text:
    SUN OIL COMPANY and Placid Oil Company, Defendants-Appellants, v. Paul BROADHEAD et al., Complainants-Appellees.
    No. 48403.
    Supreme Court of Mississippi.
    Dec. 8, 1975.

      Armstrong & Hoffman, John T. Armstrong, Jr., Hazlehurst, for defendants-appellants.
    Goldman & Goldman, Meridian, for complainants-appellees.
    Before RODGERS, PATTERSON and SUGG, JJ.
   PATTERSON, Justice.

In 1973 Paul Broadhead and others filed this suit against Sun and Placid Oil Companies to confirm a mineral lease in lands situated in Clarke County. The chancery court held Broadhead’s lease to be valid and from this decree Sun and Placid Oil Companies appeal. We reverse.

In 1946 S. B. Kirkland secured a one-half mineral interest in a 7.47-acre tract in Clarke County described as:

Beginning at the Northwest corner of the SW 14 of NW 14 of Section 32, rather ship 3 North, Range 16 East, and running thence due East a distance of 764 feet to the West side of the Old Quit-man and Energy Highway, thence South 30 degrees 38 minutes West a distance of 624 feet to a stake on the West side of the Old Quitman and Energy Highway, thence due West a distance of 425 feet to the West boundary line of said Section 32, Township 3 North, Range 16 East thence due North a distance of 535 feet to the point of beginning, containing 7.47 acres, more or less. (Underscoring added.)

Kirkland died in 1953 devising the mineral interest to his wife, daughter and son. In 1962 the devisees executed an oil, gas, and mineral lease to Sun Oil Company on 1860.50 acres of land. The minerals (1/2 of 7.47 acres) in question were intended to be included in this transaction. However, the lease description erroneously designated the place of beginning as “the NW Cor. of SW of NW 14 of Section 32,” rather than “the Northwest Corner of the SW J4 of SW of Section 32.” (Underscoring added.) The remaining calls of the conveyance were the same as those in the deed to Kirkland. The Sun lease concluded with: “And, in addition, any and all land and rights and interest in land owned or claimed by Lessor and adjacent or contiguous to the land above described.”

Thereafter on February 16, 1967, the same lessors to the Sun lease executed a mineral lease to Broadhead to their interest in the SW % of the SW J4 °f Section 32. On February 17, 1967, Broadhead secured a mineral lease from Margaret E. Lauer, who owned the other one-half mineral interest in the 7.47-acre tract, describing it as:

Township 3 North, Range 16 East. Section 32: SW 4 of SW 14 A net 3.75 mineral acres.

All mineral interests in the SW 4 of the SW 54 °f Section 32 were pooled or integrated on May 19, 1971, and the unit has been in production since December of that year. Sun Oil has made the royalty payments to the Kirkland lessors accruing under their interest in the 7.47-acre tract.

Broadhead claims that because of the mistake in the description in the Sun Oil lease, “Beginning at NW corner of the SW 4 of the NW 4” instead of “Beginning at the NW corner of the SW 4 °f the SW 4,” he had no notice of the lease and is therefore an innocent purchaser for value. Sun and Placid contend that Broadhead had actual and constructive notice that the Sun Oil lease was intended to and did cover and include the one-half mineral interest of the Kirkland devisees.

The testimony establishes the title of the Kirklands to the mineral acreage in question. It also discloses that they owned no interest in the SW 4 of the NW 4 of Section 32. It reveals that the Quitman and Energy Highway, a monument in the recitals in the deed to Kirkland, as well as in the Kirkland devisees’ lease to Sun, traverses the SW 4 of the SW 4 °f Section 32, but does not touch the SW 4 of the NW 4 °f sai<l section. All prior deeds covering the 7.47-acre tract in the SW 4 °f the SW 4 °f Section 32 were placed in evidence.

Frank A. McLendon, the husband of one of the Kirkland heirs, has managed the leasing of their lands for many years. He was acting in this capacity at the time of the 1962 Sun lease and the 1967 Broadhead lease. The negotiations for the later lease were between him and Broadhead, both of whom had considerable knowledge and experience in mineral transactions.

Broadhead testified that he ascertained from an oil and gas map that the Kirkland and Lauer interests, both under the same tract, were open. He “looked at the actual description of these different tracts to check and see that they were not leased, and I found Mrs. Lauer’s interest not to be leased, and also the interest of the Kirk-lands not to be leased, and I called Mrs. Lauer, who lives in New Orleans, and purchased her interest under this tract and came down and talked with Mr. Mc-Lendon, who represented the Kirkland interest, about purchasing their interest under this tract. ”

His testimony concerning his negotiations with McLendon was, “. . . I spoke with Mr. McLendon about this particular tract and he asked me if the interest was leased and I told him, no, I had checked the records and it was not leased. He said that they had sold leases on, I don’t know how many parcels but an awful lot of parcels in the county and he didn’t keep a record of them and that he didn’t guarantee any of the titles to anything they leased, and I told him that this lease, as far as the records were concerned, was open, so he and — he and I disagree at this point as to what happened, but he came with me over to the Chancery Clerk’s office and we both looked at this tract briefly to check and be sure there was not a lease on it, and after satisfying himself and myself both that basically without going to a lot of — on the surface it looked like it wasn’t leased, and, so, he entered into a lease with me.” He testified that in checking the title to the Kirkland interest he only inspected the sectional index, but stated that he examined the deed where Mrs. Lauer acquired her one-half mineral interest in the tract. He was emphatic in denying knowledge of the Sun lease, stating, “I never heard of that lease.”

McLendon’s testimony relating to his discussion with Broadhead was, - “. . . when he said that township and range, then I said to him, well, now, Paul, I’ll tell you, said, isn’t that already leased. I said, it was our intention to have leased that to Sun Oil Company because it was in the, oh, say nine hundred or thousand acres of land, minerals there, and so I told him, I said, now, it was our intention to have leased that to Sun Oil Company, and so he replied and said, Well, evidently they passed over that, you see, and I said, Paul, is it clear? and he said, it’s clear. Well, I said, if you have a proposition to make, we will be glad to talk with you because we are in business to do business, you see.” He further stated that the tract was known as “Hamburg Tract” and was intended to be in the lease: “We included everything we had in that location.”

The chancellor found that McLendon informed Broadhead that the Kirklands had intended to lease Sun their interest in Section 32. He reasoned, however, that it would be incorrect to hold that Sun obtained the lease because of the error in the description. He concluded that Broadhead had neither actual nor constructive notice of the Sun lease and therefore'the lease he obtained was valid.

The decisive issue is whether Broadhead had such notice as would require a reasonably prudent person to examine the land records to determine the status of the title. If there were such notice, he, of course, is charged with knowledge of all matters the record would have revealed concerning his lessor’s title. On the other hand, if the notice was not sufficient to require an investigation of the land records, then he is an innocent purchaser for value without notice, entitled to have his lease confirmed.

An innocent purchaser for value has been defined as “one who, by an honest contract or agreement, purchases property or acquires an interest therein, without knowledge, or means of knowledge sufficient to charge him in law with knowledge, of any infirmity in the title of the seller.” Black’s Law Dictionary (Rev. 4th Ed. 1968).

In Smalley v. Rogers, 232 Miss. 705, 100 So.2d 118 (1958), we stated:

“Who deemed bona fide purchaser. In order to constitute one a bona fide purchaser within the rule he must have parted with value and he must have taken without notice.
“Sufficiency of notice. The notice required to deprive a purchaser or mortgagee of the status of a bona fide purchaser and to make an instrument reformable as against him may be actual or constructive. So, it has been held that, under the particular facts and circumstances, a party is not an innocent purchaser if he had notice of a prior conveyance, or if he knew of the mistake or of the other’s claim before he paid the purchase price; neither is he, if he was conscious of having the means of such knowledge and did not use them as an ordinarily prudent and diligent person would have done, or if there were circumstances sufficient to put him on inquiry. If there were circumstances which, in the exercise of common reason and prudence, ought to put him on particular inquiry, he will be presumed to have made that inquiry, and will be charged with notice of every fact which that inquiry would have given him. A purchaser or mortgagee is charged with knowledge of the facts disclosed in recorded instruments affecting the premises. * * *” (232 Miss. at 712, 100 So.2d at 120-21)

Also, we stated in Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771 (1946):

. . . Where a purchaser has knowledge of circumstances, such as would put a prudent person acting in good faith on inquiry, he is chargeable with actual notice of the facts the inquiry would have disclosed. (200 Miss. at 94, 25 So.2d at 775)

The chancellor found McLendon “indicated to Mr. Broadhead something to the effect that all of his interest in the southwest of the southwest, or rather in Section 32, was supposed to have been leased to Sun Oil.” This indication could only have come from the testimony of McLendon who stated unequivocally it was the Kirk-lands’ intention to lease everything they had in that location to Sun.

This notice was sufficient to require Broadhead, as a reasonable person, to inspect the Sun lease, which was of record, to determine its effect upon the title of the minerals he sought to lease. Had this been done, he could not have escaped observing that the Sun lease contained recitals designating the Quitman/Energy Road as the eastern boundary of the tract. This physical monument is common to the Sun lease of 1962 and the Lauer deed which he examined prior to obtaining the Lauer lease in 1967. These recitals spell out the exact distance in feet from the western boundary of the parcel to the road, as well as the direction southward in degrees along the road. It seems logical, due to the improbability of there being identical distances and courses upon other tracts, that this would have alerted anyone reasonably familiar with land records of the great probability of there being a mistake in the description, compelling further investigation.

Further examination would have shown not only that the Quitman/Energy Road does not traverse the SW 14 of the NW Ya, but also that S. B. Kirkland, the lessors’ progenitor in title, owned minerals only in the SW Ya of the SW Ya oí Section 32 and none in the NW Ya of such section, again clearly portraying the likelihood of there being a mistake in the Sun lease.

We are of the opinion that total reliance upon the sectional index to maintain the status of an innocent purchaser in the face of direct communication that the lessors intended to lease the property to another, and the avoidance of the general index which would have led to the true status of the title, was not reasonable under the present circumstances.

