and the type of activity undertaken by the defendant, Plan Corporation. All previous violations were of a minor nature, and none contravened the “Residential Only” provisions. On the other hand, the activities of Plan Corporation are of a purely commercial nature and as such tend to destroy the basic scheme of development intended by the original subdi-vider and enforced via the restrictions. For this reason, we find that the landowners in Highland Heights Subdivision (including plaintiff) have not waived the protections afforded them by the “Residential Only” restriction and that they still retain the right to enforce same.

Defendant further complains that Blocks I, J, K, L, M, N, O, and P, were sold to the St. Landry Parish School Board and that same were used for the building and operation of an elementary school. We note, briefly, that these blocks were never included in the original restrictions nor in the amendments thereto. A study of the plat of the subdivision indicates that the above referred to area consists of approximately one-half of the subdivision and that all of the blocks are in the same area. The property sold to the School Board is a clearly separate and distinct as well as cohesive portion which is self-contained, not infringing upon any other part of the subdivision. We find nothing in the record to indicate that Mr. Amy’s sale of this property evinced any intent upon his part to abandon the general scheme, especially in light of the fact, as above referred to, that said property was never included within the restrictions.

Defendant also argues that injunc-tive relief is an improper remedy in the instant situation. Our state’s jurisprudence historically and consistently holds that actions to enforce building restrictions may be brought via injunction. See Alfortish v. Wagner, supra; Edwards v. Wiseman, supra; Robinson v. Morris, 272 So.2d 444 (La. App. 2nd Cir. 1973); Oak Ridge Builders, Inc. v. Bryant, supra. See also Salerno v. DeLucca, supra.

Defendant further contends that the doctrines of equitable estoppel or laches should operate to bar prosecution of plaintiff’s actions. Defendant’s claim is based upon allegations that plaintiff allowed the former to undertake considerable expense and construction before attempting to enjoin such activity. The record indicates that, except for the original purchase price of the land itself, defendant had expended only a few hundred dollars in construction costs prior to the institution of this suit. This finding is based upon a number of invoices introduced by the defendant at trial. Thus, we find the doctrines of equitable estoppel and laches inapplicable to the factual situation presented herein.

In answering the appeal, plaintiff requests that the judgment of the trial court be amended so as to declare the City of Eunice’s zoning ordinances applicable to Block A of Highland Heights subdivision null and void. The judgment of the trial court simply declared unenforceable any city ordinances enacted subsequent to and in conflict with the valid building restrictions in effect regarding Block A of Highland Heights Subdivision. We find that the judgment of the district court affords adequate protection to plaintiff herein and decline to amend same. LSA-C.C.P. art 2164.

Furthermore, the possibility exists that at some time in the future, pursuant to the provisions of LSA-R.S. 9:5622, the owners of a majority of the square footage of the land contained in Highland Heights Subdivision may vote to lift any or all of the building restrictions in force for their area. When and if such an event occurs, any impediments to the operation of the city zoning ordinance may be removed. In the meantime, we reiterate that plaintiff’s rights are adequately safeguarded by the judgment of the district court.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal shall be assessed equally against plaintiff, Howard H. Hargroder, and defendant, Plan Corporation.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Both parties have applied for a rehearing. Plaintiff-appellee-appellant, Howard H. Hargroder, suggests that the following language, found in the body of the majority opinion, is inapplicable to the facts presented by this litigation:

“Furthermore, the possibility exists that at some time in the future, pursuant to the provisions of LSA-R.S. 9:5622, the owners of a majority of the square footage of the land contained in Highland Heights Subdivision may vote to lift any or all of the building restrictions in force for their area. When and if such an event occurs, any impediments to the operation of the city zoning ordinance may be removed. In the meantime, we reiterate that plaintiff’s rights are adequately safeguarded by the judgment of the district court.”

After reconsideration we are of the opinion that the above quoted language is dictum and as such was improvidentially employed in the majority opinion. Accordingly, same is hereby deleted.

We have considered all other contentions in both applications for rehearing and find no merit therein.

For the reasons assigned the above quoted language is deleted from the original opinion. The applications for rehearing are otherwise denied.

      . Defendant complains that a sale of lots was made by Mr. Amy to Henry DeMay, et ux, on June 6, 1956, prior to the adoption of the amendments (November 1, 1956), and defendant’s counsel has attached a copy of the act of sale to his supplemental appellate brief. While this evidence is not properly in the record, we address ourselves to the issue merely to lay the matter to rest.
      We note that the sale from Amy to DeMay was of lots “11” and “12” of Block “C”. Since Blocks A, C, and E were covered by the original restrictions (enacted May 28, 1956) these lots obviously were not sold “unrestricted” as defendant contends.

      . We are concerned primarily with defendant’s contention that the residents of Highland Heights have waived their rights to enforce the “Residential Only” restriction. We express no opinion relative to the restrictions other than “Residential Only”.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Jerry WYATT et al., Plaintiffs-Appellants, v. VERNON PARISH POLICE JURY et al., Defendants-Appellees.
    No. 5748.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 10, 1977.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused Feb. 25, 1977.
    See also, La.App., 341 So.2d 475.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    William C. Pegues, III, DeRidder, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

Plaintiffs, Jerry Wyatt, Gregory J. White, Wonda S. Miller and Eldridge M. Wood, instituted this action for a declaratory judgment and for injunctive relief against defendants, Vernon Parish Police Jury and Frank E. Howard, Sheriff of Vernon Parish. The petitioners seek a judgment decreeing local option elections held in Wards 2 and 5 of Vernon Parish on July 24, 1976, and two ordinances adopted by the Vernon Parish Police Jury pursuant to those elections, to be null and void. They also pray for judgment enjoining the Sheriff of Vernon Parish, and his agents or employees, from enforcing the above ordinances.

After trial of a rule directing the sheriff to show cause why a preliminary injunction should not be granted, judgment was rendered by the trial judge rejecting plaintiffs’ demands for such an injunction. Plaintiffs appealed.

The substantial issues presented are whether the above local option elections were conducted according to law, and thus whether those elections and the ordinances which were adopted by the Police Jury of Vernon Parish pursuant to them are valid.

Plaintiffs Wyatt and White are residents of Ward 5 of Vernon Parish, and each holds a valid Class “A” beer permit authorizing the sale of alcoholic beverages in his retail business located in that ward. Plaintiffs Miller and Wood are residents of Ward 2 of Vernon Parish, and each holds a valid Class “B” permit authorizing the sale of alcoholic beverages in his or her retail business located in that ward. All of these permits were issued by the State of Louisiana.

Verified petitions containing the signatures of more than twenty-five percent of the qualified electors of Ward 2 and of Ward 5 of Vernon Parish were presented to the Police Jury of that parish, requesting that elections be called in each of those wards to submit to the qualified electors therein the four propositions which are set out in LSA-R.S. 26:583. One of those propositions, designated as proposition number 2, was: “Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted?”

At its regular meeting held on June 7, 1976, the Vernon Parish Police Jury considered those petitions and then adopted two separate resolutions, one of which called a local option election to be held in Ward 2 and the other called such an election to be held in Ward 5 of Vernon Parish, all in accordance with the requests contained in the above petitions. The resolutions provided that the elections were to be held on July 24, 1976, and that in each election there should be submitted to the qualified electors of the ward the following propositions:

(1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight and not more than six percent by volume be permitted in Ward of
Vernon Parish, Louisiana?
(2) Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in Ward ,
Vernon Parish, Louisiana?
(3) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume for consumption on the premises be permitted in Ward , Vernon Parish, Louisiana?
(4) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume by the package only and not for consumption on the premises be permitted in Ward , Vernon Parish, Louisiana?

The elections were held on July 24, 1976, as provided in the above resolutions, with the result that all of the propositions submitted to the electors were defeated in both wards, that is, a majority of the electors voted that the manufacturing or selling of alcoholic beverages would not be permitted in either of those wards.

At its regular meeting held on August 9, 1976, the Vernon Parish Police Jury promulgated the returns of those elections, and it thereupon adopted two ordinances prohibiting the manufacturing or selling of all of the alcoholic beverages described in all four of the proposals which had been submitted to the electors. Ordinance Number 3 prohibited the manufacturing and selling of such beverages in Ward 2, and Ordinance Number 5 prohibited the manufacturing and selling of them in Ward 5. Each ordinance provided that it would become effective on August 15, 1976, and that if any provision of it should be held to be invalid that invalidity would not affect other provisions of the ordinance. Both ordinances were published in the official parish journal, The Leesville Leader, on August 16, 1976.

On August 16, 1976, agents or employees of the Sheriff of Vernon Parish notified plaintiffs that the ordinance would be enforced. Plaintiffs instituted this suit on August 17, 1976.