We determine that Broadhead had actual notice to require an examination of the public deed records and since he neglected to do so, he is charged with what they would have revealed, a mistake in the description of Sun’s lease. We decide the lower court correctly resolved the facts, but erred in its legal conclusion that Broadhead was an innocent purchaser for value. He was not and his lease should not have been confirmed.

Reversed and rendered.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    LOUIS DREYFUS CORPORATION and Continental National American Insurance v. DEPENDENTS OF Arthur UPSHAW, Deceased.
    No. 48325.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    Rehearing Denied Oct. 6, 1975.
    Before RODGERS, P. J., and SUGG and BROOM, JJ.
    Greaves, Terry & Hunter, Gulfport, for appellant.
    Stanford Young, Martha G. Love, Way-nesboro, for appellee.
   Affirmed.


author: INZER, Justice. ROBERTSON, Justice:

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. S. B. GRESHAM and John C. Dunlap et al.
    No. 48640.
    Supreme Court of Mississippi.
    Feb. 24, 1975.
    Rehearing Granted and Appeal Reinstated July 21, 1975.
    Dwight N. Ball, Oxford, for appellant.
    Fant, Crutcher, Moore & Spencer, Holly Springs, for appellees.
   INZER, Justice.

ON MOTION

On January 23, 1975, appellees filed a motion to docket and dismiss the appeal of the appellant, Mississippi State Highway Commission, from a judgment rendered in a Special Court of Eminent Domain convened in vacation in the Circuit Court of Marshall County. In due time, appellant answered the motion resisting the dismissal of its appeal. The judgment appealed from was rendered on June 13, 1974, and the court adjourned on the same day without entering any order for an extension of time to file a motion for a new trial.

On June 19, 1974, appellant mailed notice to the court reporter at his post office address which reads as follows:

Please be advised that the Mississippi State Highway Department is appealing the above captioned case to the Mississippi Supreme Court. We request that you prepare and transcribe the entire record as taken for the purpose of our appeal to the Mississippi Supreme Court. Please advise immediately if there is anything else that we need to do in order to accomplish this appeal. Thank you.

On June 20, 1974, the court reporter acknowledged receipt of the notice to transcribe the notes and informed the appellant that upon receipt of notice from the clerk that the appeal has been perfected by filing a bond for costs the notes would be transcribed in the time required by law. Apparently, no further correspondence was had between appellant and the court reporter. No copy of the notice given to the court reporter has been filed with the clerk.

On July 1, 1974, the appellant filed a motion for a new trial in the eminent domain court. Appellees filed a motion to strike this motion for the reason that it was not timely filed. On December 30, 1974, an order was entered by the court denying the motion because it was not timely filed.

On January 2, 1975, a notice of appeal was filed with the circuit clerk by the appellant, hence this motion to docket and dismiss the appeal for the reason that the appeal was not perfected within the forty-five day limitation set forth in Section 11-51-5, Mississippi Code 1972 Annotated.

Appellant, in its original answer, conceded that the proceedings subsequent to June 20, 1974, did not stay the time for perfecting the appeal, but contended that when it gave notice to the court reporter as provided in Section 11-27-29, Mississippi Code 1972 Annotated, its appeal was perfected and it was not required to do anything further.

However, in a supplemental answer, appellant changes its position and asserts that its motion for a new trial did stay the time for perfecting its appeal and the trial court was in error in holding that its motion for a new trial was not timely filed. Consequently, appellant contends that its appeal was perfected when it gave notice of appeal on January 2, 1975. Under these circumstances it is difficult to understand which proposition appellant is relying upon, but we will consider whether appellant perfected its appeal under either of these propositions.

The question of whether the motion for a new trial was timely filed was settled in Mississippi State Highway Commission v. Taylor, 293 So.2d 9 (Miss.1974), wherein we stated:

Eminent domain proceedings now under Mississippi Code Annotated section 11-27-1 (1972) et seq., may be in term time or, as in the instant case, in vacation. Of course, trial in vacation does present the practical problem of how counsel may prepare a motion for a new trial [which ordinarily, as held in Boydstun v. Presley, 244 Miss. 390, 141 So.2d 561 (1962), must be filed before the court term adjourns], or a bill of exceptions, and tender such during the trial which, as in this case, often lasts only a day. Absent any alleviating section dealing with the time logistics in the recently enacted eminent domain chapter, the situation is somewhat anomalous. Bills of exceptions and motions for a new trial may by agreement of court and counsel be filed subsequent to the term or date of trial in a special court, provided such consent is made a matter of record. Williams v. Ramsey, 52 Miss. 851 (1875). See also May v. Layton, 213 Miss. 129, 55 So.2d 460 (1951), where an additional day was allowed within which to file a bill of exceptions where the delay was not occasioned by any default by a party litigant.
Following the rationale of Williams, supra, and May, supra, where circumstances do not permit preparing and tendering to the judge a motion for a new trial, and/or a bill of exceptions during a trial or term, it is permissible for counsel to obtain an order signed by the judge taking such matters under advisement and continuing the cause for a reasonable time in which counsel may prepare, tender and file such post trial items. 293 So.2d at 11, 12).

It is clear from the foregoing statement that the motion for a new trial in this case was not timely filed, and it did not stay the time for perfecting the appeal. The eminent domain court adjourned without an order being entered granting appellant additional time to file a motion for a new trial. The court was without jurisdiction to entertain the motion filed after adjournment and the trial court was imminently correct in so holding.

We hold that the motion for new trial was not timely filed and did not stay the time for appellant to perfect its appeal.

As to appellant’s contention that its appeal was perfected when it gave notice to the court reporter, we refer to the pertinent part of Section 11-27-29, supra, which reads as follows:

Every party shall have the right to appeal directly to the supreme court from the judgment entered in the special court of eminent domain, whether tried in county court or circuit court, by giving notice within ten (10) days from the date of the judgment or final order entered by the court to the court reporter to transcribe the record as taken and by posting bond in the penal sum of three hundred dollars ($300.00), except that no bond shall be required of the state of Mississippi or any political subdivision thereof. Such bond shall be conditioned to pay all costs that may be adjudged against him, and said notice to the court reporter shall be given and the bond shall be posted as is otherwise required by law for appeals to the supreme court. (Emphasis added).

In answer to this contention appellees argue that this notice to the court reporter did not perfect the appeal, but only preserved the right of the appellant to appeal. It is contended that in order to perfect that appeal the appellant was required to file a petition in accordance with Section 11-51-15, Mississippi Code 1972 Annotated, or to file with the clerk of this Court the record within forty-five days as required by Section 11-51-5, supra. Appellee also points out that four return days had passed since appellant contends that its appeal was perfected. However, appellant has made no effort to bring up a record in this cause and consequently the appeal must be dismissed in accordance with our decision in Harris v. Sykes, 207 So.2d 344 (Miss.1968).

It is obvious that Section 11-27-29, supra, is not written in clear and unambiguous language. However, it is clear from the statute that when either party desires to appeal from a judgment of an eminent domain court and desires a copy of the notes of the court reporter, he must give notice to the court reporter within ten days from the date of the final judgment. It is also clear that this notice must be given in the manner as otherwise required by law for appeals to this Court. This means that the notice must be given in accordance with the provisions of Section 9-13-33, Mississippi Code 1972 Annotated. The pertinent part of this section reads as follows :

In all cases in which the trial is noted by the official court reporter, any person desiring to appeal the case shall notify the court reporter in writing within ten (10) days after adjournment of court of the fact that a copy of the notes is desired. The notice must be handed to the court reporter personally or mailed to him at his usual place of abode. In either case the attorney making the request shall file with the clerk of the court a copy of the notice with a statement of how the notice was served, and a copy thereof shall in like manner be served upon appellee’s attorney, and the said notice shall designate the portions of the record, proceedings, testimony and evidence to be contained in the record of appeal. (Emphasis added).

Appellant complied with the requirement relative to mailing to the court reporter at his usual place of abode a written notice that a copy of the notes was desired. However, he failed to comply with the requirement that a copy of the notice be filed with the clerk of the court stating how the notice was served and he also failed to serve a copy upon the appellees’ attorney. Under the decisions of this Court, it was not necessary that a copy of the notice be filed with the clerk within ten days. The notice was so worded that had a copy of it been filed with the clerk of the court within the forty-five days allowed by Section 11-51-5, supra, it would have amounted to notice of appeal. Mississippi State Highway Comm’n v. Brown, 250 Miss. 773, 162 So.2d 508 (1964).

Appellant could also have perfected its appeal by filing a petition for appeal with the clerk of the court within forty-five days or by filing the record in this Court within forty-five days. Oswalt v. Austin, 192 Miss. 653, 6 So.2d 924 (1942). Having failed to meet any of the above requirements, we are constrained to hold that appellant did not perfect its appeal within the time allowed by law and must be dismissed. Furthermore, although four return days have now passed since appellant contends its appeal was perfected on June 20, 1974, no effort has been made to bring up the record. This, too, would be sufficient grounds to dismiss the appeal in accordance with the provisions of Section 11-3-13, Mississippi Code 1972 Annotated, and the decisions of this Court construing that section.

We deem it appropriate to point out that if it was the intention of the legislature by the provisions of Section 11-27-29, supra, to limit the time of appeal from a final judgment of an eminent domain court to ten days, the statute as written does not accomplish this purpose. If such is the desire' of the legislature, we suggest an amendment to the statute clearly setting out the time and the method of appeal from such judgment.

For the reasons stated, we are of the opinion that the appeal in this case must be dismissed.

Appeal dismissed.

All Justices concur, except SMITH, J., who took no part.

ROBERTSON, Justice:

ON PETITION FOR REHEARING

The Mississippi State Highway Commission has filed a Petition for Rehearing to our decision sustaining the appellees’ Motion to Docket and Dismiss the Commission’s appeal. Under our Rule 14, we called on the Appellees to reply, and ap-pellees have timely filed their answer and brief in support thereof.

Although the Commission did attach a copy of its Notice to the Court Reporter to transcribe his notes to its Answer to the Motion to Docket and Dismiss, it was not until the Commission filed its Petition for Rehearing that it mentioned the fact that a copy had been filed with the circuit clerk. Upon reexamining the Notice, we do find this notation typed thereon:

“cc: Edwin Callicut”, and this stamped thereon:
“FILED
EDWIN CALLICUTT, JR.
Circuit Clerk
by /s/ E.C. D.C.
Jun 24 1974”

Even though the notice to the court reporter does not contain the certificate required by Section 9-13-33, Mississippi Code 1972 Annotated, of how the notice was served on the clerk, nor does it show a copy of the notice served upon appellees’ attorney, we do feel that the appellant has complied with our opinion sustaining the motion to docket and dismiss when we said:

“The notice was so worded that had a copy of it been filed with the clerk of the court within the forty-five days allowed by Section 11-51-5, supra, it would have amounted to notice of appeal.”

We, therefore, grant the petition for rehearing and reinstate the appeal.

On February 18, 1975, the appellant filed a petition for writ of certiorari, praying that a writ of certiorari be directed to the court reporter “requiring him to certify the record and to send up all the proper proceedings in this cause.” In view of our sustaining the motion to docket and dismiss, we denied the petition for writ of cer-tiorari. Since we are granting the Petition for Rehearing and reinstating the appeal, we feel that it would be proper to grant a writ of certiorari, not directed to the court reporter but to the circuit clerk because it is the clerk’s duty to prepare the record, except for the transcript of the court reporter’s notes, which writ will require the circuit clerk to prepare the record and send up to this Court as soon as possible.

Petition for rehearing granted and appeal reinstated.

This petition for rehearing was considered by a conference of the Judges En Banc.

All Justices concur, except SMITH, J., who took no part.


text:
    Carl PEARSON v. STATE of Mississippi.
    No. 48793.
    Supreme Court of Mississippi.
    Dec. 15, 1975.
    W. C. Trotter, III, Belzoni, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


author: PATTERSON, Justice:

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. ROB HOMES, INC. Ruby PICARD v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 48373.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Watkins & Eager, Velia Ann Mayer, Jackson, for U. S. F. & G. Co.
    Gillespie & Lenoir Gulfport, for Rob Homes and Picard.
    Before PATTERSON, INZER and WALKER, JJ.
   PATTERSON, Justice:

Ms. Ruby Picard and Rob Homes, Inc. sued the United States Fidelity & Guaranty Company for damages in the Circuit Court of the Second Judicial District of Harrison County. A jury verdict denied Ms. Picard damages and she appeals. A verdict of $71,912.50 was made in favor of Rob Homes, Inc., against United States Fidelity & Guaranty Company from which it appeals. We affirm.

Since 1941 Ms. Picard (hereinafter Pi-card) had been the proprietor of an apartment complex situated in Biloxi, Mississippi. In early 1969 she entered into discussions with Ray Gollott (hereinafter Gol-lott) concerning the purchase of this property by him, and to this end an oral agreement of purchase had been made. In August 1969 Hurricane Camille destroyed the apartment building on the property, engendering further discussion between Picard and Gollott relating to their agreement of purchase and sale. Both were desirous of constructing new apartments so that the sale by Picard could be consummated. However, Gollott was unable to obtain a Small Business Administration loan because he did not have title to the property before Camille. Picard was able to and did obtain a Small Business Administration loan to build a 12-unit apartment complex on the site. She agreed, upon completion of the complex, to sell the property and building to Gollott and a contract for such sale was executed in December 1970.

Picard did not take an active part in the construction of the apartment building, leaving this phase of the transaction to Gollott. In January 1971 Gollott executed a contract with Rob Homes for the construction of an apartment building to be completed by July 30, 1971, for $87,000.

Construction was begun and Picard obtained a loan of $70,000 from the Hancock Bank for interim financing of the project. The building was not completed on July 30, 1971, necessitating an addendum to the contract in February 1972, with additional time granted to April 17, 1972, for completion. When this additional time had passed, Rob Homes had completed 85% of the building but discontinued construction work in May 1972.

In 1971 when Picard obtained the loan for interim financing of the apartment project, she was advised to obtain insurance upon the property and thereafter a builder’s risk policy was obtained with Rob Homes being named as the insured. The policy was issued by the Mississippi Insurance Underwriters Association with United States Fidelity & Guaranty Company being the service insurer. In February 1972 Gol-lott endeavored to have Picard designated as an insured under the policy through the Watson-Lyons Insurance Agency. The agency forwarded this request to Mississippi Insurance Underwriters Association, but the request was denied because the application did not specify the interest of Picard in the property. She was not thereafter named as an insured since the agency, for some reason, notified the underwriters association to disregard the request it had made for Picard to be named as an insured.

During the course of construction Picard paid Rob Homes $59,499.18 interim payments as the work progressed. The apartment complex was destroyed by fire on June 26, 1972. At that time Rob Homes had completed 85% of the structure, but had abandoned the project. United States Fidelity & Guaranty Company (hereinafter U.S.F. & G.) was brought into this litigation since it had issued the builder’s risk insurance policy to Rob Homes.

After Rob Homes ceased work on the apartment, Gollott endeavored its completion. The building was 95% finished at the time of the fire. Thereafter, U.S.F. & G. was advised of the loss and it authorized the General Adjustment Bureau to investigate the fire claim and to report the resultant damages. General Adjustment Bureau investigated and advised U.S.F. & G. that the fire damages approximated $71,962.50.

Thereafter, an agent of the General Adjustment Bureau submitted a proof of loss form to be signed by Rob Homes to establish its claim of $71,912.50. Rob Homes refused to sign the proof of loss form until it was granted a full release from liability under its construction contract with Gol-lott. The release was obtained from Pi-card and Gollott and Rob Homes signed the proof of loss form. U.S.F. & G. would not accept the proof of loss, contending that Picard was not a named insured in the policy and that the only loss incurred by Rob Homes, if anything, was $14,499.18, the difference between the contract price, the per cent of completion of the structure, and the amount it had been previously paid.

The real issue presented is whether the liability of U.S.F. & G. attaches at the time of the fire or whether it is subject to diminution by subsequent agreement of Pi-card and Gollott to release Rob Homes from further liability under the construction contract.

We are of the opinion that liability attached as of the date of the fire loss. Rob Homes’ contract to construct the apartment was for a stipulated price and the fact that the nearly-completed apartment was destroyed by fire during the construction did not relieve it of its obligations under the contract absent words to that effect in the agreement. In United States Fidelity & Guaranty Co. v. Parsons, 147 Miss. 335, 112 So. 469 (1927), we held:

[T]he general rule is that where a house is destroyed by fire, and the contractor having agreed to furnish labor and material and construct a completed house for the owner, that he takes the risk of the incompleted house being destroyed by fire, unless he protects himself by expressly contracting that he shall not be held liable for an act of God, or other untoward circumstance, against which he is not willing to be bound.
The common-law rule is that where the duty is imposed on a party for performance, his nonperformance shall be excused if it be rendered by an act of God, but where by his contract the party engages to do an act, it is deemed to be his own folly and fault that he does not expressly provide against such contingencies and exempt himself in certain events. In the instance of an absolute and general contract, the performance is not excused by an inevitable incident or other contingency . . . Destruction by fire would excuse the nonperformance of a duty created by law, but would not excuse a breach of that duty created by contract. The party must contract against such contingencies, or abide and suffer the loss entailed by failure to so contract as to relieve himself from liability.

(147 Miss. at 354-55, 112 So. at 472).

We ascertain from the contract and the above rule of law that Rob Homes’ liability to Gollott and Picard was to furnish them a completed apartment building.

The appellant U.S.F. & G. contends, however, that the release of Rob Homes from this liability by Gollot and Picard had the effect of diminishing its liability under the builder’s risk policy. In support of this position it cites the indemnity case of Tauriello v. Aetna Ins. Co., 14 N.J.Super. 530, 82 A.2d 226 (1951), wherein the insurance company issued a standard fire policy covering certain premises in Newark, New Jersey, in the amount of $10,000. One Crescenzi was the insured prior to his death, but thereafter title vested in the plaintiffs and the policy was endorsed accordingly. Prior to the death of Crescenzi the State had contracted to purchase the property from him for the sum of $30,500. Subsequent to the agreement of sale the building on the property was destroyed by fire, but despite this fact the property was conveyed to the State without decrease in the agreed purchase price prior to the fire. The New Jersey Court was of the opinion that the defendant insurance company was entitled to judgment. It held:

The general rule is that a contract for insurance against fire is ordinarily one of indemnity under which the insured is entitled to receive indemnity or to be reimbursed for any loss that he may have sustained and cannot recover if he has sustained no loss. See 45 C.J.S., Insurance, § 915, page 1009. In Draper v. Delaware State Grange Mutual Fire Insurance Co., 5 Boyce 143, 28 Del. 143, 91 A. 206, it was pointed out that a fire insurance policy is a contract not to insure the property against fire but to insure the owner against loss by fire, and that the insurance company can be called upon when, and only when, the insured has sustained a loss which under the terms of the policy calls for indemnification.

(82 A.2d at 227-8).

Numerous cases from other jurisdictions are cited to the same effect. We note, however, that Tauriello, supra, has been severely criticized in Wolf v. Home Ins. Co., 100 N.J.Super. 27, 241 A.2d 28 (1968), wherein another superior court was of the opinion that Tauriello would have been better decided had the court determined just what interest of the insured was protected by the policy in force at the time of the loss rather than considering the insurer’s liability by way of an indemnity for its loss. We are of the opinion that the argument advanced by the appellant favoring the indemnity cases is not applicable to the present facts.

The insurable interest of Rob Homes in the building under construction and the liability of U.S.F. & G. to it, in our opinion, vested at the date of the fire because at that time Rob Homes was bound by its contract to construct the building for $87,000 and was not, absent apt words in the contract, entitled to any further payments until the building was completed. Its liability remained unimpaired by the fire loss.