A rule was issued directing the sheriff to show cause why a preliminary injunction should not issue, and that rule was tried on August 26, 1976. Judgment was rendered by the trial court on that date rejecting plaintiffs’ demands for a preliminary injunction, and the present appeal was taken from that judgment.

Plaintiffs contend primarily that the local option elections held in Wards 2 and 5, the petitions requesting that those elections be called, and the two ordinances adopted by the Vernon Parish Police Jury pursuant to those elections, are all invalid because the proposals listed in the above petitions and submitted in those elections included the “second proposition” which is set out in LSA-R.S. 26:583 and 587. They point out that in Nomey v. State, 315 So.2d 709 (La.1975), our Supreme Court held that Sections 583 and 587 are unconstitutional insofar as they provide that proposition number 2 may be included in a petition for referendum or as an issue to be placed on the ballot in a local option election. They take the position that in view of the holding in Nomey, the elections held in Wards 2 and 5 of Vernon Parish are totally invalid, since there was submitted to the electors in each of those elections a proposition which has been determined to be unconstitutional.

The procedure for calling local option elections in Louisiana is set out in Parts I and II of Chapter 3, Title 26, of the Louisiana Revised Statutes (LSA-R.S. 26:581, et seq.). Section 581.1, as amended by Act 41 of 1974, provides in substance that the procedures set out in Chapter 3 for prohibiting the sale of alcoholic beverages on a parish-wide basis, and for prohibiting the sale of beverages containing three and two-tenths percent alcohol by weight, or less, are available to twelve parishes specified in that section, but that those procedures are not available on a parish-wide basis to any other parish in the state.

Section 582, authorizing the calling of a referendum election upon proper petition of the qualified electors, provides:

“582. Petition for election; parish-wide elections; separate elections; frequency limited
Upon petition of not less than twenty-five percent of the qualified electors residing in any parish, ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein.
In the case of such an election held on other than a parishwide basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. In the case of an election called on a parishwide basis the result shall be binding on the entire parish.”

Section 583 authorizes any qualified elector to sign a petition addressed to the governing authority of the subdivision in which he resides, requesting a local option election. The section sets out substantially the form of the petition which should be used, and it specifies that the four propositions hereinabove listed should be included in each petition, including proposition number 2, reading: “Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted?”

Section 587 provides that when such an election has been ordered, the four propositions hereinabove listed, and no others, shall be plainly printed upon a special ballot to be used for the election, and that “otherwise the election shall be null and void.” That section thus requires that proposition number 2, relating to the sale of beverages containing three and two-tenths percent alcohol by weight, or less, be included on the ballot.

In Nomey, supra, the plaintiffs were holders of valid Class “A” and Class “B” retail liquor permits which authorized them to sell alcoholic beverages in Jackson Parish. The Police Jury of that parish called a parish-wide election in which the four propositions set out in Section 587 were submitted to the electorate. Jackson Parish is one of the twelve parishes in which parish-wide elections were authorized by Section 581.1. The plaintiffs instituted suit attacking the constitutionality of Act 41 of 1974, which enacted Section 581.1 and amended other parts of the local option laws, and in that suit they sought to enjoin the election. The Supreme Court, after reviewing the case on writs, concluded that that part of Act 41 which enacts Section 581.1 is a local or special law affecting elections, and that Section 581.1 thus is unconstitutional since such a law is prohibited by Article 3, Section 12, of the Louisiana Constitution of 1974. That conclusion then led the court to find that other parts of Act 41 were unconstitutional. With reference to some of the other provisions of that act, the Supreme Court said:

(1) Section 582 is unconstitutional insofar as it deals with elections on a parish-wide basis.
(2) Section 583 is unconstitutional in respect to the second proposition to be submitted in the petition for referendum because under Section 581.1 which we strike down herein, its submission would be confined to the twelve specially designated parishes.
(3) Section 587 is unconstitutional insofar as it designates proposition 2 as an issue to be placed on the ballot for election for the same reasons that propositions of Section 583 are invalidated.
(4) We have previously declared that the amendment to Section 588 was repealed by Act 325 of 1974, which has been held unconstitutional. See Tolar v. State, supra.
(5) Section 592 is unconstitutional insofar as it deals with election procedures on a parish-wide basis.

Judgment was rendered in Nomey permanently enjoining the election. We believe, however, that the entire election was enjoined in that case because it was a parish-wide election, which the Supreme Court felt could not be sanctioned, and not because one of the four propositions submitted to the electorate was found to be unconstitutional.

The instant suit does not involve a parish-wide election. It involves two separate local option elections, one of which was called and held in Ward 2, and the other in Ward 5, of Vernon Parish. The Parish of Vernon is not one of the twelve parishes in which parish-wide elections were specially authorized to be held by Section 581.1. That section of the revised statutes which has been found to be unconstitutional thus has no application to this case.

Section 582 authorizes the calling and holding of local option elections “in any parish, ward, or any incorporated municipality.” The Supreme Court held that section to be unconstitutional only “insofar as it deals with elections on a parish-wide basis.” We consider section 582, therefore, to be constitutional and valid insofar as it authorizes the calling and holding of local option elections “on other than a parish-wide basis,” as was done in the instant suit.

Sections 583 and 587 were held to be unconstitutional insofar as those sections directed that the “second proposition” or “proposition 2” be submitted in the petition for referendum or as an issue to be placed on ballot for the elections. We find nothing in Nomey, or in any provision of the Revised Statutes, which indicates that the entire election is null in the event “proposition (2)” is included among the four propositions (set out in Sections 583 and 587) which are submitted to the electorate at an election called and held in a ward of the parish. The Supreme Court stated in Nomey that “those portions of Act 41 which are not special in nature are excluded from our declaration of unconstitutionality.” Section 3 of Act 41 of 1974 provides, in effect, that if any provision of that act is held to be invalid, such invalidity shall not affect other provisions of it.

Our conclusion is that a local option election called and held under LSA-R.S. 26:581, et seq., submitting to the electorate the four propositions set out in Sections 583 and 587, is valid as to propositions (1), (3) and (4), even though it may be invalid as to proposition (2), provided that in all other respects the election was conducted in accordance with law. See also Smith v. Lincoln Parish Police Jury, 327 So.2d 641 (La. App. 2 Cir. 1976); 36 La.Law Rev. 549, 550.

In the instant suit, we think the trial judge correctly concluded that the elections held in Ward 2 and in Ward 5 of Vernon Parish were valid insofar as propositions (1), (3) and (4) were submitted to the qualified electors of those wards, and that the ordinances adopted by the Police Jury pursuant to those elections were valid insofar as they prohibited the sale of the beverages described in propositions (1), (3) and (4).

We turn now to the question of whether the above elections were valid as to proposition (2), and whether the two ordinances adopted by the Vernon Parish Police Jury following those elections are valid insofar as they purport to prohibit the sale in Wards 2 and 5 of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight.

Act 648 of 1974 (now LSA-R.S. 26:586.1) provides a procedure, in addition to that provided in Section 582, for calling an election to submit to the qualified electors of a ward or an incorporated municipality the proposition of whether the sale of beverages containing three and two-tenths percent alcohol by weight, or less, should be permitted in that political subdivision. The act provides, in part, that:

“In addition to the procedure for calling local option elections by petition of twenty-five percent of the qualified electors residing in any ward or incorporated municipality an election may be ordered to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight, shall be conducted and licensed therein. Notwithstanding the provisions of R.S. 26:588, the ballot, in addition to the propositions contained in R.S. 26:587, shall contain the following proposition:
‘Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in . . . ’ ”

Under the provisions of that act, the local option elections therein authorized may be called and held only in wards or in incorporated municipalities. No such election shall be held on a parish-wide basis. The act provides that all provisions of Chapter 3, of Title 26, of the Revised Statutes which are not inconsistent with it shall be applicable to any local option election ordered pursuant thereto. All laws in conflict with the act are repealed.

Section 586.1 became effective on July 31, 1974. The elections involved in the instant suit were called and held long after the effective date of that legislation, and the two ordinances adopted by the Vernon Parish Police Jury pursuant to those elections, which ordinances are under attack here, were passed while LSA-R.S. 26:586.1 was in effect.

Proposition (2) which was submitted to the electorate at the elections held in Wards 2 and 5 of Vernon Parish on July 24, 1976, is the same proposition which is authorized in Section 586.1. That section specifically provides that a proposal, identical to the one which was actually listed on the ballots as Proposition (2), may be included on the ballot “in addition to the propositions contained in R.S. 26:587.” The record indicates that the Vernon Parish Police Jury complied with all of the provisions of Section 586.1 in submitting that proposition to the qualified electors of those wards.