In Milwaukee Mechanics Ins. Co. v. Maples, 37 Ala.App. 74, 66 So.2d 159 (1953), the insured gave a 90-day option to Engel, an agent of Sears, Roebuck & Company, to purchase property for a price of $33,000. The agent gave notice on May 23, 1949, that he would exercise the option. On June 14, 1949, the building was damaged by fire. The parties to the option contract, the insured and Sears, Roebuck & Company, agreed to complete the sale on the terms that the insured reduce the purchase price by $1000 and that Sears, Roebuck would assign to the insured any rights that it might have had to the fire insurance proceeds. The transaction was completed in accord with this agreement and thereafter the Court of Appeals of Alabama rejected the insurance company’s contention that the insured had suffered no financial loss other than the $1000 reduction in purchase price. In its opinion the Court stated:

At the time the policy was written and at the time of the loss, the appellee, as between appellee and appellant, insurance company, was, in law, the owner of the full insurable interest. The appellant’s contract was to insure “to the extent of the actual cash value of the property at the time of the loss.” The fact that the appellee later realized by sale to within $1,000 the amount she has agreed to sell the building for is no defense available to the appellant, who was an entire stranger to the dealings between appellee and the vendee. Appellant’s liability must, under the contract, be measured by the fire damage at the time of the loss and not by fortuitous circumstances later befalling the insured and to which appellant was in no wise privy.

37 Ala.App. at 85, 66 So.2d at 167.

See also National Fire Ins. Co. of Hartford, Conn. v. Kinney, 224 Ala. 586, 141 So. 350 (1932), as well as Board of Trustees et al. v. Cream City Mutual Ins. Co., 255 Minn. 347, 96 N.W.2d 690 (1959). We conclude that U.S.F. & G.’s liability must, under its contract, be measured by the fire damage at the time of the loss and not by fortuitous circumstances later befalling the insured in which the appellant was in no wise a part.

The other assignments of error by U.S. F. & G. are included within the above premise which we need not further discuss.

There appearing of record a stipulation between Picard, Rob Homes, the Hancock Bank and U.S.F. & G. that in the event the plaintiffs, or either of them, recover a verdict, that the monies therefrom shall be disbursed to the plaintiffs, or either of them, and the bank as their interest might appear, we need proceed no further than to affirm the judgment of the court below for disbursement in accord with the parties’ stipulation.

Affirmed.

RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.

GILLESPIE, C. J., took no part.


author: HARRIS, Judge.

text:
    John C. MULLINS, alias v. STATE.
    5 Div. 204.
    Court of Criminal Appeals of Alabama.
    March 4, 1975.
    Rehearing Denied April 1, 1975.
    Walker, Hill, Gullage, Adams & Um-bach, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and J. Donald Reynolds, Sp. Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was indicted, tried and convicted for selling marihuana. The jury declined to assess a fine and the trial court sentenced appellant to fifteen (15) years in the penitentiary. At arraignment appellant, in the presence of retained lawyer, pleaded not guilty. This same lawyer represented appellant at trial and throughout all proceedings in the trial court and also represents him on appeal.

Before trial appellant filed a motion to be treated as a youthful offender under the provisions of Title 15, Section 266(1), Code of Alabama 1940, as last amended. The trial court summarily overruled and denied this motion without complying with the mandatory provisions of this law. Morgan v. State, 291 Ala. 764, 287 So.2d 914. On October 29, 1974, we remanded this case for compliance with the above code section.

The trial court immediately referred appellant’s application for treatment as a youthful offender to a probation officer to conduct an investigation and file his report. A hearing was had on November 19, 1974, and testimony was heard orally before the court.

Appellant testified at this hearing and said he was nineteen (19) years of age and was a junior at Auburn University and would be a senior the next quarter; that he was living with his parents and had not missed any time from his college work.

Four Auburn College professors testified in appellant’s behalf. They all testified that he was a boy of good character and had an excellent reputation. His attendance record was good and he was an intelligent student and had never demonstrated a discipline problem; that if he was given an opportunity he would definitely have a place in society and would be an honest and productive citizen; that to send a boy like appellant to the penitentiary would have a most detrimental effect upon his after life.

Both parents testified that appellant was a good student; that when he was in summer school he made the highest grades possible — three-point average out of a possible three points; that during one winter quarter he dropped to 2.83 out of a possible 3, but he changed one course and went back to a three-point average.

The reports of the two probation officers were introduced in evidence over appellant’s objections and are as follows:

“Court’s Exhibit No. 1
11-17-74
RS
ARREST RECORD OF JOHN C. MULLINS CC #504
W.M. - 19
D.O.B. 9-10-55 Sale of Marihuana
“Lee County Juvenile Court
Released to Parents “7-13-71 Sale and Possession of Heroin
on $10,000 Bond. Sale and Possession of LSD
Parents paid restitution of $78.00 8-3-71 Burglary of Vending Machines (John and another youth took approximately $16 from coin changer in basement of Samford Hall)
1 year probation 9-14-71 Declared Delinquent as result of the three charges listed above.
“Auburn Police Dept.
Arrests Prior to Conviction:
$36.50 Fine 2-27-73 Reckless Driving
21.50 3-15-73 Speeding
No billed Possession of Marijuana
Arrests Subsequent to Conviction:
Check
7 77 73 ■Fighting ■Disposition unknown
8-10-74 Speeding $21.50 fine
“/s/ Edward M. George
Edward M. George,
Parole and Probation Supervisor”
“STATE OF ALABAMA
BOARD OF PARDONS AND PAROLES
PAROLE AND PROBATION OFFICE
Opelika, Alabama
November 4, 1974
“Hon. L. J. Tyner
Judge, 37th Judicial Circuit,
Opelika, Alabama.
Re: John Clement Mullins
W.M. - 19 (DOB 9-10-55)
Lee County Circuit Court #504
Sale of Marijuana
“Dear Judge Tyner:
Reference is made to our conversation on 11-4-74 in which you requessted a records check on the above described individual.
Mullins first came to the attention of the Law Enforcement Authorities when as a Juvenile he was arrested by the Auburn Police Department on 7-13-71 for Possession and Sale of Heroin and Possession and Sale of LSD. Mullins was found guilty in Juvenile Court and was placed on one year probation on 9-13-71. The subject successfully completed his probation and was released from supervision on 9-16-72.
Mullins had the following Adult Criminal Charges:
Auburn Police 2-27-73 Reckless Driving $36.50
Dept. 3-15-73 Speeding 21.50
Possession of Marijuana No billed
7-27-73 Fighting No. disp. shown
8-10-74 Speeding $21.50
I hope the above information serves your purpose, and if I can be of any further help please don’t hesitate to ask.
Sincerely,
Jim V. Lord
Parole and Probation Supervisor II
Opelike, Alabama.
JVL/mn”

At the conclusion of the hearing the court decreed that “the defendant should not have been tried under the Youthful Offenders Act and was properly tried as an adult in this court, and that he should not be again tried under the Youthful Offenders Act.”

At this time we are not sure that we have a right to review the discretion vested in trial courts when applying the Youthful Offenders Act. Had we been sitting as a trial judge in this case, our decision might have been different. Even had we decided to try him as an adult we certainly would not have meted out a sentence of fifteen years in the penitentiary to a young man who seemed to have had a promising future in our mixed-up society.

We turn now to the merits of this case.

Robert M. Patterson who had been employed with the State Department of Public Safety for nine and a half years was the first witness for the state. He testified that he lived in Huntsville, Alabama, but for the past two years he was on special assignment as a State Narcotics Investigator. He was asked how he dressed and with whom he associated when he was doing undercover work and he said,

“I dress according to the people that I am working with, I dress similar to the people that I am trying to get in with, and I am trying to get in with, infiltrate, people who traffic in illegal drugs.”

He testified that for about fourteen (14) days from February, 1973, to the middle of April, 1973, he worked in the Auburn-Ope-lika area of Lee County with an informer named Jimmy Stanfield; that in order to throw people off guard, Stanfield would introduce him as a man Stanfield met while an inmate of Draper Prison.

He further testified that on the night of February 17, 1973, he was driving an unmarked state car on Magnolia Street in the direction of a place called Pasquales in Auburn, Alabama, with Stanfield as his passenger. They observed two boys walking away from Pasquales and Stanfield rolled the window down on the passenger’s side and shouted to the two boys to come over to the car. They walked to the side of the car where Stanfield was sitting but Patterson could not hear the conversation. It was a very cold night and Paterson invited them to get in the car. They got in the backseat of the car and Stanfield asked them if they knew where they could get some good pot. These boys turned out to be appellant, who was 17 years old at that time, and one Greg Glass, who was 15 years of age. Appellant and Glass started naming off different brands of marihuana that could be had and the price of each brand. They mentioned the names of Mexican, Columbian, Brazilian, and some domestic weed.

Patterson asked both appellant and Glass if they had the marihuana on them and they said no. He then asked them how long it would take them to get it and appellant said it would take about three (3) minutes. Patterson asked the price of the Mexican brand and Glass said $16.00. Patterson gave Glass $16.00 and both boys got out of the car and started walking in the direction of Pasquales. Both boys returned to the car in five minutes and got in the backseat. Appellant leaned over and placed a lid on the frontseat of the car saying, “Here it is.” Patterson picked up the package and examined it, looked at it, smelled it and placed it in his left front pocket.

Patterson further testified that he kept the marihuana in his pocket until he got back to his motel room where he placed it in an envelope and wrote the names “John and Greg” on the front of the envelope and kept it in the room with him until around noon the next day when he turned' the envelope over to Sergeant Elbert J. Gosdin, who came to his room in the Holiday Inn.

Sergeant Gosdin was also a State Trooper with the Department of Public Safety where he had been so employed for thirteen years but had been assigned to drug investigative work since 1971. He was stationed at Opelika. He testified that he received a white envelope from Sergeant Patterson at the Opelika Holiday Inn and on the outside of the envelope were the names of “John and Greg”; that he opened the envelope and observed the contents and thought it was marihuana. He put the contents of the white envelope into a larger manilla envelope and, “I wrote Greg and John, white males, Lee County, I put the date and I put a plastic bag containing brownish green vegetable matter on the front and then I put on the back, I wrote along the long seal of the envelope Sergeant E. J. Gosdin, P. O. Box 2368, Opelika, and down on the bottom I put my initials on the bottom seal and then I put tape over all of the writing with the exception of received E. F. G., 2/18/73, 12:30 P.M.”

This witness further testified that he put the manilla envelope, after it was sealed, in the trunk of his car and delivered it at a later time to Mr. Taylor Noggle at the Toxicology Office in Auburn, and that at the time he delivered it to Mr. Noggle it was in the same condition it was in when he placed it in the trunk of his car.

Mr. Taylor Noggle testified that he was a toxicologist with the Alabama Department of Toxicology and Criminal Investigation in Auburn. At this point counsel for appellant stipulated that Mr. Noggle was an expert with the Department.

This witness testified that on February 22, 1973, Sergeant E. J. Gosdin delivered to him “a sealed, State of Alabama, Department of Public Sáfety, manilla envelope which contained a clear plastic bag holding a green vegetable matter.” He further testified that when he opened the envelope he found it contained a greenish-brown vegetable matter.

Mr. Noggle made a chemical examination of the contents of the plastic bag and determined it to be marihuana. After making this determination he returned the marihuana to the clear plastic bag arid into the manilla envelope, which Sergeant Gos-din delivered it to him in, and kept it in his possession until the day of the trial. The proper predicate was laid for the introduction of the envelope and the contents in evidence. It was admitted over appellant’s objections.

At the conclusion of the state’s case, appellant made a motion to exclude the state’s evidence on several grounds: (1) that the state had failed to connect the defendant with the sale of marihuana, (2) the defendant received no consideration from the alleged sale, and (3) that the undercover agent entrapped the defendant into the commission of the offense. There was quite a colloquy between the court and appellant’s attorney concerning the defense of entrapment after which the court overruled the motion to exclude the state’s evidence.

The testimony adduced on behalf of appellant was to the effect that he did not even see Sergeant Patterson on the night of February 17, 1973, and, therefore, he did not participate in the sale of marihuana on that occasion, or any other occasion; that the first time he ever saw Patterson was at Police Headquarters on the night of May 1, 1973, when he was arrested. Appellant admitted that he saw Greg Glass at Pasquales on the night of the alleged sale of marihuana, but that Glass left the place with three girls and that appellant went to ride in his car with another boy. This boy supported his alibi that they rode around together by themselves and at no time was Greg Glass in the company of appellant; that when they got in appellant’s car they saw Greg Glass walking from Pasquales going to Haley Center to watch “The Alamo” on television.

Eight witnesses testified as to appellant’s good character and excellent reputation.

The conflicting evidence made and presented an issue for the jury to resolve and they resolved it against appellant. See Peppers v. State, 53 Ala.App. 695, 304 So. 2d 39.

A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Nabors v. State, 82 Ala. 8, 2 So. 357; Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

Appellant strenuously insists that the state’s evidence failed to connect appellant to the alleged sale of the marihuana. We do not agree. According to the testimony of Sergeant Patterson appellant delivered the marihuana to him personally after he gave $16.00 to Greg Glass while both Glass and appellant were in the backseat of the car he was driving.

The evidence as to the custody and possession of the envelope and its contents sufficiently established there was no missing link in the chain of identification. The identification and continuity of possession were sufficiently shown, affording ample assurance of the authenticity of the envelope and its contents and the analysis conducted by the Toxicologist. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

In Dennison, supra, the Supreme Court said:

“ * * * The preliminary proof identifying and describing the considered articles fully complied with the rule and under no sort of theory would the trial court have been warranted in refusing their admission. * * *”

The above is fully applicable to the instant case.

One of the grounds appellant moved to exclude the state’s evidence was that he was entrapped, saying, “I believe the State’s testimony itself shows entrapment, that is, the State through their own testimony have proved that they entrapped the defendant and therefore the evidence should be excluded on that also.”

The court charged the jury on the law of entrapment and appellant objected to the charge and reserved an exception even though he injected entrapment into the case himself.

On the law of entrapment, we take the following from Boswell v. State, 290 Ala. 349, 276 So.2d 592, at page 599:

“In Johnson v. State, 36 Ala.App. 634, 636, 61 So.2d 867, 869 (1952), our Court of Appeals stated:
“ ‘[Ejntrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the law, in his effort to secure evidence against such person, affords him an opportunity to commit the criminal act * * *.’
“There is no doubt that the course of conduct leading to the criminal activity began with the request by Owensby, the customs agent, to buy marijuana. The defendant sold the marijuana in response to this request. However, the agent’s conduct, merely affording defendant the opportunity to commit a criminal act, falls short of what is necessary to constitute entrapment. Johnson v. State, supra. See also Brewer v. State, 23 Ala. App. 100, 123 So. 86 (1929), in which officers induced defendant to sell them liquor, then prosecuted him for violating prohibition laws. No entrapment was found.
“In this case the entrapment issue was submitted to the jury with unusually full and fair instructions from the trial judge. The jury found no entrapment. We hold they could properly so find.”

Counsel for appellant in his closing argument to the jury said, “I want to point out to you, now one matter of scripture and that is this, I am reading Second Corinthians the Thirteenth Chapter.”

The state objected to counsel reading the Bible to the jury as it was not evidence in the case.

From the record:

“MR. WRIGHT: Your honor I hate to interrupt the argument, but I think that it is improper for Mr. Gullage to read from the scripture, here, that is not in evidence in this case and it has nothing whatsoever to do with this case. And I think it’s improper argument to read from the scripture.
“THE COURT: Well, Jesus Christ himself said, render unto God the things that are God’s and render unto Caesar the things that are Caesar’s. Now, I interpret that from the Bible to mean that when there are laws of the land a person is supposed to obey the laws of the land and render unto God the things that are God’s, But render unto Caesar, that is the Government, the things that the Government has ordered and ordained.
“MR. GULLAGE: Your Honor, of course, I take exception to your remarks but I can’t disagree with you.
“THE COURT: Well, do you disagree with Jesus Christ Himself, who said render unto God the things that are Gods, (sic) and render unto Caesar the things that are Caesar’s ?
“MR. GULLAGE: No, sir, I don’t disagree with it I just take exception to the remarks of the Court—
“THE COURT: Well, now, maybe you are not as busy as I am, I work Saturdays, and Sundays, and nights, and every other time, and don’t have a chance to go to Church, I’m down in my office ever (sic) Sunday—
“MR. GULLAGE: Your Honor, I’m not doubting what you say about that, I just except to the remarks by the Court to the jury.
“THE COURT: All right. Now, go ahead and read the bible to the jury, I’m a firm believer in Jesus Christ myself.”

Counsel for appellant had a right to read from the Bible in his argument to the jury. In Poole v. State, 292 Ala. 590, 298 So.2d 89, the Supreme Court held that criminal trials are adversary proceedings and argument of counsel should not be so restrictive as to prevent reference, by way of illustration, to historical facts and public characters, or to principles of divine law or biblical teachings.

The same principles were enunciated by the late Mr. Justice Simpson, while he was serving on the Court of Appeals, in the case of Kabase v. State, 31 Ala.App. 77, 12 So.2d 758.

In Dennison v. State, 17 Ala.App. 674, 88 So. 211, Presiding Judge Bricken wrote:

“The trial judge, as a natural consequence of his position and the many duties devolving upon him, is necessarily vested with much discretion in the conduct of the trial of causes, and, unless it clearly appears that there has been an abuse of this discretion, appellate courts will not interfere to control such discretion, but will presume that one occupying so important a position as that of circuit judge will accord to all litigants in his court the fair and impartial trial provided for in the Constitution of this state. That a trial judge wields a great influence upon the jury cannot be questioned, for it is their duty to follow his instructions as to the law. So, whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of another, or uses language which tends to bring an attorney into contempt before the jury, or uses any language or makes any intimation which tends to prejudice them, he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause. In the instant case we are not prepared to say that the alleged injurious language of the court addressed to appellant’s counsel was of the character to prejudice the attorney before the jury or to injuriously affect the substantial rights of the defendant. * * *

We do not believe the language used by the trial judge can be construed as casting any reflection upon counsel for appellant or demeaning him in any manner before the jury. The comment of the judge would probably have been best left unsaid but we do not believe appellant’s rights were prejudiced.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

Affirmed.

All the Judges concur.


author: PER CURIAM. JONES, Justice

text:
    In re John C. MULLINS v. STATE of Alabama. Ex parte John C. Mullins.
    SC 1239.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    Rehearing Denied Dec. 18, 1975.
    James T. Gullage, Opelika, for petitioner.
    William J. Baxley, Atty. Gen., and J. Donald Reynolds, Sp. Asst. Atty. Gen., for the State, respondent.
   PER CURIAM.

On preliminary examination, the petition for the writ of certiorari to the Court of Criminal Appeals, 56 Ala.App. -, 323 So.2d 109, was granted. Upon further consideration, we hold that the writ was improvidently granted and is due to be quashed.

Writ of certiorari quashed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, SHORES and EMBRY, JJ., concur.

FAULKNER and JONES, JJ., dissent.

ALMON, J., not sitting.

JONES, Justice

(dissenting):

I would grant the writ.

John C. Mullins was convicted of selling marihuana to an undercover policeman and sentenced to 15 years in the penitentiary. Prior to trial, Mullins’ motion to be treated as a youthful offender (he was 19 years of age) was denied without compliance with the provisions of the Youthful Offender Act. Accordingly, the Court of Criminal Appeals reversed and remanded the cause for compliance with the requirements of the Act. After the investigation and hearing, youthful offender status was again denied by the trial Court, and Mullins’ former conviction as an adult, upon further review by the Court of Criminal Appeals, was affirmed.

On preliminary consideration, we granted the writ of certiorari to the Court of Criminal Appeals on the limited issue of the propriety of the trial Judge’s response to the District Attorney’s objection to defense counsel’s remarks during summation to the jury.

During the trial, counsel for Mullins in his closing argument to the jury said: “I want to point out to you, now one matter of scripture and that is this. I am reading Second Corinthians the Thirteenth Chapter.”