We are aware of the provisions of LSA-R.S. 26:588, and of the attempts made to amend that section by Acts 41 and 325 of 1974. See State v. Wright, 305 So.2d 406 (La.1974); Tolar v. State, 315 So.2d 22 (La.1975); and Nomey v. State, supra. We also have considered the provisions of LSA-R.S. 26:601-616, enacted originally by Act 37 of 1974 and amended by Act 296 of 1975. It is unnecessary for us to consider Section 588, or Sections 601, et seq., however, because we believe the procedure set out in Section 586.1 is applicable here regardless of the provisions of the other cited sections.

Plaintiffs, in their brief and in oral arguments, attack the constitutionality of Section 586.1 on the ground that it “refers back to LSA-R.S. 26:581.1,” and that it thus is “special legislation” and is unconstitutional for the reasons which are assigned in Nomey, supra. We find no merit to that argument. Act 648 of 1974 has state-wide application, and it does not purport to amend, to supplement or to “refer back” to LSA-R.S. 26:581.1. It thus is not a local or special law for the holding and conducting of elections, as those terms are used in Section 12, Article 3, of the Constitution of 1974. The Supreme Court did not consider the question of whether Act 648 was unconstitutional in Nomey. We find no objections to or infirmities in LSA-R.S. 26:586.1 on constitutional grounds.

Plaintiffs contend, alternatively, that “it is unclear what exactly was authorized by LSA-R.S. 26:586.1,” and they argue that for that reason the elections and ordinances being attacked here should be decreed to be null and void. To support that argument they point out that Section 586.1 requires that “this election shall be separately called and held,” and that it also provides, inconsistently they argue, that the ballot shall contain the proposition therein set out “in addition to the propositions contained in R.S. 26:587.” They also suggest that since Section 587 specifies that four propositions be included on the ballot, one of which is identical to that set out in Section 586.1, the latter section appears to require a duplication of proposition (2) on the ballot. We find no merit to this argument. The statute, considered as a whole, makes it clear that the proposition set out in Section 586.1 may be included as proposition (2) in a local option election where the other proposals listed in Section 587 also are submitted. We agree with the trial judge that the Legislature did not intend to require that a separate election be called and held to submit the proposition set out in Section 586.1.

Plaintiffs also argue that the elections involved here should be decreed to be invalid because of the failure of the Vernon Parish Police Jury to comply with the provisions of 42 U.S.C.A. Sec. 1973c. We do not feel that the cited statute is applicable here, since the Police Jury by calling the above elections did not enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force theretofore.

There is no merit to plaintiffs’ final argument that the two ordinances at issue here are invalid because they were not published in the official journal of the parish until August 16, 1976, whereas each ordinance provided that it was to become effective on August 15, 1976. No attempt was made to enforce the ordinances until after they were promulgated.

Our ultimate conclusion is that the elections held in Wards 2 and 5 of Vernon Parish on July 24, 1976, were conducted in accordance with the provisions of LSA-R.S. 26:582, et seq., including LSA-R.S. 26:586.1. We also find that Ordinance Number 3 and Ordinance Number 5, adopted by the Vernon Parish Police Jury on August 9, 1976, are valid and enforceable. We thus find no error in the judgment of the trial court which rejects plaintiffs’ demands for a preliminary injunction prohibiting the enforcement of those ordinances.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of the appeal are assessed to plaintiffs-appellants.

AFFIRMED.


text:
    B. F. ALBRITTON, Jr., Plaintiff-Appellant, v. VERNON PARISH POLICE JURY et al., Defendants-Appellees.
    No. 5849.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 10, 1977.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused Feb. 25, 1977.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    William C. Pegues, III, DeRidder, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

This is a companion to the case of Wyatt et al. v. Vernon Parish Police Jury et al., La.App., 341 So.2d 477, which is being decided on this date.

Plaintiff, B. F. Albritton, Jr., instituted this suit for a declaratory judgment and for injunctive relief against Vernon Parish Police Jury and Frank E. Howard, Sheriff of Vernon Parish. He seeks a judgment decreeing a local option election held in Ward 8 of Vernon Parish on September 25, 1976, and an ordinance adopted by the Vernon Parish Police Jury pursuant to that election to be null and void. He also prays for judgment enjoining the Sheriff of Vernon Parish, and his agents or employees, from enforcing the above ordinance.

After trial of the rule directing the sheriff to show cause why, a, preliminary injunction should not be granted, judgment was rendered by the trial court rejecting plaintiff’s demand for such an injunction. Plaintiff appealed.

The issues presented in this suit are the same as those which we determined in the companion case of Wyatt et al. v. Vernon Parish Police Jury et al., supra.

Plaintiff Albritton is a resident of Ward 8 of Vernon Parish and he holds a Class “B” beer permit authorizing the sale of alcoholic beverages in his retail business located in that ward.

Verified petitions containing the signatures of more than twenty-five percent of the qualified electors of Ward 8 of Vernon Parish were presented to the police jury of that parish, requesting that an election be called to submit to the qualified electors of that ward the four propositions which are set out in LSA-R.S. 26:583. One of those propositions, designated as proposition number 2, related to the sale of beverages containing not more than three and two-tenths percent alcohol by weight.

At a regular meeting of the Vernon Parish Police Jury held on August 9, 1976, that body adopted a resolution calling a local option election in Ward 8 of Vernon Parish in which the voters were to vote on the four propositions set out in LSA-R.S. 26:587. The election was called and held on September 25, 1976, with the result that all four propositions were defeated, that is, a majority of the electors refused to grant permission for alcoholic beverages of any kind to be manufactured or sold in that ward.

At its regular meeting held on October 12, 1976, the Vernon Parish Police Jury promulgated the results of the election, and on that date it adopted Ordinance Number 9 which prohibited the sale in Ward 8 of all of the alcoholic beverages described in the four propositions voted on at the above election. The ordinance provided that it was to become effective on November 12, 1976. It was published in the official journal of the parish, The Leesville Leader, on October 21, 1976.

This suit was filed on November 12,1976. A rule was issued directing the sheriff to show cause why a preliminary injunction should not issue, and that rule was tried on November 19, 1976. Judgment was rendered by the trial court on that date, rejecting plaintiff’s demand for a preliminary injunction. The present appeal was taken from that judgment.

As already noted, the issues presented here are identical to those which we decided in Wyatt et al. v. Vernon Parish Police Jury et al., supra. For the reasons which we assigned in Wyatt, we conclude that the judgment appealed from in the instant suit should be affirmed.

The judgment appealed from herein is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    Mrs. Willie Ray HOWARD et al. v. Mary Ellen CRIDER et al.
    No. 49092.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Horton Hillman, Leakesville, Darryl A. Hurt, Lucedale, for appellants.
    Ransom P. Jones, III, Pascagoula, for ap-pellees.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   LEE, Justice, for the Court:

This appeal is from a judgment of the Circuit Court of Greene County invalidating an election which banned the sale, distribution, storage, and possession of alcoholic beverages, wine and beer, in said county.

The sole question is whether or not the election was invalid.

On September 11, 1972, a petition was filed with the Board of Supervisors of Greene County, which reads as follows:

“To the Board of Supervisors of Greene County, Mississippi:
We, the undersigned qualified electors of Greene County, Mississippi, do hereby petition and request you to call an election at which there shall be submitted to the qualified electors of Greene County, Mississippi, the question of whether or not the sale, distribution, storage, and possession of alcoholic liquors shall be permitted in Greene County, Mississippi, as provided in the ‘Local Option Alcoholic Beverage Control Law’ of the State of Mississippi, being HB # 112 in the Mississippi Legislature Reg. Session, 1966.”

The Board of Supervisors entered an order directing the registrar to examine the petition for the purpose of determining whether a sufficient number of names of qualified electors appeared thereon to call the election, and he reported that the petition contained the required number of signatures. The Board then ordered [Appendix I] that the election commissioners hold an election at the time of the general election on November 7, 1972, and, without setting out a form of ballot, that the ballot contain a brief statement of the proposition submitted, and, on separate lines, that the following words be printed:

“I Vote FOR the legal sale of alcoholic beverages, wine and beer, in Greene County, Mississippi . ( )
I Vote AGAINST the legal sale of alcoholic beverages, wine and beer, in Greene County, Mississippi . ( )”

The Board further ordered, without setting forth a form of the publication, that notice of the election [Appendix II] be published in the Greene County Herald on October 13, 20 and 27, 1972. The notice was published October 13, 20 and 27, and November 3, 1972. The first day of publication, October 13, 1972, was less than thirty (30) days from November 7, 1972, the date of the election.