The State objected to counsel’s reading the Bible to the jury on the ground that it was not evidence in the case. The following discourse transpired:

“MR. WRIGHT: Your honor I hate to interrupt the argument, but I think that it is improper for Mr. Gullage to read from the scripture, here, that is not in evidence in this case and it has nothing whatsoever to do with this case. And I think it’s improper argument to read from the scripture.
“THE COURT: Well, Jesus Christ himself said, render unto God the things that are God’s and render unto Caesar the things that are Caesar’s. Now, I interpret that from the Bible to mean that when there are laws of the land a person is supposed to obey the laws of the land and render unto God the things that are God’s, but render unto Caesar, that is the Government, the things that the Government has ordered and ordained.
“MR. GULLAGE: Your Honor, of course, I take exception to your remarks but I can’t disagree with you.
“THE COURT: Well, do you disagree with Jesus Christ Himself, who said render unto God the things that are Gods, (sic) and render unto Caesar the things that are Caesar’s?
“MR. GULLAGE: No, sir, I don’t disagree with it I just take exception to the remarks of the Court—
“THE COURT: Well, now, maybe you are not as busy as I am, I work Saturdays, and Sundays, and nights, and every other time, and don’t have a chance to go to Church, I’m down in my office ever (sic) Sunday—
“MR. GULLAGE: Your Honor, I’m not doubting what you say about that, I just except to the remarks by the Court to the jury.
“THE COURT: All right. Now, go ahead and read the bible to the jury, I’m a firm believer in Jesus Christ myself.”

Only one interpretation can be given to the trial Judge’s remarks, “Now, I interpret that from the Bible to mean that when there are laws of the land a person is supposed to obey the laws of the land and render unto God the things that are God’s, but render unto Caesar, that is the Government, the things that the Government has ordered and ordained.” This could only have the effect of urging the jury to render up defendant Mullins to the government for his due punishment. Rather than limiting his response to the ruling on the District Attorney’s objection, the trial Judge anticipated defense counsel’s argument and responded in the nature of a reply. This is clearly a violation of the admonition that the trial judge should not assume an adversary role in the trial of which he is presiding.

In the trial arena, a wide and distinct line separates advocacy- — the role assigned to trial counsel — from the functions of the presiding judge. It is the separation of these two roles that safeguards the fundamental fairness and impartiality mandated by the State and Federal Constitutions. To be sure, the myriad duties and responsibilities of the presiding judge necessarily vests in him much discretion in the conduct of the trial; but this discretion does not permit him to cross that line and in effect descend the bench and assume a role which the system in its wisdom has assigned to others. It is the sworn duty of the jury to follow the instruction of the trial judge, and thus his remarks in their presence must never be flavored with partiality as between the parties litigant. Moulton v. State, 199 Ala. 411, 74 So. 454 (1917); Holland v. State, 24 Ala.App. 199, 132 So. 601 (1931); Dennison v. State, 17 Ala. App. 674, 88 So. 211 (1921).

The opinion of the Court of Criminal Appeals, after correctly reviewing the law, concludes that the Judge s remarks were not intended as a reflection on defense counsel. The rule is not so limited and the error, in my opinion, here lies not in any reflections by the trial Court upon counsel, but in assuming an adversary role before the jury.

I do not interpret the denial of the writ by the majority as condoning the remarks of the trial Judge. Nor do I so interpret the opinion of the Court of Criminal Appeals. The majority simply feels that such remarks are not of such character as to constitute prejudicial error. I feel, however, that a disinterested trial judge is so fundamental to the constitutional guarantee of fair trial that this Court should not place a burden upon the defendant to demonstrate specificallly how such remarks prejudiced him. The possibility for prejudice is inherent whenever a presiding judge assumes an adversary posture, but specific proof of prejudice is always difficult in a jury trial. Because of the vital importance of conducting impartial criminal trials, I feel that prejudice should be assumed in this case.

FAULKNER, J., concurs.

      . It should be noted that the propriety of the trial Court’s ruling is not the issue here presented.


author: SIMMONS, Supernumerary Circuit Judge.

text:
    James E. HANES, alias v. STATE.
    3 Div. 364.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Clyde A. Smith, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent here and at nisi prius, was indicted in two counts: (1) Burglary of an uninhabited dwelling house and; (2) Grand larceny. He entered pleas of not guilty and not guilty by reason of insanity. Jury and general verdict of guilt. The court thereupon sentenced him to nine years imprisonment.

It appears from the record that considerable evidence was adduced in support of defendant’s plea of insanity. We briefly allude to some of the evidence; many details are omitted. Defendant at this time of trial was thirty-two years of age. He had his first brush with the law when he was seven years of age. He was taken from a foster home to another, and then to the juvenile court; then committed to the Boy’s Industrial Home in Birmingham when he was ten years of age. There he stayed until he was seventeen. He ran away from the home about twenty times. He broke into a house and was sent to Draper Prison. The record discloses a long series of crimes, in and out of prison, on felony charges. Twice he tried to commit suicide, and twice was committed to Bryce’s Hospital for mental treatment.

The record shows a history of mental instability. A state clinical psychologist, well qualified, testified at length about defendant’s mentality; that he knew right from wrong; that he could not always adhere to the right; that he has a psychopathic personality.

The trial court orally charged the jury on several aspects of insanity as a legal defense ; he gave several written charges, some requested by the State and others by defendant, which further elucidate the law of insanity.

The trial court in its oral charge further instructed the jury as follows:

“Now, ladies and gentlemen of the jury, under his (defendant’s) plea of insanity at the time of the commission of the alleged offense, in the event you should return a verdict of not guilty by reason of insanity, he won’t be sent back to Bryce’s, nor will he be sent to any other mental institution. He will be a free man.” (Emphasis ours).

The defendant duly excepted to the afore quoted observations of the court.

We think the court’s remarks as to the effects or results of a jury verdict acquitting defendant on the plea of insanity were of such prejudicial import as to support a reversal of the judgment and a remand of the cause. The effect of these comments was to influence the jury to find defendant guilty lest he go forth a free man to impose on society in criminal activities as he was wont to do, according to the evidence, during his juvenile life and adulthood.

Title IS, § 429, Recompiled Code, 1958, provides that the court may under certain conditions order this defendant taken into safe custody and his confinement in Alabama State hospital. The court did not inform the jury of this available procedure, but left the impression that the defendant would be left to go free and unfettered if the jury determined him not guilty by reason of insanity.

We hold that the court’s observation had, supra, an unfair and chilling impact, or was reasonably calculated to do so, on the jury’s assessment of the plea of insanity.

The judgment is reversed and the cause is remanded.

The forgoing opinion was prepared by Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Reversed and remanded.

All the Judges concur.


author: (s) Joe W. Sanders

text:
    STATE of Louisiana v. Donald C. THERIOT.
    No. 56558.
    Supreme Court of Louisiana.
    Aug. 21, 1975.
   ORDER

The foregoing motion and concurrence of District Attorney being considered,

It is ordered, that the indictment against Donald C. Theriot be quashed, and that the Writ of Certiorari and/or Review heretofore issued is dismissed as moot.

Order signed at New Orleans, Louisiana, this 21 day of August, 1975.

(s) Joe W. Sanders

JUSTICE, SUPREME COURT OF LOUISIANA


author: DIXON, Justice. SUMMERS, Justice

text:
    George H. WILKINSON v. Mary Betty Ann D. WILKINSON.
    No. 56456.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Dissenting Opinion Dec. 18, 1975.

      Davis A. Gueymard, Hynes & Gueymard, Baton Rouge, for defendant-applicant.
    Leon Gary, Jr., Ellison, Gary & Field, Baton Rouge, for plaintiff-respondent.
   DIXON, Justice.

On November 25, 1960, George Huber Wilkinson, then aged twenty-five, and Mary Betty Ann David, then aged sixteen, executed a prenuptial contract before a notary and two witnesses, in which the parties stipulated there would be no community of acquets and gains between them. Additionally, Betty Ann David surrendered any right to alimony should their impending marriage ever be dissolved.

On November 27, 1960, Miss David’s seventeenth birthday, the parties were wed. In 1966 Mr. Wilkinson sought a separation from his wife; his suit was abandoned because there was a reconciliation.

However, on November 16, 1973, Mr. Wilkinson instituted the present suit in the Family Court of East Baton Rouge Parish to obtain a divorce on the grounds of adultery. Mrs. Wilkinson, by way of recon-ventional demand, alleged the existence of a community of acquets and gains and requested a partition thereof. Mr. Wilkinson urged the November 25, 1960 marriage contract as a defense against the reconven-tional demand.

The Family Court decreed that the prenuptial contract was absolutely null, since Mrs. Wilkinson, who was a minor at the time it was executed, did not have her father’s consent to or assistance in its execution. The court, therefore, found that a community existed, and ordered it partitioned. Attorney’s fees for both parties and all costs were assessed against the community.

The court of appeal reversed. Wilkinson v. Wilkinson, 312 So.2d 107 (La.App. 1st Cir. 1975). The appellate court reasoned that, although C.C. 97 requires the consent of both father and mother for a minor to marry, C.C. 112 provided that a marriage cannot be annulled for the want of parental consent; therefore since the consent of the father was not necessary to the marriage, it was not necessary to the validity of the prenuptial contract. We granted certiorari to review the correctness of that decision. 314 So.2d 735 (La.1975).

The evidence before us shows that Miss David, along with her mother and her fiancee, Mr. Wilkinson, executed the marriage contract in question. However, her father, who had died before trial, although consenting to the marriage, had refused to sign or participate in the marriage contract, because he did not understand the agreement (despite the fact that both his wife and daughter asked him to sign).

Thus the question before us is whether a marriage contract, entered into by a sixteen year old unemancipated minor, without the assistance of her father, is valid. We hold that it is not.

Article 1785 of the Civil Code expresses the general incapacity of minors to contract. However, it enumerates certain exceptions to the general incapacity, one of which states, “His stipulations in a marriage contract, if made with the consent of those whose authority is in such case required by law, are also valid.”

The exception referred to is set out in article 2330 of the Civil Code, in that section of the Code dealing with the marriage contract:

Art. 2330. The minor, who is capable of contracting matrimony, may give his consent to any agreements which this contract is susceptible of; and the agreements entered into and the donations he has made by the same, are valid, provided that, if he be not emancipated, he has been assisted in the agreement by those persons whose consent is necessary to his marriage.

Article 2330 of the Civil Code has been part of our law in substantially the same form since the 1808 Civil Code. It was adopted from article 1398 of the Code Napoleon, which concluded “est necessaire pour la validité du mariage” (it is necessary for the validity of the marriage.)

In the French text of the Civil Code of 1808, however, the article concludes “est necessaire pour son manage” (is necessary for his marriage). In the French text of the Civil Code of 1825 the article concludes “est necessaire pour la validite du mariage” (is necessary for the validity of the marriage), to tract the identical language of its source, Article 1398 of the Code Napoleon. There is no substantial difference in the phrases, and we can only conclude that “necessary for his marriage” and “necessary for the validity of the marriage” are interchangeable phrases, meaning the same thing.

Article 97 of the Civil Code states:

The minor of either sex, who has attained the competent age to marry, must have received the consent of his father and mother or of the survivor of them; and if they are both dead, the consent of his tutor.
He must furnish proof of this consent to the officer to whom he applies for permission to marry.

Like article 2330, article 97 of the Code has been part of our law in substantially the same form since the 1808 Civil Code. Its source, article 148 of the Code Napoleon, provided:

The son who has not attained the full age of twenty-five years, the daughter who has not attained the full age of twenty-one years, cannot contract marriage without the consent of their father and mother; in case of disagreement, the consent of the father is sufficient. Up to this point, the law is clear. Articles 97 and 2330 of our Civil Code, taken from the counterparts in the Code Napoleon, would seem to require the consent of the mother and father to the minor’s marriage, and therefore the assistance of the mother and the father in the execution of the marriage contract.

However, confusion arises because of article 112 of the Civil Code, which states:

The marriage of minors, contracted without the consent of the father and mother, can not for that cause be annulled, if it is otherwise contracted with the formalities prescribed by law; but such want of consent shall be a good cause for the father and mother to disinherit their children thus married, if they think proper.

Thus, under this article, as interpreted by this Court in Delpit v. Young, 51 La. Ann. 923, 25 So. 547 (1899) and State v. Golden, 210 La. 347, 26 So.2d 837 (1946), if a minor manages to marry without his parents’ consent, the marriage, for that reason, cannot be annulled. However, because the minor has in that situation contracted a marriage without parental consent, the law gives the nonconsenting parent (s) the right to disinherit the child.

Article 112 of our Civil Code has no counterpart in the Code Napoleon. Indeed, under article 182 of the Code Napoleon, the marriage of a minor contracted without parental consent could be impeached by the nonconsenting parent. As explained by Planiol:

The future spouses require the consent of their parents as long as they have not attained their majority. In default of this necessary consent the contracted marriage will be annullable. (Art. 182) Planiol Civil Law Treatise, vol. 1, part 1, sections 1071-1072.

Because our redactors rejected the French view that the nonconsenting parent (s) could annul the minor’s marriage, the court of appeal concluded:

Since no consent from anyone other than the parties themselves was necessary for a valid marriage, there was no corresponding person under the law who would be required to assist in the prenuptial marriage agreement. This conclusion is further justified under the maxim noted by Planiol, ‘Habilis ad nup-tias, habilis ad pacta nuptialia’ that conditions are the same for both contracts. 312 So.2d 107, at 110.

However, the court below overlooks the fact that articles 97, 112, and 2330 of the Civil Code all came into our law at the same time, 1808, and have remained in our law substantially unchanged since that time. The court of appeal’s decision leads to the conclusion that the redactors, by enacting article 112, while at the same time enacting articles 97 and 2330, repealed that part of article 2330 requiring that the minor be “assisted in the agreement by those persons whose consent is necessary to his marriage.” Such a conclusion is foreign to rules of proper statutory interpretation.

In City of New Orleans v. Board of Supervisors of Elections for the Parish of Orleans, 216 La. 116, 145, 43 So.2d 237, 247 (1949), this Court summarized certain rules of statutory interpretation applicable to the instant case:

In the case of State v. Shusan, 206 La. 415, 19 So.2d 185, 190 this court approved and re-adopted “the principle announced by the textwriters that ‘laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject’” and observed “In view of this well-recognized legal principle, it is not reasonable to conclude that the Legislature, in enacting a particular statute, intends that it shall be immediately nullified by another statute enacted at the same session. The principle that a repeal by implication is not favored by law is especially applicable as between two statutes passed at the same session of the Legislature. And where two acts relating to the same subject matter are passed at the same legislative session, there is a strong presumption against implied repeal, and they are to be construed together, if possible, so as to reconcile them, giving effect to each, and thereby avoid an implied repeal, rather than to infer that one destroys the other.”

We believe that effect can be given to both article 112 and article 2330, by recognizing that the articles reflect two different, yet equally important, public policies of this state.

Article 112 of the Civil Code prevents the nonconsenting parents from annulling the marriage of their minor child because of the absence of consent. Delpit v. Young, supra; State v. Golden, supra. This is only one form of expression of the public policy of Louisiana that every effort must be made to uphold the validity of marriages. Succession of Gaines, 227 La. 318, 79 So.2d 322 (1955); Douglas v. Shephard, 193 So. 264 (La.App. 2d Cir. 1939). Moreover, this policy is closely intertwined with the presumption of legitimacy. If the marriage of minors could be annulled for lack of parental consent by the nonconsent-ing parent (s), then the children of such marriage could easily be branded illegitimate. This certainly is not a desirable result in light of Louisiana’s traditional policy of finding legitimacy whenever possible. See Lewis v. Powell, 178 So.2d 769 (La. App. 2d Cir. 1965); Dorsey v. Williamston, 170 So.2d 773 (La.App. 1st Cir. 1964); Lambert v. Lambert, 164 So.2d 661 (La.App. 3rd Cir. 1964).

On the other hand, another public policy traditionally recognized in Louisiana as beneficial to the public good is that a minor be protected in his contractual relationships. See article 1785, R.C.C. Thus, simple lesion will relieve a minor in every species of contract. Article 1864, R.C.C. In Harris v. Ward, 224 So.2d 517, 521 (La.App. 2d Cir. 1969) the court stated:

We believe the tenor running through the articles, cases and various commentaries is that the contracts of minors, although susceptible to annulment by the minor or his representative, nevertheless create certain legal effects binding on the party contracting with the minor as well as persons who are strangers to the immediate transaction. In other words, minority is a cloak or a weapon only in the hands of the minor or his representative which is available for his own protection and, so long as the agreement or contract has not been disavowed or annulled, it has the same effect as the contract of a person fully capable of contracting.

As one court stated, “one who deals with a minor does so at his peril.” LaPorte v. Clesi, Inc., 197 So.2d 419, 423 (La.App. 4th Cir. 1967).

We believe that article 2330 of the Civil Code is such an expression of this state’s strong public policy of protecting minors in their contractual relations. Thus, an unemancipated minor can enter into a marriage contract, but only with the consent of both parents, or the survivor, if one be dead, or the tutor, if both are dead. C.C. 97, 2330. Such an interpretation is consistent with the first paragraph of article 1785, which states:

Art. 1785. Minors emancipated may contract in the cases already provided by law, and when not emancipated, their contracts are valid, if made with the intervention of their tutors, and with the assent of a family meeting in the cases where by law it is required.

Therefore, a marriage contract, entered into by a minor with the assistance (intervention) of his parents (tutor) is valid. However, if entered into without the assistance of both parents, such a contract is null. (“ . . . In all other cases, the minor is incapacitated from contracting . . . .” C.C. 1785.) In the instant case, Mrs. Wilkinson entered into the contract when she was a minor, without the assistance of her father; therefore, the contract is null.

However, plaintiff argues that even if the contract is null, Mrs. Wilkinson has lost the right to attack it by the prescription of five and ten years. We find this contention to be without merit.

La. R.S. 9:291 limits the actions that a married woman can bring against her husband during the marriage to four:

As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for:
(1) A separation of property;
(2) The restitution and enjoyment of her paraphernal property;
(3) A separation from bed and board; or
(4) A divorce. Added Acts 1960, No. 31, § 2.

The four enumerated in the statute are exclusive, not illustrative. Palmer v. Edwards, 156 So. 781 (La.App. 1st Cir. 1934). Thus, during the marriage, Mrs. Wilkinson could not have brought an action against her husband to annul the contract. Prescription cannot run against a cause of action which has not accrued or while that cause of action cannot be exercised. Guderian v. Sterling Sugar and Railroad Co., 151 La. 59, 91 So. 546 (1922); South Arkansas Lumber Co., v. Tremont Lumber Co., 146 La. 61, 83 So. 378 (1919); Soirez v. Great American Insurance Company, 168 So.2d 418 (La.App. 3rd Cir. 1964); Succession of Clark, 155 So.2d 37 (La.App. 4th Cir. 1963).

Plaintiff asserts that any provision suspending the accrual of prescription between husband and wife is unconstitutional. Plaintiff cites no authority for this novel assertion. Indeed, the state has broad authority to regulate the status of marriage. Rhodes v. Miller, 189 La. 278, 179 So. 430 (1938); Land v. Land, 183 La. 588, 164 So. 599 (1936). As stated in Klein v. Mayo, 367 F.Supp. 583, 585 (D.Mass.1973), affirmed, 416 U.S. 953, 94 S.Ct. 1964, 40 L.Ed.2d 303 (1974):

Marriage has long been held to be a social relation clearly subject to state regulation. Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888); Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
This contention is without merit.

Plaintiff also contends that Mrs. Wilkinson is estopped from asserting the invalidity of the marriage contract. This assertion is based on the facts surrounding the 1966 separation suit. In that suit, Mrs. Wilkinson reconvened, alleging the existence of a community of acquets and gains. The matter went to trial, but before a judgment could be rendered, the parties reconciled. Plaintiff contends that Mrs. Wilkinson conditioned the reconciliation on the voidance of the marriage contract. It is alleged that Mr. Wilkinson refused this condition, yet Mrs. Wilkinson nonetheless went through with the reconciliation. Plaintiff argues Mrs. Wilkinson is therefore estopped from asserting its invalidity at this time. We find this argument to be without merit.