The ballot [Appendix III] was prepared by the Circuit Clerk and the Ticket Election Commissioner. It stated the proposition and that the election was held under Section 10208 [Mississippi Code Annotated § 67-3-7 (1972)] and Section 10265 [Mississippi Code Annotated § 67-1-13 (1972)], Mississippi Code of 1942, Annotated, and provided four (4) spaces for checking the ballot, two relating to alcoholic beverages, and two relating to wine and beer.

The order of the Board of Supervisors, in such elections, should adjudicate all the material facts and findings of the Board, and should specifically provide for the form of the proposition and the ballot, and the form of the notice of election, together with the dates of the publication. The ballot and notice of election then should be prepared, and the publication made, in conformity with such order.

Were the petition to call the election (wine and beer) and the notice of the election (wine and beer) legally sufficient?

The petition requested that an election be called for a vote on the question of whether or not the “sale, distribution, storage and possession of alcoholic liquors shall be permitted in Greene County as provided in the Local Option Alcoholic Beverage Control Law, being House Bill # 112 in the Mississippi Legislature, Regular Session, 1966.”

Petitioners proceeded under Chapter I, Title 67, Mississippi Code Annotated (1972), and even set out in their petition, verbatim, the title of said chapter. Section 67-1-5 of the act defines “alcoholic beverage” as “any alcoholic liquid capable of being consumed as a beverage by a human being, but shall not include wine containing not more than four percent of alcohol by weight and shall not include beer containing not more than four percent of alcohol by weight.” That section specifically excludes wine and beer.

This Court has held in a number of cases [State v. Hoyle, 211 Miss. 342, 51 So.2d 730 (1951); Martin v. Board of Supervisors of Winston County, 181 Miss. 363, 178 So. 315 (1938); Simpson County v. Burkett, 178 Miss. 44, 172 So. 329 (1937)] that where a statute contains no provision for notice of an election, the general statute will apply. Section 10208, Mississippi Code 1942 Annotated [Mississippi Code Annotated § 67-3-7 (1972)], being the wine and beer statute, contains no provision for notice, and the notice was required as provided by the cases supra.

We are of the opinion that the petition did not authorize the Board of Supervisors to call an election on the question of whether or not the sale, distribution, storage and possession of wine and beer should be permitted, that notice of the election was insufficient notice to the qualified electors on said question, and that the trial judge was correct in holding that part of the election invalid.

Was the election valid insofar as it related to the sale, distribution, storage and possession of alcoholic beverages (whiskey)?

The petition was sufficient to authorize the Board of Supervisors to call an election on the question of alcoholic beverages (whiskey) in said county. The publication of notice of the election and the notice complied with the Local Option Alcoholic Beverage Control Law. There were variances and irregularities between the order of the Board and the question submitted by the ballot, but there is no indication of fraud.

In City of Pascagoula v. May, 254 Miss. 208, 176 So.2d 892 (1965), which involved an election to determine whether the city should change its form of government, the election was held to be invalid by this Court for the reason that false and fictitious orders and notice of election were prepared by the City Clerk, and that the voters were not properly acquainted with the proposition, resulting in confusion to them.

In the case here, some voters may have preferred the county to be all “wet” or all “dry” and may have been confused by the notice of election and by the ballot. Some voters may have foreseen the difficulty of enforcing the alcoholic beverage (whiskey) law with wine and beer being legal and may have voted for that proposition, if they had known the election of wine and beer was void. How can it be said the very election and ballot that are tainted and invalid as to one proposition (wine and beer) are clean and valid as to another (alcoholic beverage-whiskey)?

We are of the opinion that the election was also invalid on the question of whether or not the sale, distribution, storage and possession of alcoholic beverages should be permitted, and that the trial judge was correct in so holding, but, since the petition was sufficient to authorize the Board of Supervisors to call an election on that question, the petition is remanded to the said Board of Supervisors for such purpose.

For the reasons stated, the case is affirmed, and the petition is remanded to the Board of Supervisors.

AFFIRMED; PETITION REMANDED TO BOARD OF SUPERVISORS.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

APPENDIX I

“ORDER BY THE BOARD OF SUPERVISORS GREENE COUNTY, MISSISSIPPI

There coming on to be heard the request by petitioners to remove their names from a petition heretofore filed to hold an election on the legal sale of alcoholic beverages in Greene County, and the Board having received a certificate from the County Registrar that upon a close and accurate check of all the petitions there was found that there were 1,342 qualified names on the petition to hold the election to determine the continued legal sale of alcoholic beverages in Greene County, Mississippi. The County Registrar also certified that 20% of the qualified electors is 1,109 and the Board doth find that there is more than 20% of the qualified electors on said petition to hold an election,

IT IS THEREFORE ORDERED That the election commissioners hold and conduct a general election on November 7, 1972, said election to be held along with the general election to be held on that date and the ballots used thereat shall contain a brief statement of the proposition submitted and on separate lines the words

Alcoholic Beverages, wine & beer

I vote FOR the legal sale of / whiskey in Greene County, Mississippi

Alcoholic Beverages, wine & beer

I vote AGAINST the legal sale of / whiskey in Greene County, Mississippi

IT IS FURTHER ORDERED That Notice of this election be published three times in the Greene County Herald starting October 13th, and be published the dates of the 13th, 20th, and 27th of October, 1972 in the Greene County Herald.

SO ORDERED This the 9th day of October, 1972, subsequent to the following vote of the members of the Board:

Those present and voting “Yes”: Ford James, Billy G. Cooper, Billy B. Robertson

Those absent and not voting: E. T. White, S. J. Henderson

/s/ Ford James_ Ford James, Vice-President, Board of Supervisors, acting president in the absence of E. T. White, President of the Board of Supervisors of Greene County, Mississippi

ATTEST:

/s/ Wayne Pulliam Wayne Pulliam, Chancery Clerk and Clerk of the Board of Supervisors of Greene County, Mississippi.”

APPENDIX II

“NOTICE TO THE QUALIFIED ELECTORS OF GREENE COUNTY, MISSISSIPPI

Notice is hereby given that an election will be held on November 7, 1972, at which there will be submitted to the qualified electors of Greene County, Mississippi, the question of whether or not the sale, distribution and possession of alcoholic liquors shall continue to be permitted in Greene County, Mississippi, as provided for by the laws of the State of Mississippi.

WAYNE PULLIAM,

Clerk of the Board of Supervisors”

APPENDIX III

“STATE OF MISSISSIPPI SPECIAL ELECTION NOVEMBER 7.1972

ELECTION ON ALCOHOLIC BEVERAGES, WINE AND BEER UNDER SECTION 10,208 AND SECTION 10,265 OF THE MISSISSIPPI CODE OF 1942, AS AMENDED.

‘Shall the transportation, storage, sale, distribution, receipt and/or manufacture of alcoholic beverages, wine and beer as provided for in Section 10,208 and Section 10,265 of the Mississippi Code of 1942, as amended, be permitted and continued in Greene County, Mississippi.’

I Vote FOR the legal sale of Alcoholic Beverages, in Greene County, Mississippi.( )

I Vote AGAINST the legal sale of Alcoholic Beverages in Greene County, Mississippi.( )

I Vote FOR the legal sale of Wine and Beer in Greene County, Mississippi.( )

I Vote AGAINST the legal sale of Wine and Beer in Greene County, Mississippi .( )’


author: SHORES, Justice.

text:
    W. Q. EDMONDSON v. K. E. BLAKEY et al.
    SC 1819.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      James D. Harris, Jr., Montgomery, for appellant.
    John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellees.
   SHORES, Justice.

Edmondson filed suit against K. E. Bla-key and The Aetna Casualty and Surety Company. Blakey was the foreman on a project being performed by Kiewit-Stan-dard, the employer of Edmondson and Bla-key. Aetna was Kiewit-Standard’s workman’s compensation carrier.

Blakey was charged with negligence in that he required Edmondson to operate a front-end loader which had defective brakes and with which Edmondson was unfamiliar. As Edmondson attempted to drive the front-end loader down an incline, it “got away” from him, he contends, because the brakes were defective. He jumped off of the runaway machine and suffered a broken leg.

The theory of Edmondson’s claim against Aetna was negligent inspection under § 324 A of Restatement of The Law, Torts 2d, and Beasley v. McDonald Engineering Company, 287 Ala. 189, 249 So.2d 844 (1971). The trial court granted Aetna’s motion for summary judgment and the case proceeded to trial against Blakey, after which the jury returned a verdict in favor of the defendant. Edmondson then filed a motion for new trial, which was denied, and this appeal followed.

AETNA’S MOTIONS TO DISMISS THE APPEAL

Aetna strongly insists that it is not a party to this appeal. As indicated, the trial court granted Aetna’s motion for summary judgment on September 5, 1975. The case went to trial against Blakey and a judgment was rendered on a jury verdict in his favor on September 30, 1975. Thereafter, Edmondson filed a motion for a new trial which was denied on November 25, 1975.

On January 5, 1976, Edmondson filed a notice of appeal which is in the following form:

"NOTICE OF APPEAL TO THE COURT OF CIVIL APPEALS OF ALABAMA
"WADE Q. EDMONDSON Appellant Vs. K. E. BLAKEY Appellee
In the Circuit Court of Autauga County Civil Action No. 3750
September 30, 1975 Date of Judgment &
November 25, 1975 Post Judgment Order
"Notice is hereby given that Wade Q. Edmondson appeals to the above-named court from the final judgment and the order dismissing his Motion for a New Trial entered in this cause.
"Security for costs of appeal is filed herewith this Notice of Appeal.
"Filed January 5th, 1976 Date
"Certified as a true copy:
/s/ Fred Posey_ Circuit Clerk
Signed by Attorney__ Wade Q. Edmondson Route 5, Box 613 Prattville, Alabama
/s/ James D. Harris, Jr. James D. Harris, Jr. Attorney for Appellant Harris & Harris 1406 Union Bank Building Montgomery, Alabama 36104"

Aetna insists that the first notice it received which in anyway indicated that the trial court’s action on its motion for summary judgment was being challenged was when its attorney, who also represented Mr. Blakey, received a copy of Edmondson’s brief in this case. There is nothing on the notice of appeal to indicate that Aetna is an appellee; and it affirmatively indicates that the judgments appealed are those dated September 30,1975, and November 25,1975, and are described as the final judgment and order dismissing his motion for a new trial. These judgments related only to the defendant Blakey. The trial court’s judgment granting the motion for summary judgment at Aetna’s request was entered September 5,1975. That judgment is not alluded to in any manner in the notice of appeal and only Blakey is referred to as an appellee. The notice does not even contain the traditional “et al.” to indicate multiple appellees.

Our ARAP 3(c), like its federal counterpart, provides for a simple notice of appeal specifying the party or parties taking the appeal. The rule says that the notice “. shall designate the judgment, order or part thereof appealed from . . . ” The federal courts have been very liberal in entertaining appeals even where the notice fails to comply literally with the requirements of Rule 3(c). The test for dismissal for failure to comply seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice. Jones v. Chaney & James Const. Co., 399 F.2d 84 (5th Cir. 1968); Donovan v. Esso Shipping Co., 259 F.2d 65 (3rd Cir. 1958).

Several federal decisions have concluded that FRAP 3(c), although given its liberal interpretation by the courts, requires that in a multi-party suit, the notice of appeal must, to be effective, include the names of those parties taking the appeal. Van Hoose, et al. v. Eidson, et al., 450 F.2d 746 (6th Cir. 1971); Cook & Sons Equipment, Inc. v. Killen, 277 F.2d 607 (9th Cir. 1960).

While we might not be willing to go so far as to require the designation of each appellee in the notice of appeal, we do think that fairness requires that some indication appear that an appeal has been taken to reverse a judgment rendered in favor of a prevailing party. From the notice here, there is absolutely nothing to indicate that the judgment in favor of Aetna has been appealed. The notice not only fails to list Aetna as an appellee, but also affirmatively shows that the only two judgments being appealed are those involving only the appel-lee Blakey.

This conclusion probably would not be warranted in a case involving a single appellee. A notice of appeal indicating that an appeal has been taken from a judgment favorable to the appellee should give him notice that review might be sought as to matter not specified in the notice of appeal. In fact, that is contemplated by ARAP 3(c).

The spirit of the ARAP is recognized and restated to insure the just, speedy and inexpensive determination of every appellate proceeding on its merits. The only jurisdictional rule in the entire rules is the timely filing of the notice of appeal. Nothing in the rules is designed to catch the unwary on technicalities. Jones v. Chaney & James Const. Co., supra. A simple statement indicating what judgments the appellant appeals from is all that is required. In this case, the appellant has indicated that he appeals from two judgments rendered against him and in favor of the defendant Blakey. To treat this as an appeal from a judgment in favor of Aetna is to give more than a liberal construction to ARAP 3(c). It is to read into the notice of appeal something which is simply not there. This would be unfair to Aetna. Appellant could have included Aetna in the designated ap-pellees, or could have indicated that he was appealing from the judgment favorable to Aetna. He has done neither. Furthermore, had the appellant included in the notice of appeal a designation of the record to include the order entered on the motion for summary judgment as contemplated by Form # 1, this may well have constituted notice to Aetna that that judgment was being appealed. However, the appellant failed to do that. Instead, he simply says, in response to Aetna’s motion to dismiss the appeal, that he designated the entire record; and it includes the order granting Aetna’s motion for summary judgment.

The failure of the appellant to either (1) include Aetna as a named appellee; or (2) to indicate by description or date that the appeal was from the order granting Aetna’s motion for summary judgment; or (3) indicating by designation that that order was being challenged; compels us to conclude that there is nothing in the notice of appeal or otherwise manifesting an intent to appeal from the summary judgment order entered in favor of Aetna. The motion to dismiss the appeal as to it is, therefore, granted.

THE BLAKEY APPEAL

New Trial

Edmondson contends that the trial court committed reversible error in overruling his motion for a new trial which was grounded on the allegation that the verdict was not sustained by the great preponderance of the evidence. It is appellant’s contention that the evidence clearly shows that Blakey not only failed to exercise reasonable care under the circumstances but acted with a reckless indifference to the consequences by ordering Edmondson to operate a dangerously defective machine with which he was not familiar.

Title 7, § 276, Code of Alabama, authorizes a new trial where the verdict or decision is not sustained by the great preponderance of the evidence . . ” This court has often held that it is the trial judge’s duty to grant a motion for a new trial if, after allowing all reasonable presumptions of its correctness, the great preponderance of the evidence against the ver-diet is so decided as to clearly convince the judge that it is wrong and unjust. W. M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937); City of Ozark v. Byrd, 225 Ala. 332, 143 So. 168 (1932); Jena Lumber Co. v. Marlowe Lumber Co., 208 Ala. 385, 94 So. 492 (1922). A jury verdict should not be set aside, however, merely because it does not correspond to the court’s opinion as to the weight of the evidence or merely because it is against the mere preponderance of the evidence. Dean v. Mayes, 274 Ala. 88, 145 So.2d 439 (1962).

For this court to overrule the trial court’s denial of a motion for a new trial the evidence must so greatly preponderate as to clearly convince this court that the verdict is wrong and unjust. Kurn v. Counts, 247 Ala. 129, 22 So.2d 725 (1945). We have repeatedly held that verdicts are presumed correct and that no ground stated in a motion for a new trial is more carefully scrutinized than that the verdict was against the evidence. Callahan v. Booth, 275 Ala. 275, 154 So.2d 32 (1963); Dean v. Mayes, supra. In addition, where the trial judge denies a motion for a new trial the presumption in favor of the correctness of the verdict is strengthened. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961).

Again and again the rule has been stated that a decision of the trial court in denying the motion for a new trial will not be reversed on the ground that the verdict is against the evidence unless, after allowing all reasonable presumptions of correctness, the preponderance of the evidence clearly convinces this court that the trial judge was wrong. Bush v. Stanton, 273 Ala. 615, 143 So.2d 621 (1962). Or, stated differently, where evidence is presented which, if believed, supports the verdict, a motion for a new trial on the ground that the verdict is against the evidence may be properly denied. Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963); Dean v. Mayes, supra.

We have carefully read the evidence in this case and are convinced that it contains testimony which, if believed by the jury as it obviously was, justifies the verdict in favor of appellee Blakey. The judgment in his favor on the verdict and the order denying Edmondson’s motion for new trial are, therefore, affirmed.

Appeal dismissed as to Aetna. Judgment in favor of Blakey is affirmed.

MADDOX, FAULKNER and BEATTY, JJ., and EMBRY, FRANK B., Supernumerary Circuit Judge, sitting by designation of the Chief Justice, concur.

      . We have referred to the appellee as “Blakey” because his name was so denominated throughout most of the pleadings below and in documents filed in this court. We note, however, that his name is properly spelled “Blaik-ie” in each instrument which carries his signature,


author: EMBRY, Justice.

text:
    JEFFERSON COUNTY TRUCK GROWERS ASSOCIATION, a corp. v. Jack R. TANNER.
    SC 1749.
    Supreme Court of Alabama.
    Jan. 7, 1977.

      George I. Case, Jr., Birmingham, for appellant.
    William H. Mills, Rogers, Howard, Redden & Mills, Birmingham, for appellee.
   EMBRY, Justice.

The issue on this appeal is whether the evidence was sufficient to permit the trial court to find that a corporate officer-director did not breach fiduciary duties owed the corporation and did not realize personal profit or gain in dealing with corporate assets. We find no error in the trial court’s conclusion that he did not, and affirm the judgment.

Basically, this case involves three transactions in which Jefferson County Truck Growers Association, a Corporation, leased property to others who, in turn, subleased, and assigned an interest in their leases, to one Jack R. Tanner.

The Association is an Alabama corporation, managed by a nine member Board of Directors from which it elects a President who presides over board meetings who only votes in the event of a tie. In July 1956, the Association was in possession and control of, with the right to lease, the properties referred to in this litigation. On 2 June 1956, Tanner became a member of the Board of Directors of the Association, was elected its President, and served until 1972. In addition, from June 1957, he served as temporary market manager.

The Association has, for many years, operated the Farmers Market in Birmingham on premises where Southern Railway Company formerly operated its Finley Avenue yards. It brought this action in May 1974 against Jack R. Tanner and others but, during trial, dismissed as to all except Tanner. The action, by a three count complaint, sought an accounting from, and judgment against, Tanner, of profits allegedly accruing to him from the breach of fiduciary duties owing the Association from June 1956, to June 1972, during which time he allegedly handled, on behalf of the corporation, leases of three parcels of its property and had a personal participation in those leases.

Tanner denied the breach of any fiduciary duties, claimed his personal participation in the three leases was known to the Board of Directors, and it either expressly approved, or made no objection; he also defended on the basis of laches and the statute of limitations.

The case was heard ore tenus, judgment adverse to the Association entered, and this appeal taken.

The principle that governs this case is: an officer-director of a corporation owes a duty of managing the corporate affairs honestly and impartially and he may not achieve personal advantage, profit, or gain from his position.

I

The transaction complained of in count one, of the three count complaint, relates to a parcel of property on which a structure known as the Retail Building is located. In 1960, the Association leased it to one Schmell for a monthly rent of $500. The lease, additional options about renewals, and other considerations about this transaction were discussed at two separate meetings of the Board of Directors. Tanner, its President and member of the Board, executed the lease in behalf of the Association. Schmell spent between $70,000 and $80,000 renovating the building for use as a food store; later he subleased it to Eagle Food Stores, Inc., at a rental price of $1,000 a month. Tanner was not aware of the sublease to Eagle, had no interest in the sublease at the time, and did not discuss with Schmell the latter’s requests of the Association for additional options. Neither did he attempt to persuade the members of the Board to vote in favor of Schmell’s requests.

During January 1961, in consideration of Tanner’s investment, over the years, of about $70,000 in other business ventures of Schmell, he transferred to Tanner a half interest of the sublease to Eagle. Thereafter, Tanner received sums of Eagle’s rental payments ranging from $250 to $350 monthly, until 1976, allegedly totaling $60,-100. The Board of Directors was aware of his interest in this transaction from the time he acquired it and never made objection.

(A) As to each count we must determine whether, under the evidence, the trial judge was authorized to find there was no conflict between Tanner’s interests in the subleases and his obligations to the Association in his capacity as President or Director. There are permissible conclusions common to all three counts which can be drawn: the leases from the corporation to Herman Schmell and to the Smoke House, Inc., were valid, duly approved in meetings of the Board of Directors where Tanner’s presence was not necessary to constitute a quorum, and his vote not necessary to authorize them; Tanner had some sort of interest in each transaction, either in Schmell’s subleases or as a direct participant in the Smoke House, Inc., which was known to and approved by the Association.

1. As to count one, there is evidence that Tanner did not use his position as President to influence or persuade the Association in arriving at the terms of its agreements with Schmell regarding the lease and its attendant options; that members of the Board of Directors were aware of Tanner’s interest in the sublease from Schmell to Eagle Food Stores and never made objection to his interest.

The trial court found the claim was barred by the one-year statute of limitation found in Tit. 7, § 42 of the Code. The statute is applicable to actions based on fraud. However, a corporate director is a quasi trustee, and as long as the fiduciary relationship between him and the corporation exists, the statute of limitations will not run against a claim based on his wrongdoing. This principle has been applied in cases based on self-dealing where the director himself was responsible for the concealment of facts upon which a claim could be based and where knowledge of those facts were solely within the director’s control. Greenleaf v. Profile Cotton Mills, 235 Ala. 530, 180 So. 582 (1938); Coxe v. Huntsville Gas Light Co., 106 Ala. 373, 17 So. 626 (1895). Plaintiff’s claim was filed in 1974. But, based on the evidence, the trial court found the plaintiff-corporation had knowledge of Tanner’s interest in the Eagle Food Stores sublease in 1961 and such knowledge was sufficient to provoke inquiry in reasonable minds which would have led to the facts on which the claim is based. Fraud is deemed to have been discovered when it ought to have been discovered. It is sufficient to begin the running of the statute of limitations that facts were known which would put a reasonable mind on notice that facts to support a claim of fraud might be discovered upon inquiry. Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636 (1973). There was sufficient evidence from which the trial court could conclude that the limitations period had run.

II

The transaction which is the basis of the second count concerns a restaurant built on a portion of its premises by the Association. When it sought a tenant to operate the restaurant, one Todd offered to rent and operate it but then became reluctant to conclude an agreement to do so; at that point, one Hollis, a Director of the Association, brought Todd and Tanner together to discuss this venture. Tanner agreed to participate with Todd; to that end a corporation was organized with each taking 50% of the stock and the Board of Directors of the Association authorized a lease to that corporation, Smoke House, Inc., at a monthly rental of $400. Tanner invested $17,000 in the business. At a meeting of the Association’s Board of Directors on July 24, 1957, he explained in detail his interest in Smoke House, Inc.; stated if there was any question of conflict of interest in the situation he would resign as President of Truck Growers; further, in the future he would abstain from voting on any matter involving transactions with Smoke House, Inc. Motion was made and unanimously adopted ratifying all contracts and agreements between the Association and Smoke House, Inc.; the Board further stated it had no objection to Tanner’s interest in the restaurant and would not raise any question in the future as to a conflict of interest because of it. All Directors were present at this meeting.

Tanner sustained a loss of about $35,000 to $40,000 in the restaurant and a year later, in 1958, withdrew from the business and turned his stock over to Todd. In all further transactions between Todd and the Board concerning the restaurant, Tanner absented himself and did not participate in the discussions. In October 1958, pursuant to a unanimous vote at a meeting of seven of the nine Directors, the rent on the restaurant was reduced from $400 to $200 a month. Beginning in 1962, Smoke House, Inc., began making payments of $200 each, in some months, to Tanner. A total of $22,041.23 was paid to him through April 1974, when the last payment was made. There is evidence this money was partial repayment of monies he had invested in the restaurant and for the stock he had transferred to Todd. This sum the Association contends is due it from Tanner.

The evidence regarding the $200 payments to Tanner concerning the restaurant is the only evidence directly challenged by plaintiff on appeal. One witness, a member of the Board of Directors, testified that he had no knowledge of these payments and that to his knowledge, neither did any of the other Directors. Tanner testified that he had not informed the Board he was receiving the payments. Plaintiff contends the $200 payment was a kickback to Tanner so long as the reduced rent of $200 was being paid Truck Growers.

2. As to count two, there is evidence that Tanner’s participation in the restaurant business was known to and approved by the Association; that Tanner sustained a substantial financial loss in that venture; that he withdrew from the restaurant business, transferred all his stock back to Todd, and had nothing to do with the Association’s decisions regarding the reduction of rent on the restaurant. Further, the $200 payments to Tanner were begun four years after he withdrew from the business and appear to be a form of repayment for Tanner’s initial investment loss, as testified to by Todd and Tanner, instead of the product of any agreement or activity related to Tanner’s position as President of the Association; therefore, not a kickback. The trial court’s judgment reflects its conclusion that the $200 payments to Tanner were not kickbacks and the evidence was amply sufficient to authorize the trial court to conclude there was no conflict of interest.

Ill

Count three involves a portion of the Farmers Market premises leased by Truck Growers to Schmell, in 1957, on which Schmell constructed a service station. After making improvements to this property Schmell subleased to Arkansas Fuel Oil Corporation. Tanner had no knowledge of the sublease until it was brought before the Board of Directors for approval. It was approved by signature of seven of the Directors, Tanner’s signature not appearing. A year later, in 1958, Tanner and Schmell entered into several business ventures together, none of which involved transactions between Schmell and Truck Growers. Tanner advanced Schmell over $20,000 for investment in these ventures. As consideration for these advancements, Schmell transferred one-half interest in the Arkansas Fuel Oil Corporation sublease to Tanner, on October 11, 1958. The monthly rent from the sublease was applied $50 to plaintiff and $250 to the First National Bank of Tuscaloosa on a loan outstanding to Schmell. Tanner has never received any remuneration as a result of this one-half interest in that sublease. Truck Growers claims Tanner received a total of $28,500 from his interest in the sublease and owes that amount to it.

3. There is no evidence regarding count three to indicate Tanner used his position to influence the Association in its lease of the service station property to Schmell, nor was he in any way involved with transactions between Schmell and the Association concerning the Board’s approval of the sublease to Arkansas Fuel Oil Corporation. Any interest Tanner had in the sublease was known to the Association for many years before this action was initiated. There was also evidence that Tanner had never actually received money payments as a result of his interest in the sublease.

The trial court also found that plaintiff had knowledge of defendant’s interest in the Arkansas Fuel Oil Corporation in 1958 and the claim in count three was barred by the one-year statute of limitations. Tit. 7, § 42 of the Code. For the reasons set out in our discussion of the applicability of the same statute to the claim in count one, we hold the claim in count three also barred.

In his answer, defendant asserted the defense of laches, and the trial court held the claims were so barred. Under the facts of this case the doctrine was not applicable and the trial court correctly concluded the claims in counts one and three were barred by the statute of limitations, therefore, its incorrect application of the doctrine of laches was harmless error.

The trial court also found plaintiff’s claim as asserted in count two, involving the Smoke House, Inc., to be barred by the statute of limitations and by laches. Since, as we have determined, there was sufficient evidence to find there was no conflict of interest regarding payments from the Smoke House, therefore no breach of duty, it is not necessary to reach the question of a bar to that claim.

A review of all the evidence shows there was sufficient evidence upon which to base a finding, as to each count, that there was no breach of fiduciary duty, and two of three of plaintiff’s claims were barred by the statute of limitations. The trial court’s findings as expressed in its final decree are in accord with the law of Alabama under the principles governing the relationship between a corporation and its directors. Ingalls Iron Works Co. v. Ingalls Foundation, 266 Ala. 656, 98 So.2d 30 (1957); Sellers v. Head, 261 Ala. 212, 73 So.2d 747 (1954).

The trial judge heard the evidence ore tenus. There was conflicting evidence as to the extent of disclosure of Tanner’s interest in the transactions and the trial judge was in the best position to weigh the evidence; every presumption will be indulged in favor of the trial court’s findings; such findings were not palpably wrong and will not be disturbed. Lockett v. Coleman, 293 Ala. 613, 308 So.2d 689 (1974).

AFFIRMED.

BLOODWORTH, FAULKNER and AL-MON, JJ., and SIMMONS, R. C. J. (Retired Circuit Judge sitting by designation of the Chief Justice), concur.


author: BRADLEY, Judge.

text:
    Henry R. STEWART, Jr. v. Sharon Lee STEWART.
    Civ. 915.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1977.

      Perry Hubbard, Hubbard & Waldrop, Tuscaloosa, for appellant.
    Ralph I. Knowles, Jr., Drake & Knowles, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This appeal is from a decree of the Circuit Court of Tuscaloosa County divorcing the parties to this proceeding, making a property division, awarding alimony in gross to the wife, and requiring the husband to pay the costs of the proceeding and the wife’s attorney’s fee. Appellant-husband asserts that the trial court erred in its division of property and award of alimony in gross.

The facts show that the parties were married in 1966 shortly after both received undergraduate degrees from Cornell College in Mt. Vernon, Iowa. The husband at this time was pursuing a masters degree at the University of Denver in Denver, Colorado, which he received in 1967. During the short stay in Denver, the wife worked part-time in the University of Denver psychology department.

After the husband completed school in Denver, the couple moved back to Mt. Vernon, Iowa, where the husband was employed by Cornell College as a teacher. During the time the couple were in Mt. Vernon, the wife worked parttime and earned a masters degree in library science from the University of Iowa in Iowa City, Iowa. The husband paid the couple’s living expenses and the wife’s school expenses, including her tuition.

After living in Mt. Vernon for two years, the couple moved to Bloomington, Indiana, so that the husband could undertake training leading to a doctorate degree. He obtained an annual tax-free fellowship of $6,500 to underwrite the bulk of his expenses while seeking his doctorate. The wife worked parttime in a furniture store for a minimal wage, although she had been offered a job in a public library where she would have worked in her professional field and received a higher salary. Most of the furniture and furnishings owned by the couple at the time of their divorce were acquired during the time the wife worked at the furniture store; she exchanged her work for the furniture and furnishings and those items were also discounted to her because of her employment.

After the husband received his doctorate in 1972, the couple moved to Tuscaloosa, Alabama where the husband was employed by the University of Alabama. Several months after the move the wife found work with the University School of Business Administration as a librarian. Both parties are still employed by the University. The wife’s present salary is $10,500. The husband earns $16,500 for a nine month term; if he teaches during the summer he receives thirty percent more. His salary for the previous year was approximately $19,000.

No children were born of the marriage.

The parties separated in April 1975 and the husband filed suit for divorce for incompatibility the following October. At the insistence of the wife, shortly before the separation the couple engaged in several sessions of marriage counselling which were unproductive. The husband remained unhappy with the marriage relationship and continued to insist upon obtaining a divorce. He moved out of the marital home, and a divorce for incompatibility was granted to him in May 1976.

At the time of the separation in 1975 the couple’s marital property consisted of the household furniture and furnishings, a car, a joint checking account, a joint savings account, and some stocks and bonds. The husband testified that $10,000 would be required to replace the furniture and furnishings, although that was not the true value of the property since it had been purchased for considerably less than that amount and was now several years old. The wife estimated the value of the car, a 1975 Oldsmobile Starfire, to be $4,000. The husband stated it was purchased for $5,500 and at the time of trial the outstanding debt on the loan for it was $1,585. The joint checking account contained $1,500 when the parties separated on April 30, 1975; the wife said there was about $1,000 in the account when she closed it on August 30, 1975. Both parties made deposits to and withdrawals from the account during the interim between April and August. The joint savings account contained an amount estimated to be between $2,500 and $2,800. The stocks and bonds were valued at approximately $1,085.

The couple’s only outstanding debts at the time of the divorce were $1,585 owed on the 1975 Oldsmobile automobile and $6,665 owed on a 1975 Alfa Romeo automobile purchased by the husband after the parties separated. Payments to a credit union for these two loans were deducted from the husband’s salary.

As previously noted, the trial court divided the marital property by awarding to the wife all the household furniture and furnishings, the savings account, the Oldsmobile free of debt, and one-half of the proceeds from the sale of stock in the Continental Mortgage Company should it prove to have value. The husband received all of the jointly owned stocks and bonds, the Alfa Romeo, and the other half of the proceeds from the sale of the Continental Mortgage stock. The wife also was granted $10,500 alimony in gross to be paid in reasonable monthly payments. The husband was additionally required to pay the mortgage indebtedness on the two automobiles and the wife’s attorney’s fee of $600.

In deciding the merits of this appeal we begin with the proposition that when a trial court renders a decree after a hearing ore terms, such decree is presumed correct if supported by the evidence. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962); Fultz v. Fultz, 47 Ala.App. 502, 257 So.2d 362 (1972).

With regard to the division of property and determination of alimony in a divorce case, such matters are within the sound discretion of the trial court and that discretion will not be reversed except for palpable abuse. Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (1975); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975). Furthermore, there are not fixed standards for determining the amount of alimony or for dividing the parties’ property; as a consequence, each case must be decided on the basis of its own facts and circumstances Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975). The division of property is not required to be on an equal basis but nonetheless must be graduated upon the circumstances of the case. Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975); Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975).

In analyzing the husband’s contention that the property settlement was inequitable and an abuse of the trial court’s discretion, we note first that out of the marital property owned by the parties at the time of their separation the husband received only stocks and bonds valued at $1,085 at the time of trial; the wife received the rest. All of the items of personal property previously discussed were acquired during the ten year marriage by the joint efforts of both the parties and were intended to be for the benefit of both. While it is true that the furniture and furnishings were acquired due to the wife’s employment in a furniture store, during that same period of time the husband was receiving a tax-free stipend which contributed to the support of both while the wife’s salary was used to buy furniture. At other periods of the marriage the wife worked so that the husband could attend school; likewise the husband worked while the wife attended school.

A comparison of the relative values of the property received in the divorce shows that the wife received approximately eighty percent of the personal property jointly owned when the parties separated as opposed to only twenty percent received by the husband. We consider such an unequal division of property to be an abuse of the trial court’s discretion in view of the particular circumstances of this case and the joint effort of the parties in acquiring the marital property.

We consider a fair and just division of property to be one allowing the wife to receive all of the furniture and furnishings owned by the parties at the time of divorce, the 1975 Oldsmobile and its outstanding indebtedness at the time of the divorce decree, $1,000 from the savings accounts, and one-half of the proceeds from the sale of stock in Continental Mortgage Company should it prove to have value. The husband should receive as his share the remainder of the savings accounts, the stocks and bonds owned by the parties at the time of the decree, and one-half of the proceeds from the sale of the stock in Continental Mortgage Company should such stock prove to have value.

The appellant-husband also maintains that the award of $10,500 as alimony in gross was an abuse of the trial court’s discretion. In that alimony in gross is intended to compensate a wife for the inchoate marital rights and right to future support which she loses by virtue of the divorce, as well as substitute for a property settlement where liquidation of the marital property is not practical, we find no abuse of discretion in the $10,500 award.

Alimony in gross was defined in Hager v. Hager, 293 Ala. 47 at 55, 299 So.2d 743 at 750 (1974), as follows:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce.”

Authority cited for this definition is Borton v. Borton, 230 Ala. 630, 162 So. 529 (1935). We do. not think the Borton decision limits alimony in gross to compensate only for the lost inchoate property rights. The court there referred to both a husband’s obligation to support his wife and to a wife’s dower, quarantine, homestead and distributive share interests in her husband’s property. It then stated:

“The allowance of alimony in gross upon divorce is in part because of cutting off these prospective property rights of the wife.” (Emphasis supplied.) 230 Ala. at 632, 162 So. at 530.

Prior to Borton, alimony in gross was stated in Smith v. Rogers, 215 Ala. 581, 112 So. 190 (1927) to effect a final termination of the property rights of the parties and was defined at page 583 of 215 Ala., at page 192 of 112 So. as:

. . an approximate appraisal of the present value of the wife’s future support, and, in a measure, a compensation for her loss of inchoate property rights in her husband’s homestead and other estate . . .

This definition has been cited with approval by the supreme court subsequent to Borton, apparently unaltered by that decision. See, e. g., Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867 (1958); Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968). Thus, we conclude that Hager was not intended to change the definition of alimony in gross as stated in Rogers v. Smith, supra, but was merely silent as to a present valuation of a wife’s future support since that aspect of alimony in gross was not an issue in Hager.

In the case at bar the amount awarded was denominated by the trial court as alimony in gross, the amount was fixed ($10,500), the time of payment was certain (monthly until satisfied), and there was no reservation in the decree for future control by the court. We therefore consider the award to be alimony in gross. Hager v. Hager, supra. This award would have to be for the purpose primarily of compensating the wife for the loss of her future support because at the time of the divorce, the husband’s estate did not have a value of much more than $1,500. However, he was earning a salary of approximately $20,000 a year with a reasonable expectation of earning more in the future. Considering the length of the marriage, the contribution made to the marriage by the wife, the ages and health of the parties, and the relative future earning capacities of the parties, we cannot say that the award of alimony in gross in the amount of $10,500 was an abuse of the trial court’s discretion.

The wife filed a motion with this court requesting that a reasonable attorney’s fee be granted to her counsel for the appeal of this case. After careful consideration of the facts in this case and the results of the appeal, we conclude that the motion should be denied.

The property is to be divided as previously set forth. The husband is required to satisfy the indebtedness on the automobile purchased by him after the separation, pay $10,500 as alimony in gross to the wife in reasonable monthly installments, and pay to the wife $600 as her attorney’s fee. The decree appealed from is affirmed in part, reversed in part and remanded for entry of a decree in accordance with this opinion.

MOTION DENIED.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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


text:
    Russell Hobson HURLEY, Jr. v. STATE.
    7 Div. 395.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.

      Certiorari denied, Ala., 341 So.2d 497.
    Russell Hobson Hurley, Jr., pro se.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree of Allen Lee Harmon. The jury fixed his punishment at imprisonment in the penitentiary for life, and the court sentenced him accordingly.

Allen Lee Harmon was one of two Lincoln police officers killed during the early morning hours of November 16, 1974. The other was Otis Lee Robinson. Appellant was charged by separate indictments with the murder of both officers. The first trial was for the murder of Robinson, which resulted in a conviction of murder in the first degree, a sentence of imprisonment in the penitentiary for life and an affirmance in Hurley v. State, Ala.Cr.App., 335 So.2d 183, cert. denied, Ala., 335 So.2d 188. In all respects material to this appeal, the evidence in this case is the same as that summarized in the opinion in that case.

Appellant bases his argument for a reversal on nine distinct grounds. Two of them are the same as two decided adversely to appellant in the other case, specifically (1) the contention that defendant should have been granted a change of venue, and (2) his contention that a failure to hold a preliminary hearing was a denial of due process of law. We adhere to what was previously held and turn to a consideration of the other seven points made by appellant.

I

The argument is made that there was a discrepancy between the testimony of Officer Hines as to a description of the murderer and some police teletype dispatches — not a part of the evidence — carrying the description given by Officer Hines. Appellant now concludes therefrom that there was a suppression of evidence by the State. No such contention was made on the trial. Even on appeal, appellant does not purport to present anything in the way of a showing of suppression of evidence other than the foregoing non sequitur. The record furnishes no basis for a conclusion that there was a suppression of evidence by the State.

II

The contention is made that State Toxicologist John Case was allowed to give, over objection of defendant, hearsay testimony as to fingerprints removed from the Lincoln patrol car in which the two men were killed. It is contended by appellant that the absent witness Cary Wallace actually removed the fingerprints instead of Mr. Case. Mr. Wallace was an assistant of Mr. Case, who was present at the time of the lifting of the fingerprints from the automobile. The record indicates that Mr. Case was testifying from his own knowledge of the lifting of the fingerprints and not from what Mr. Wallace had told him. At any rate, the record shows there was no objection by defendant to Mr. Case’s testimony. Appellant argues that there was an objection, which he admits is not in the transcript. We must accept the transcript, rather than the statement of appellant, for the transcript to which no timely objection has been made to the trial court is “conclusively presumed to be correct.” Code of Alabama, Recomp. 1958, Tit. 7, § 827(la).

III

Appellant also argues that the State’s affidavits in opposition to defendant’s motion for a change of venue were illegally received in evidence over the objection of defendant. Here again, the transcript does not support the contention of appellant. It should be noted, moreover, that it is difficult to envision a valid objection by defendant to affidavits, instead of oral testimony, offered by the State in opposition to a motion of defendant which defendant endeavored to support by affidavits, instead of oral testimony, offered by defendant and received in evidence.

IV

The contention of appellant that young people were excluded from the jury is not supported by any part of the record. The record affirmatively shows that no objection was made to the venire. In the absence of an objection to the venire in the trial court, a question as to its validity cannot be raised on appeal. Ex parte Campbell, 278 Ala. 114, 176 So. 242; Welch v. State, 278 Ala. 177, 176 So.2d 872.

V

Appellant complains of the excusal by the court, prior to trial and out of the presence of defendant, of six persons on the venire. No objection was made by defendant on or before the trial to this action of the trial court. It cannot be raised for the first time on appeal. Stinson v. State, 223 Ala. 327, 135 So.2d 571; Douglas v. State, 50 Ala.App. 602, 281 So.2d 652. Furthermore, the pre-Furman rule (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346) requiring a special venire and the presence of defendant at a hearing on a question whether a juror will be excused in a case in which capital punishment could be imposed at the discretion of the jury, is no longer applicable. Scott v. State, Ala.Cr.App., 331 So.2d 759, cert. denied, Ala., 331 So.2d 762; Fisher v. State, 57 Ala.App. 310, 328 So.2d 311; Dean v. State, 54 Ala.App. 270, 307 So.2d 77; Usrey v. State, 54 Ala.App. 448, 309 So.2d 485.

VI

Appellant charges “that the Court and prosecutor was [sic] to [sic] active to directing witness to answer questions that was [sic] not responsive and the prosecutor testifying for witness was in doubt as to how to answer questions.” However the charge is interpreted, we find no support in the record for any implication of improper conduct by the trial judge or the prosecuting attorneys.

VII

Appellant’s contention, that on one or more occasions his attorney was not present while the trial was proceeding, is contrary to the facts shown by the transcript. We find no justification whatever for appellant’s criticism of the transcript, which throughout has impressive indicia of accuracy.

We have searched the record for any error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court, and the judgment appealed from is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Russell Hobson HURLEY, Jr.
    SC 2249.
    Supreme Court of Alabama.
    Jan. 21, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: PER CURIAM.

text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, and Arthur Pritchard, Petitioners, v. Herman T. BYRNE, Respondent.
    No. 48376.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Rehearing Denied Feb. 11, 1977.
    Mercer K. Clarke, of Smathers & Thompson, Miami, for petitioners.
    Guy B. Bailey, Jr., of the Law Offices of Guy B. Bailey, Jr., Miami, for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5c(6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certio-rari is discharged.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.