First we note that the testimony about the reconciliation is conflicting. Mrs. Wilkinson testified that for a year after the reconciliation Mr. Wilkinson continually assured her that the document was without legal effect. However, even accepting plaintiff’s version of the reconciliation, we find no estoppel.

Equitable estoppel, or “estoppel in pais,” can be defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. State ex rel Porterie v. Gulf, Mobile and Northern R. Co., 191 La. 163, 184 So. 711 (1938); American Bank and Trust Co. v. Trinity Universal Insurance Co., 194 So.2d 164 (La.App. 1st Cir. 1966), affirmed, 251 La. 445, 205 So.2d 35 (1967); Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972).

Mr. Wilkinson has never changed his position in regard to the validity of the marriage contract. He has maintained, if we are to believe him, from the very beginning, that the marriage contract is a valid one. An essential element of estop-pel, a change in one’s position to his detriment because of reliance, is totally lacking in this case.

Estoppels are not favored in our law. Rodden v. Davis, 293 So.2d 578 (La. App. 3rd Cir. 1974), cert. den., 296 So.2d 832 (La.1974). Having failed to prove all essential elements of the plea of estoppel, Mr. Wilkinson cannot avail himself of that doctrine. Baton Rouge Lumber Company v. Gurney, 173 So.2d 251 (La.App. 1st Cir. 1965).

Plaintiff’s final argument addresses itself to the trial judge’s actions in assessing attorney’s fees against the community. Plaintiff argues that Mrs. Wilkinson did not adequately prove the value of legal services rendered by her attorneys. The fees, though substantial, are adequately supported by the record. The services of the attorneys were itemized in detail and supported by testimony. We cannot say that the trial judge erred in fixing the amount of the attorney’s fees.

Therefore, we hold that a marriage contract, entered into by an unemancipated minor, without the assistance of her father, is null.

Accordingly, the decision of the court of appeal is reversed, and the judgment of the Family Court of East Baton Rouge is reinstated; all costs attributable to the appeal are to be borne by plaintiff.

SANDERS, C. J., dissents, being of the opinion that the judgment of the court of appeal is correct. See La.App., 312 So.2d 107.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Court of Appeal, 312 So.2d 107.

      . Article 148 was amended in 1927 to provide that the consent of either parent is sufficient. Planiol Civil Law Treatise, vol. 1, part 1, sec. 747 (1959). Translation from the Code Napoleon or French Civil Code, Translated into English by a Barrister of the Inner Temple; London, 1827, republished by Claitor’s Publishing Co., 1960.

      . “The marriage contracted without the consent of the father and mother, of the ascendants, or of the family meeting, in the ease where such consent was required, can be impeached by those only whose consent was required, or by that one of the spouses who was in need of such consent.” Translation from the Code Napoleon or French Civil Code, Translated into English by a Barrister of the Inner Temple; London 1827, republished by Claitor’s Publishing Co., 1960.

      . The term “tutor” encompasses a parent who administers the estate of a minor child. La. Civil Code art. 221 (1870). See 47 Tul.L. Rev. 1093 (1973).


text:
    Joaquin COUTO, Ind. and as Duly Qualified Natural Tutor of Maria Defantima Couto, et al. v. Doctor Louis R. OMS and St. Paul Fire and Marine Insurance Company.
    No. 57096.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Joaquin Couto, Individually and as duly qualified natural tutor of Maria Defantima Couto, Maria Desgracis Couto and Emmual Christan Couto applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 518.

Writ granted. This case is remanded to the court of appeal for a decision on the merits. See Gonzales v. Xerox Corp., 320 So.2d 163, decided by this Court, October 1, 1975.

DIXON, J., dissents, and is of the opinion Gonzales v. Zerox is erroneous.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57051.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Harold J. Vincent applying for Writ of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. Relator’s allegations are refuted by the findings of the trial judge.

DIXON, J.,

dissents from the denial; there has never been an evidentiary hearing in this case, as the law requires, even after 3 applications. Some of the allegations are not refuted in any way.

CALOGERO, J., dissents. There have been no post hearing findings of the trial judge.


text:
    Noel J. RADA v. ADMINISTRATOR, DIVISION OF EMPLOYMENT SECURITY, State of Louisiana, DEPARTMENT OF LABOR.
    No. 57062.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Joseph R. Gerace, Administrator of the Dept, of Employment Security, State of Louisiana applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 460.

Writ denied. There is no error in ruling of the Court of Appeal.


text:
    STATE of Louisiana ex rel. George BRAY v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57065.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: George Bray applying for writ of habeas corpus and certiorari.

Writ denied. From the opinion of this Court (State v. Bray, 292 So.2d 697) it clearly appears that there was “some” evidence of the cause of death. Furthermore, this question should have been raised on appeal — it was not.


text:
    Jim GARRISON v. HOTEL DIEU and Pacific Employers Insurance Company.
    No. 57075.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Jim Garrison applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 557.

Writ denied. Under the facts found by the court of appeal, we find no error in the result.


text:
    STATE of Louisiana ex rel. Joseph GARRETT, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57070.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Joseph Garrett, Jr. applying for writ of habeas corpus.

Writs denied. The showing made does not warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Joe CURTIS, Jr. and Willie Drumgo, Jr. v. C. Murray HENDERSON, Warden, LSP. Department of Corrections, State of Louisiana, et al.
    No. 57068.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Joe Curtis, Jr. and Willie Drumgo, Jr. applying for writs of habeas corpus and certiorari.

Writ denied. Applicant has raised no issues herein which were not raised and considered on the appeal.


text:
    STATE of Louisiana ex rel. Willie E. ALLEN and Henry Barber v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57066.
    Supreme Court of Louisiana.
    Nov. 21, 1976.
   In re: Willie E. Allen and Henry Barber applying for writs of certiorari, prohibition and mandamus.

Writ denied. Under the allegations, the transfer for no assigned reason of the inmates from the police barracks back to the state penitentiary presents an administrative decision within the discretion of the administrative department and consequently not subject to judicial review.


text:
    STATE of Louisiana v. Eugene COSSICH, Sr.
    No. 57072.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Eugene Cossich, Sr. applying for writ of certiorari, review and/or mandamus.

Writ denied. Applicant has an adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Frank G. DOMINGUEZ v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, 24th Judicial District Court, Parish of Jefferson.
    No. 57078.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Frank G. Dominguez applying for writ of mandamus.

Writ denied. The matter is moot. District Attorney’s Office advises that charge against relator has been dismissed and de-tainer will be removed.


text:
    William A. DOYLE, Jr. v. Richard J. GANUCHEAU, Clerk of Court.
    No. 57076.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: William A. Doyle, Jr. applying for writ of mandamus and/or remedial writs.

Application denied. The allegations do not support the relief sought.


text:
    STATE of Louisiana ex rel. Henry Carl HEAD, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary and John Rabalais, Records Officer, Louisiana State Penitentiary, et al.
    No. 57079.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Henry Carl Head, Jr., applying for writs of habeas corpus and mandamus.

Writ denied. On the showing made, the 20 year sentence does run concurrently with balance owed on the 10 year and 8 month sentence.


text:
    Oliver P. SCHULINGKAMP v. VISTA SHORES CLUB.
    No. 57080.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Oliver P. Schulingkamp applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 318 So.2d 907.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.

CALOGERO, J., does not participate, being a member of the defendant club.


text:
    Doris C. FLECKINGER v. Mrs. Mae Anna Sendker Smith, wife of Leon M. SMITH, Deceased, et al.
    No. 57084.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Doris C. Fleckinger applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 319 So.2d 881.

Application denied; there was no error in the Court of Appeal in the application of Johnston v. Nanney, 244 La. 959, 155 So.2d 196 (1963).

DIXON, J., is of the further opinion that R.S. 9:5661 would be unconstitutional if interpreted as applicants contend.


text:
    BOARD OF COMMISSIONERS FOR the LAFOURCHE BASIN LEVEE DISTRICT v. Dr. William J. ELMER et al.
    No. 57086.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Dr. William J. Elmer, et al applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 318 So.2d 914.

Writ denied. On the facts found, the result is correct.

SUMMERS, J., is of the opinion the writ should be granted.

DIXON, J.,

concurs in the denial; the second opinion of the Court of Appeal, if considered with its first opinion (268 So. 2d 274) is not in error.

CALOGERO, J., dissents, would grant this writ.


author: TATE & CALOGERO, JJ.,

text:
    STATE of Louisiana v. Jeffrey Paul JOHNSON.
    No. 57087.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Jeffrey Paul Johnson applying for Remedial Writ to Issue Under This Court’s Supervisory Jurisdiction and for Stay Order.

Writ denied. No error is shown.

TATE & CALOGERO, JJ.,

concur.

The State cannot withhold evidence in its possession which the defendant is entitled to use in attacking the credibility of prosecution witnesses. We see no real reason why the State should not disclose this evidence now; a criminal trial is not a lawyers game. However, since the defendant will be entitled to this information upon cross-examination of the State witnesses— see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L. Ed.2d 347 no prejudicial error has yet occurred.


text:
    STATE of Louisiana in the Interest of Leonard CORTEZ.
    No. 57089.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Leonard Cortez applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 319 So.2d 496.

Writ denied. There is no error of law in the judgment complained of.


text:
    Willis R. FRAZIER v. SLUMBERLINE, INC. and Carl F. Stockmeyer, Jr.
    No. 57094.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Willis R. Frazier, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 453.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in the holding.

CALOGERO, J., is of the opinion this writ should be granted.

BOLIN, J., dissents from the refusal to grant. I think the first assignment has merit.


text:
    Edward V. WHITE v. FREEPORT CHEMICAL COMPANY and Liberty Mutual Insurance Company.
    No. 57092.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Edward V. White, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. James. 319 So.2d 563.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment.