author: WALKER, Justice, for the Court:

text:
    David H. McBRIDE v. STATE of Mississippi.
    No. 50449.
    Supreme Court of Mississippi.
    Jan. 24, 1979.

      Travis Buckley, T. Gene Clark, Katie S. Matison, Laurel, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, WALKER and BOWLING, JJ.
   WALKER, Justice, for the Court:

McBride was convicted of embezzlement by a jury in the Circuit Court, Second Judicial District of Jones County. He was sen-. tenced to five years in the state penitentiary. We reverse.

Allegedly, McBride, an insurance agent, received the sum of $230.00 in trust from Glen and Ethel Goodwin for the purpose of securing fire insurance on a dwelling, and instead of securing the coverage, he converted the money to his own use. Some months later, the dwelling burned, and allegedly, McBride, when notified, then belatedly attempted, but failed to secure the coverage.

As part of its case, the state put on a witness who testified she saw a coemploy-ee of McBride use her [the witness] agency’s postage meter to backdate an envelope addressed to the company from which the fire insurance was sought. The envelope was later identified as the one which contained the application for the Goodwin’s fire insurance. The testimony concerning the backdating was allowed into evidence over objection. We hold that was reversible error, since the indictment did not charge a conspiracy, nor was there any proof of conspiracy. The backdating by McBride’s coemployee was not done in the presence of McBride, nor was there any testimony or evidence to show that it was done at his direction or that he had knowledge of the act. Under these circumstances, the testimony was not relevant to prove McBride’s guilt of embezzlement absent any other proof connecting him with the alleged backdating. The testimony was susceptible of creating the inference that McBride had instructed the coemployee to backdate the envelope in which the application for insurance was mailed, and was highly prejudicial. It is probable that the jury imputed the act to McBride when the testimony presented does not justify such. Humphreys v. State, 122 Miss. 41, 84 So. 141 (1920).

Since the case must be remanded, we briefly address two other assignments of error for purposes of new trial. Appellant correctly contends that instruction number 3 for the state was improper. The first part of the instruction, by the manner in which it is written, has a tendency to state as a fact that which the state is charged with proving. Notwithstanding that it purports to recite the charges against defendant, it is confusing and misleading. It should not be given in its present form in the event of a new trial.

Appellant also contends the indictment was improper. We disagree. While it was. inartfully drawn, it adequately stated a cause of action of embezzlement under Mississippi Code Annotated section 97-23-25 (1972).

The judgment of the trial court is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and GOFER, JJ., concur.


source: Caselaw Access Project

author: SUGG, Justice, for the Court:

license: Public Domain

text:
    George BALLARD v. STATE of Mississippi.
    No. 51041.
    Supreme Court of Mississippi.
    Jan. 24, 1979.
    James D. Waide, III, West Point, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice, for the Court:

George Ballard was indicted in Clay County for murder, convicted of manslaughter and sentenced to fifteen (15) years imprisonment. On appeal he assigns three errors but it is necessary that we note only one assignment of error because it requires the reversal of this case, and there is no merit to the other two assignments of error.

Ballard argues that the court erred when it refused to allow him to personally make a portion of the closing argument to the jury. Article 3, Section 26, Mississippi Constitution of 1890 provides in part as follows:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, .

We held in Gray v. State, 351 So.2d 1342 (Miss.1977) that a defendant is entitled to personally argue his case to the jury and refusal to allow him to do so is reversible error.

REVERSED AND REMANDED.

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


text:
    Mrs. Lannell M. DUNNAM, as guardian of the Estate of Charles Henry Butler, Jr., Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 50730.
    Supreme Court of Mississippi.
    Jan. 24, 1979.

      Covington & Roberts, Larry E. Roberts, Meridian, for plaintiff-appellant.
    Eppes & Shannon, Walter W. Eppes, Jr., Meridian, for defendant-appellee.
    Before PATTERSON, SUGG and BOWLING, JJ.
   PATTERSON, Chief Justice, for the Court:

This appeal arises from a decree of the Chancery Court of Lauderdale County construing the uninsured motorist provisions of a policy issued to Mrs. Lannell Dunnam by State Farm Mutual Automobile Insurance Company (hereinafter State Farm). It involves the priority of a subrogation lien of an insurer over the judgment lien of an insured to the assets of an uninsured motorist judgment debtor.

On August 29, 1975, Charles Henry Butler, Jr., sixteen years of age, was injured in an automobile accident. At the time he was engaged, with other youths, in loading and hauling hay on a flatbed truck for Ernest E. Byrd. Kevin Ponds was the truck driver although he was only fifteen years old and had possessed his driver’s license for very few months. After the last load of hay was placed on the truck late in the afternoon, one of the youthful employees seated himself in the cab of the truck with the driver and the others, including Henry, climbed to the top of the hay for their return to the barn. While enroute the hay fell from the truck tumbling Henry into the roadway where he was struck by an oncoming vehicle driven by Jerry McKee. Henry suffered a broken leg, three broken ribs and a large burn across his back by contacting the automobile’s exhaust pipe. These injuries required hospitalization for about five and one-half weeks. Doctors’ bills of $1255, as well as a hospital bill of $4,519.60, were admitted into evidence without objection.

Mrs. Lannell M. Dunnam, mother and next friend of Charles Henry Butler, Jr., filed suit in the circuit court against Henry’s employer Ernest E. Byrd, Kevin Ponds, the truck driver, his parents, and Jeffrey McKee, the driver of the automobile which struck Henry. After a three-day trial, the jury returned a verdict against Byrd only for $20,000 and a judgment for that amount was entered on April 21, 1977.

Byrd did not have liability insurance on the truck and filed a voluntary petition in bankruptcy on May 27, 1977. Plaintiff thereafter filed proof of her claim and at this time there exists a fair probability that plaintiff’s judgment might be satisfied, or partially so, from the assets of the bankruptcy estate.

Mrs. Dunnam had insurance on her family car with State Farm which provided coverage of $10,000 for injuries caused by an uninsured motorist. Her son Henry was protected by the policy. However, State Farm declined payment until the beneficiary entered into a trust agreement entitling it to first payments from the uninsured motorist. As the guardian of her son Mrs. Dunnam filed suit in the chancery court against State Farm on the policy and recovered a judgment of $10,000. The court held, however, that State Farm by subrogation was entitled to the first monies collected on the $20,000 judgment against Ernest Byrd, the uninsured motorist, being of the opinion that Mississippi Code Annotated section 83-11-107 (1972) so required.

There is assigned for reversal:

1. It was error for the trial court to interpret Section 83-11-107 of the Mississippi Code of 1972 so as to allow the Appel-lee insurance company first subrogation rights against the Appellant before the Appellant’s ward had actually received full satisfaction of his personal judgment against the uninsured.

2. The lower court erred in failing to award the Appellant interest at 8% per annum according to statute on $10,000.00 of the $20,000.00 judgment rendered by the Circuit Court of Lauderdale County, Mississippi, from and after April 21, 1977, the date of the Circuit Court judgment, until October 18, 1977, the date the Chancery Court signed its decree.

We are of the opinion the trial court erred in concluding State Farm’s subrogation lien had priority over the judgment creditor’s lien. Section 83-11-107, Subro-ga tion, provides in pertinent part:

An insurer paying a claim under the endorsement or provisions required by Section 83-11-101 shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made, including the proceeds recoverable from, the assets of the insolvent insurer. . . [A]nd that any recovery against such owner or operator shall be paid to the insurance company to the extent that such insurance company paid the named insured in the action brought against such owner or operator, except that such insurance company shall pay its proportionate part of any reasonable costs and expense incurred in connection therewith, including reasonable attorney’s fees.

The trust agreement in the policy follows:

“5. Trust Agreement — Coverages C, M and U. In the event of payment to any person under coverage C, M or U:
(a)the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made;
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under the coverages:
(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;
(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person; in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorneys’ fees incurred by it in connection therewith;
(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.” (Emphasis exists in the original instrument.)

This agreement undoubtedly intended to provide for pro tanto subrogation with priority to the insurer. The terms of the policy are clear that this effect was intended, but nevertheless the policy must be construed in accord with applicable statutes.

In our jurisprudence if the provisions of an insurance policy conflict with the statute, the statutory provisions prevail and are incorporated into the policy. In United States Fidelity & Guaranty Company v. Stafford, 253 So.2d 388 (Miss.1971), we held:

[1] It is the law in this state as it is in most jurisdictions that if there is any difference between an insurance policy as written by the company and the requirements by statute of the state, the requirements of the statute are incorporated into and become a part of the policy of the insurance company. 391) (253 So.2d at

Therefore, the construction of Section 83-11-107 controls this case. While we have no case directly in point, several pronouncements concerning the uninsured motorist statute have been made. In Stevens v. United States Fidelity & Guaranty Company, 345 So.2d 1041 (Miss.1977), we held:

[1] We are compelled in interpreting this statute’s language to shape our decision in conformity with the public policy behind this legislation as expressed in Rampy v. State Farm Mutual Automobile Insurance Co., 278 So.2d 428 (Miss.1973).
“In interpreting similar, if not identical statutes, the vast majority of jurisdictions have stated that the purpose of such uninsured motorist laws is to provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers. A fine pronouncement of the policy considerations underlying uninsured motorist legislation is as follows:
‘A provision, drawn by the insurer to comply with the statutory requirement of uninsured motorist coverage, must be construed in light of the purpose and policy of the statute. Such a provision, drawn in pursuance of a statutorily declared public policy, is enacted for the benefit of injured persons traveling on the public highways. Its purpose is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile cov-. ered by a standard liability policy. Such provisions are to be liberally construed to accomplish such purpose.’ [278 So.2d at 432].
“In addition, as pointed out by Parker v. Cotton Belt Insurance Co., Inc., 314 So.2d 342 (Miss.1975), the uninsured motorist statute is remedial in nature and must be liberally construed to accomplish its purpose.
“[2] The terms and provisions of the Mississippi Uninsured Motorist Coverage Act are written into every automobile liability policy issued in this state — unless the named insured shall reject the coverage in writing. United States Fidelity & Guaranty Co. v. Gough, 289 So.2d 925 (Miss.1974).” (345 So.2d at 1043)

And in Hodges v. Canal Insurance Company, 223 So.2d 630 (Miss.1969), it was explained:

[3,4] The purpose of the uninsured motorist provision is to provide the insured a means of collecting that to which he is legally entitled for bodily injuries caused by accident arising out of the ownership, maintenance and usé of an uninsured automobile. This provision must be construed from the perspective of the injured insured, from whose standpoint a tort-feasor operating an automobile with no insurance available is an uninsured motorist. It is all the same to him whether there is no insurance at all, or a policy that is incapable of being applied to satisfy his claim because the tort-fea-sor’s insurer lawfully disclaims liability. (223 So.2d at 634) (Emphasis added.)

In Harthcock v. State Farm Mutual Automobile Insurance Co., 248 So.2d 456 (Miss.1971), we pointed out that the uninsured motorist coverage is mandatory and that the statute [now Miss.Code Ann. § 83-11-101 (Supp.1978)] undertakes “. . . to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury from the owner or operator of an uninsured motor vehicle . . . .” This section must be read in pari materia with Mississippi Code Annotated section 83-11-107 (1972) providing for subrogation. In Harthcock, supra, we continued:

. The insurer may not cut down on the coverage the statute requires. The statute intends to provide a source for the collection by the insured of all sums which he shall be legally entitled to recover as damages against the owner or operator of an uninsured motor vehicle. . (248 So.2d at 459) (Emphasis added.)

We then held:

. [T]hat the uninsured motorists coverage of each policy of liability insur-anee is available to the injured insured until all sums which he shall be entitled to recover from the uninsured motorist have been recovered. . . . (248 So.2d at 461-462)

Appellant argues that numerous state courts have construed statutes similar to ours to provide for pro tanto subrogation. However, the uninsured motorist statutes in those states contain the phrase “subject to the terms and conditions of such coverage”, or similar words, which is absent from the uninsured motorist provisions of our code. We are of the opinion that Mrs. Dunnam, guardian, is legally entitled to full recovery of the amount of her judgment before State Farm shall be entitled to subrogation.

Appellant next contends the court erred in failing to award interest on $10,000 from the time of judgment against the uninsured motorist on April 21,1977, until October 18, 1977, the date of the chancery decree. We are of the opinion this assignment has merit. We held in State Farm Mutual Insurance Co. v. Bishop, 329 So.2d 670 (Miss.1976), that when an insurer has knowledge that its insured has suffered damages in excess of its uninsured motorist coverage as a result of the negligence of an uninsured motorist, and arbitrarily refuses payment, the insured is entitled to prejudgment interest. Here State Farm concedes knowledge of the judgment against Ernest E. Byrd for $20,000 and admits he was uninsured at the time of the accident. It also acknowledges demand for payment of the $10,000 and its conditional offer in response to Mrs. Dunnam. Upon her refusal to meet the conditions State Farm refused to make payment. In addition, the record indicates that State Farm waived the requirement of written consent for suit by the plaintiff against Byrd, et al. Moreover, the trial was seriously contested which distinguishes it from State Farm Fire & Casualty Co. v. Wightwick, 320 So.2d 373 (Miss.1975), and Saint Paul Fire & Marine Insurance Co. v. Arnold, 254 So.2d 872 (Miss.1971), cited by appellee.

We conclude Mrs. Dunnam was entitled to interest from the time of the judgment in circuit court. However, appellant in her bill of complaint prayed for interest only from April 29, 1977. We therefore hold that appellant is entitled to interest from April 29, 1977, at the legal rate until October 18, 1977.

The judgment of the trial court is affirmed in part and reversed and rendered in part. Judgment is rendered allowing Mrs. Dunnam, as guardian, recovery of the full amount of her judgment before State Farm is entitled to subrogation and legal interest on $10,000 from April 29, 1977, to October 18, 1977. The judgment in the amount of $10,000 decreed in favor of Mrs. Dunnam, as guardian, is affirmed.

AFFIRMED IN PART, REVERSED AND JUDGMENT HERE FOR APPELLANT IN PART.

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


author: SHORES, Justice.

text:
    ENGINEERS OF THE SOUTH, INC., a corp. v. J. W. GOODWIN et al.
    77-214.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Jan. 26, 1979.
    Harold A. Bowron, Jr., of Balch, Bing-ham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    Eugene D. Martenson, Birmingham, for appellees.
   SHORES, Justice.

Plaintiff-appellant brought this action for declaratory judgment, asking the court to construe a contract between the plaintiff and defendants. Specifically, the plaintiff sought a declaration that, by paragraph 6(c) of the contract, Engineers of the South, Inc. agreed only to indemnify the defendants, J. W. Goodwin and the Goodwin companies, to the extent of work performed by Engineers of the South, Inc. and did not obligate it to indemnify J. W. Goodwin and the Goodwin companies for work theretofore performed by Goodwin and the Goodwin companies.

The defendants denied the material allegations of the complaint, asserted a defense of estoppel, and also filed a counterclaim seeking to have the plaintiff provide insurance to indemnify Goodwin and the Goodwin companies against loss occasioned by work performed by Goodwin and the Goodwin companies. The defendants also demanded a jury trial. The court denied the plaintiff’s motion to strike the jury demand and the case proceeded to trial to a jury. It rendered a verdict in favor of the defendants; and, from the judgment entered thereon, the plaintiff appealed.

Two issues are presented for review. First, the appellant argues that reversal is required because the trial court excused one of the jurors after trial had begun. The facts surrounding this issue are as follows:

After the jury had been struck and empaneled, opening statements were made by counsel for both sides. The next morning one of the jurors, Mrs. Kathryn Mabee, advised the trial judge that, during opening statements the day before, she recognized the name of a Mr. Lemley who had signed the contract, the subject of the suit. The trial judge related in chambers to the attorneys that Mrs. Mabee had informed him that she was acquainted with a Mr. Lemley, that he was a neighbor of hers and was a retired engineer. She said, however, that it would not matter to her one way or another if this person was the same Mr. Lemley as the one involved in this litigation. (It was then stipulated that they are one and the same.) Following this, counsel for the defendants moved to have Mrs. Mabee excused as a juror and allow the case to continue with eleven jurors based upon an agreement between the parties and the court which was entered into before the commencement of the trial. The plaintiffs counsel objected to this motion saying:

“ . . . I do not agree that it would be appropriate and do not consent to the continuation of the trial or having a mistrial . . .”

The trial court then granted the defendants’ motion and excused the juror, expressly noting that:

“ . . .1 would not ordinarily do it, I would state that for the record, except for the agreement of proceeding with 11 in the event of incapacity of any of the jurors. This may not, does not probably fall in the category of sickness or incapacity, but to attempt to do complete justice to all parties and in view of the agreement before hand I would excuse her.”

The appellant concedes that the parties and the court had a prior agreement to proceed with less than twelve jurors but argues that Mrs. Mabee was improperly excused under the terms of that agreement. It asserts that the agreement contemplated that only sickness or incapacity of a juror would justify excusing him or her under the agreement. Counsel for appellees stated on the record that the agreement contemplated “ . . . that if for some reason a juror was recused prior to the commencement of deliberations that we had agreed to go along with 11.”

The trial judge observed that Mrs. Mabee’s acquaintance with a party to the litigation probably did not fall into the category of sickness or incapacity but nevertheless excused her “in view of the agreement.” The appellant argues Ithat this was an erroneous interpretation or the agreement by the trial judge and urges us to reverse. However, the agreement is not in the record. There are references to it by the court and by counsel for both sides as discussed in chambers leading up to the discharging of the juror. But, nothing in the record shows what the terms of the agreement were. The trial judge obviously concluded that it permitted him to excuse this juror under its terms. He interpreted it to provide that the parties had agreed to continue the trial with eleven jurors under the circumstances presented here. We cannot say, as a matter of law, that it did not; and, because it is not a part of the record, we cannot say that he erroneously interpreted it under these facts.

It is true, as the appellant contends, that a jury trial contemplates a jury of twelve persons. Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974). However, Rule 48, ARCP, permits the parties to consent to a jury of less than twelve.

Although we agree with the appellant that Mrs. Mabee’s acquaintance with Mr. Lemley was not sufficient to incapacitate her as a juror, we cannot speculate that the agreement to proceed with eleven was so restricted. The trial court concluded that the agreement to proceed with less than twelve jurors encompassed the situation presented here. The parties were certainly free under ARCP 48 to so stipulate. We cannot reverse in the absence of a record which shows that this was error.

The appellant finally argues that the trial court erred in denying its motion to strike the jury demand. In support of this argument, it cites a number of cases which hold that a party to an action for declaratory judgment is entitled to a trial by jury only where an issue of fact exists. Alabama Electric Cooperative v. City of Luverne, 282 Ala. 616, 213 So.2d 676 (1968); Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So.2d 105 (1961); Reed v. Hill, 262 Ala. 662, 80 So.2d 728 (1955). We agree with this proposition of law and continue to follow it. However, the issue here is whether the contract under which a declaratory judgment was sought was so clear and unambiguous as to require its construction by the trial court, as a matter of law, or whether, on the other hand, it was so unclear and ambiguous that a question of fact going to the parties’ intent was presented. We hold that, in the instant ease, a fact question was presented.

The evidence shows the following factual background against which the agreement was drawn. Mr. J. W. Goodwin formed J. W. Goodwin Engineering Company to do municipal engineering work in the 1930’s. The business prospered and he hired several engineers (the signators to the contract at issue). Over the years, Mr. Goodwin formed several Goodwin companies, all involved in municipal contract engineering. In the 1950’s he allowed the employee engineers to buy stock in the company. Mr. Goodwin was President and Chairman of the Board of the various Goodwin companies.

In 1963, all of the business of the Goodwin companies was being done under the corporate name of Goodwin Engineers of the South, Inc. In that year, Mr. Goodwin decided to retire and sell the business to the other engineers who had been with the companies for fifteen years. This decision resulted in the agreement involved here. After setting up a procedure whereby all of the stock could be acquired by the employees, the agreement provided in pertinent part:

“6. The Corporation and individual stockholders agree that the trade name of ‘Goodwin Engineers of the South, Inc.’ belongs exclusively to J. W. Goodwin and said trade name has been used by said company since its incorporation, with his consent, which was set forth in a previous stockholders agreement dated the 31st day of October, 1957 and during the time that said J. W. Goodwin was an officer and stockholder of said company. J. W. Goodwin now is leaving the employment of said company as an officer and stockholder and he has agreed to the use of the trade name ‘Goodwin Engineers of the South, Inc.’ by the Corporation, only subject to the following terms and conditions.
“(c) The parties hereto will at all times carry public liability and property damage insurance, comprehensive professional, products liability, errors and omissions and such other insurance which they will extend to cover J. W. Goodwin, individually, Goodwin Enterprises, Inc. (formerly Goodwin Engineers, Inc.) J. W. Goodwin Investments, Inc. (formerly J. W. Goodwin Engineering Co., Inc.) J. W. Goodwin Engineering Company, a partnership and shall furnish an endorsement of each policy and any renewal thereof to J. W. Goodwin and shall at all times, indemnify and save harmless J. W. Goodwin and the other parties mentioned above against all liability, claims of liability, loss, cost or damage, including death and loss of services on account of any injury to any person or property occurring from any cause whatsoever in connection with any work performed or heretofore performed by the parties hereto and will at all times and at their expense defend, on behalf of J. W. Goodwin, Goodwin Enterprises and J. W. Goodwin Investments, Inc. and J. W. Goodwin Engineering Company, a partnership, either or all of them, any suit brought against them or any of them arising from such cause and will pay all legal expense and costs in connection therewith.”

The agreement was executed in August of 1963. Thereafter, until July 1, 1975, the indemnitors indemnified Mr. Goodwin and the old Goodwin companies for work performed by Goodwin and the old Goodwin companies. From the date of the agreement, Goodwin Engineers of the South, Inc. (now Engineers of the South, Inc.) paid for insurance naming Mr. Goodwin and all the old Goodwin companies as named insureds and provided insurance protection for Mr. Goodwin and the old Goodwin companies for work performed by Mr. Goodwin and the old companies. During these years, several lawsuits were filed against J. W. Goodwin Engineering Company and other old Goodwin companies. In each instance, these lawsuits were defended under insurance policies provided by Engineers of the South, Inc.

The language of ¶ 6 of the agreement is susceptible of two interpretations— that urged by the plaintiff and that urged by defendants. This being the case, a fact question was presented as to what the parties intended. To decide that issue, evidence of pre-contract negotiations, the conduct of the parties and conditions existing at the time of the agreement are relevant. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 340 So.2d 657 (1975). The trial court allowed both sides to present evidence of this kind and the jury decided the issue in favor of the defendants. Finding no error in the submission of the issue to the jury, we affirm the judgment.

AFFIRMED.

MADDOX, ALMON, EMBRY and BEAT-TY, JJ., concur.


text:
    Jean B. MORRIS v. Joe Martin MORRIS, Jr., et al.
    77-412.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Jan. 26, 1979.

      Bryant A. Whitmire, Wade H. Morton, Birmingham, for appellant-petitioner.
    Wm. Bew White, Jr., and Hobart A. McWhorter, Jr., Birmingham, for appellees.
   SHORES, Justice.

This appeal is from a summary judgment granted in favor of the defendants in an action to rescind an agreement between them and the plaintiff. We affirm.

The plaintiff, Jean B. Morris, is the widow of Joe Martin Morris, Sr., who died July 5,4975. The defendants are the children of the decedent by a former wife. Following the funeral of the decedent, the widow and children agreed that whether or not a will was located, the property belonging to the decedent would be divided equally among the three of them in accordance with an agreement which would be prepared. Pursuant to this oral agreement, the widow employed the firm of Pritchard, McCall & Jones to prepare such an agreement. The agreement provided in part:

“AGREEMENT DIVIDING PROPERTIES OWNED BY JOE MARTIN MORRIS, DECEASED
“WHEREAS, none of the parties hereto, nor the Accountant of Joe Martin Morris, have been able to locate or determine whether Joe Martin Morris had executed a valid Last Will and Testament during his lifetime, which would be effective upon his death, and in all probability the said Joe Martin Morris died intestate and thus all of his property would pass according to the applicable laws of dissent [sic, descent] and distribution, with his widow Jean B. Morris being entitled to certain statutory interests; and -
“WHEREAS, the parties hereto have agreed to a plan of disposition and division of the net estate of Joe Martin Morris, Deceased, said Agreement to be in lieu of any statutory rights conferred upon any party hereto, whether under the laws of the State of Alabama, or any other State, and irregardless [sic] of whether a valid Last Will and Testament of Joe Martin Morris, Deceased, shall be discovered at some later date, it being the intent of the parties thereto to divide the net estate in accordance herewith, irregardless [sic] of any rights any party has either by law or will.

This agreement was executed by all parties a few days after the death of the decedent.

The principal asset of the estate was all of the capital stock of Alabama Metal Products Company, Inc. In addition to the division agreement referred to above, Mrs. Morris had the same law firm draft an agreement relating to the operation of the company, after the stock was distributed one-third to each party. This agreement was executed by all parties and the three were elected directors of the company.

The widow was appointed administratrix of the estate on July 22, 1975; and, on her petition, the administration was removed to the circuit court on December 22, 1975.

Thereafter, on January 29,1976, the widow petitioned the court for the appointment of additional directors of the company.

Following this petition, the children filed a complaint requesting that the court declare each of them owners of one-third of the company stock and order the distribution of the stock in accordance with the agreements between the parties. After a hearing, the parties reached an agreement which was incorporated into a judgment by the trial court, which ordered the stock sold and distribution made of the proceeds pursuant to the division agreement.

Thereafter, the trial court, at various times, on petition, ordered the administra-trix to make distribution of estate funds to the three equally.

The foregoing states the status of the administration in the circuit court when the instant proceeding was commenced. In January, 1978, the widow filed a petition in the estate proceeding which sought a rescission of the division agreement. The petition alleged that the agreement was the product of mutual mistake.

In support of this assertion, it was alleged that the existence of this agreement increased the estate tax liability. The children filed a motion to strike, under ARCP 11, and a motion to dismiss, under ARCP 12(b), (c). A hearing was held on these motions, various exhibits were received into evidence, counsel for both sides presented argument, and the trial court announced that the motion to dismiss would be considered as a motion for summary judgment in accordance with ARCP 12(b). The court entered an order on February 28, 1978, setting a hearing on the motion to dismiss to be considered as a motion for summary judgment for March 10,1978. In its February 28th judgment, the trial court noted that, based upon the voluminous record in the cause “. . . the Court concludes that the parties should have, and in fact are entitled to, the rights afforded by Rule 56.”

Prior to the hearing set for March 10, the widow filed an affidavit in opposition to the motion to be treated as one for summary judgment under ARCP 12(b), and also filed a motion that the trial judge recuse himself. The trial judge denied the motion to recuse and granted the motion for summary judgment. The widow contends on appeal that he erred in both. We disagree.

First, nothing alleged in the petition establishes a claim upon which rescission could be granted. The affidavit of the widow in opposition to the motion for summary judgment amounts to no more than a verification of these allegations. She simply says that the allegations of the complaint are true and that theré was a mutual mistake of the parties in entering into the agreement.

This falls short of the requirements of Rule 56(e).

. . Although a verified pleading, like any pleading, may be presented to the court in a summary judgment proceeding, it will not be accorded the probative force of an affidavit unless it meets the requirements of Rule 56(e). This means that the content of the pleading must be asserted on the personal knowledge of the pleader, set forth facts that woiild be admissible in evidence, and show affirmatively that the pleader is competent to testify to the matters pleaded. . . ” Wright & Miller, Federal Practice and Procedure: Civil § 2738.

No facts were offered to support a claim of mutual mistake. At the very most, all that is alleged in the petition is a misunderstanding on the part of the widow of the legal effect of the agreement insofar as estate taxes were concerned. To defeat a motion for summary judgment where the movant has carried the burden of showing, by the material on file, that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, the party opposing the motion must present facts as would be admissible in evidence to establish that an issue of fact does exist. ARCP 56(e) provides:

“. . . Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

In ruling on the motion for summary judgment, the trial court had before it the evidence offered by the movant which established that the agreement sought to be rescinded was not the product of mutual mistake. Also available to the court and properly considered on the motion was the entire court file in the estate administration, which showed affirmatively that the agreement had been relied on by all parties in making distribution of estate funds. The circumstances surrounding the drafting and execution were before the court.

The record discloses, without contradiction, that the agreement was reached between these parties to divide the estate of the decedent equally among them whether or not a will was ever found. Mrs. Morris employed a law firm which reduced the agreement to writing and it was executed. There is no evidence of fraud or. overreaching on the part of any party to the agreement. Without knowing whether there was a will, and none was ever found, nor what it might provide if there was one, they agreed to a division of the estate on equal shares in lieu of what they would be entitled to under the law — whether the decedent had died with or without a will. The evidence in the record shows that the decision was freely and willingly made, formally executed and adhered to for a number of years prior to the commencement of this action.

It is entirely appropriate for the court to consider any material in ruling on the motion for summary judgment which would be admissible at trial and all papers of record, as well as material submitted in support or opposition to the motion which meets the requirements of the rule. Wright & Miller, supra, § 2721.

The trial court properly entered summary judgment in favor of the mov-ants, and did not err in refusing the motion to recuse. The appellant argues that bias on the part of the trial judge was shown because he indicated, after hearing on the motion to dismiss or strike, that it was his intention to give the parties the benefit of Rule 56. At the same time, he set the Rule 56 motion for hearing some twelve days hence and gave the appellant an opportunity to submit evidence in opposition to the motion. The record shows affirmatively that the appellant was afforded an opportunity to offer evidence in opposition to the motion. The fact that the trial judge indicated that the movants were entitled to summary judgment on the state of the record at the earlier hearing in no way suggests that he would not nor did not consider the appellant’s affidavit offered in opposition to the motion at the subsequent hearing. We have carefully read the record and fail to find any inference of bias or prejudice on the part of the trial judge.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    T. B. McGIFFERT v. STATE of Alabama ex rel. Thomas P. STOWE, Jr., as Chairman of the Unauthorized Practice of Law Committee of the Elmore County Bar Association and Thomas P. Stowe, Individually.
    77-503.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Jan. 19, 1979.

      Alvin T. Prestwood and W. Michael Young, Montgomery, for appellant.
    William H. Morrow, Jr., Gen. Counsel, Ala. State Bar, Montgomery, for appellee, State of Alabama ex rel. Thomas P. Stowe, Jr.
    Robert S. Milner, George P. Howard, Wetumpka, and W. B. Reneau, Wetumpka, for Joseph Macon, appellee and cross-defendant.
    George P. Howard of Howard & Dunn, Wetumpka, for appellee and cross-defendant, E. C. Hornsby.
   BLOODWORTH, Justice.

This is an appeal by McGiffert from an order granting summary judgment to the relator Stowe and to two cross-defendants and denying his motion for summary judgment in a quo warranto proceeding. The order also enjoined McGiffert from the further practice of law.

The quo warranto proceeding was initiated after McGiffert placed the following ad in a local newspaper:

The quo warranto petition averred that McGiffert had intruded into the practice of law without a license and sought to exclude him from the practice of law and to enjoin him from the future practice of law. Appellant McGiffert, representing himself at the trial level, filed what is characterized as a “cross-claim” (third-party complaint) against Circuit Judge Joe Macon and Ernest C. Hornsby, as President of the State Bar Association, alleging that they “conspired together to contact the publisher of the Wetumpka Herald and to intimidate him or discourage him from performing his contract * * * to publish the advertisement * * * After the judges of the Nineteenth Judicial Circuit recused themselves, the Chief Justice appointed the Honorable George H. Wright, Jr., Circuit Judge from Opelika, Alabama, to preside over this case.

Answer to the original quo warranto suit was filed by McGiffert and answers to the cross-claims were filed by Judge Macon and Ernest C. Hornsby. Thereafter, motions for summary judgment were filed by relator Stowe and cross-defendants Judge Macon and Hornsby, supported by affidavits of John P. Harris, publisher of the Wetumpka Herald, the pleadings in the cause, the answer of McGiffert, the answers of cross-defendants Judge Macon and Hornsby to interrogatories propounded to them by McGiffert, and the answers of cross-defendants Judge Macon and Hornsby.

The motions for summary judgment were set for submission before Judge Wright on the 9th day of March, 1978, at 10:00 A.M., without oral argument. On that day, McGiffert filed a motion for summary judgment basing it upon the pleadings and affidavit of John P. Harris attached thereto. It appears that the cause came on for submission before the Court on the day set, and although the attorneys for the relator Stowe and cross-defendants were present, McGiffert was not present. The various motions were then submitted to the Court.

On April 13,1978, Judge Wright rendered judgment: granting the summary judgments filed by the relator and by cross-defendants Judge Macon and Hornsby; denying the motion for summary judgment filed by McGiffert; dismissing the cross-claims; finding that McGiffert had been unlawfully intruding into the profession of law, a profession requiring a license, for which he was not licensed; and, ordering him to forthwith cease and desist and, in the future, refrain from the performance of any acts which constitute the practice of law. On April 26, 1978, Judge Wright amended his judgment in a particular not material to the issues here.

On May 3, 1978, McGiffert filed a notice of appeal “from adverse judgement in this case, appealing from the judgement granting the summary judgement and from judgement of this court denying my motion for summary judgement.”

Motions to dismiss the appeal because of failure of appellant McGiffert to file an adequate notice of appeal and failure to give proper security of cost were submitted when this cause was submitted on the merits. In view of the result we reach in this case in affirming the summary judgments granted by the trial court, it is unnecessary that we write to the issues raised by the motions to dismiss. Therefore, we preter-mit their consideration.

The central issue in this case is whether or not the grant of the various summary judgments was appropriate. Putting it differently, did the original plaintiff in the quo warranto suit (the relator Stowe) and the cross-defendants (Macon and Hornsby) fail to satisfy their burden of establishing that there is no genuine issue as to any material fact in this case? The answer is that the burden was satisfied, that no genuine issue as to any material fact exists in the case, and the cause is to be affirmed.

In considering this central issue, as to the propriety of summary judgment, it is necessary to relate certain uncontroverted facts gleaned from the various papers supporting the motions for summary judgment.

The advertisement was placed, and paid for, by McGiffert in the Wetumpka Herald on November 17, 1977. The publisher of the Wetumpka Herald, John P. Harris, stated unequivocally that he had never had any conversation with Ernest C. Hornsby concerning the publishing of the advertisement nor concerning McGiffert. He did have a telephone call from Judge Macon who simply “told me that the service offered by the ad was illegal and that I and the Wetumpka Herald would be in violation of the law if the ad was published again.”

First, we consider the propriety of granting summary judgment for the quo warranto plaintiff, relator Stowe. It seems to us to be self-evident that the advertisement placed by McGiffert was an intrusion into the profession of the practice of law without having become duly licensed to practice in that he held himself out to the public as a person qualified to practice law by virtue of the ad. This is the only possible interpretation which could be placed on the advertisement in question, it seems to us.

We do agree with appellant McGiffert that if the advertisement is susceptible of more than one meaning then summary judgment would be inappropriate and the case is due to be reversed. McGiffert did state, in his answer, that his motive behind the ad was to conduct a survey to find out the number of individuals who would be interested in securing uncontested divorces at a cost below the current market rate and that he planned to use such information to attract young attorneys through the lure of an established market and that the $100 mentioned in the ad would be used to pay the salaries of these attorneys in securing divorces for middle income couples seeking a divorce. However, we are not impressed with McGiffert’s contention as to his subjective motive or intent in publishing the advertisement. We think the ad speaks for itself.

In Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975) we noted with approval the following quotation from § 159 The Law of Libel and Slander in the State of New York, Seelman, Yol. 1, which, incidentally, reflects the rule of our cases, and is, we think, applicable here, viz.:

“Words should be construed according to their plain and obvious meaning. The construction a court should adopt is to be derived from the expressions used, as from the whole scope and apparent object of the writer. It is the manner in which they will be most probably understood. Words are to be understood in their plain and popular sense, in court as elsewhere. Words are to be construed as understood by mankind in general, in their ordinary meaning. The language of the alleged libel is to be understood as used in the ordinary and most natural sense. [Footnotes omitted.]”

This Court held in McGraw v. Thomason, 265 Ala. 635, 93 So.2d 741 (1957):

“In determining their actionable character, the printed words are to be taken in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them. A forced construction is not to be put upon them in order to relieve the defendant from liability, nor are they to be subjected to the critical analysis of a trained legal mind, but must be construed and determined by the natural and probable effect on the mind of the average lay reader.”

We do not see, under any stretch of construction, how words in this ad, construed according to their plain and obvious meaning, and according to the sense in which they appear to have been used and the idea they are apparently adapted to convey to those who read them, could be read as conveying the notion that McGiffert was conducting a “survey.” Even McGif-fert himself, in his answer, does not contend that a reader of ordinary or average intelligence could construe the words “without attorney’s fee” to mean “with attorney’s fee.” For one to represent to the public that, for $100 plus court cost, one guaranteed to obtain a divorce if uncontested without attorney’s fees, seems clearly in violation of § 34-3-1, Code of 1975, which provides “if any person shall, without having become duly licensed to practice law, * * * practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer, he shall be guilty of a misdemeanor and fined not to exceed $500, or be imprisoned for a period not to exceed six months, or both.” It would seem to be clear that only a licensed lawyer may obtain an uncontested divorce for another pereon without violating the statute.

We see no uncertainty or ambiguity which needs to be resolved and thus no genuine issue of fact is presented with regard to the meaning of the advertisement. Neither Loveless v. Graddick, supra, nor African Methodist Episcopal Church v. St. Paul Methodist Church of Selmont, 295 Ala. 343, 329 So.2d 542 (1976) nor Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976) is in conflict with this holding. Loveless v. Graddick, supra, involved a suit for libel in which the defendant was accused of running an advertisement which by innuendo charged plaintiff with criminal fraud. We held that an issue of fact was presented as to whether or not the advertisement charged criminal fraud and, moreover, pointed out that usually the question of “malice” is for the jury. In African Methodist Episcopal Church, supra, it was held that a genuine issue of material fact, as to whether parties to a deed intended for the national religious organization or the local church to have an interest in the property, precluded summary judgment as a matter of law. In Willis, supra, we held that disposition of the issue of “actual malice” by summary judgment in a defamation action is generally inappropriate, although in that case where there was no proof of malice offered at all, we held summary judgment to be appropriate.

We move now to consider the propriety of granting summary judgment for the cross-defendants Judge Macon and Hornsby. We opine that the trial court was correct in ruling in their favor.

In light of our view, already expressed, that this is a case where a person, not possessing a law license, holds himself out to the public as qualified to obtain divorces for a fee, a contract to publish such an advertisement would be unenforceable since the carrying out of the subject matter of the ad, i. e., obtaining divorces by a non-lawyer, would violate § 34-3-1, Code of 1975. Nor, do we find the record to disclose any fraud, force or coercion on the part of either cross-defendant to seek to prevent the publisher of the Wetumpka Herald from publishing the advertisement submitted by McGiffert. In fact, the publisher categorically stated that he had not talked to Hornsby about the matter at all.

In view of these reasons, it is not necessary that we address ourselves to the contention that Judge Macon had the right to do what he did for the public good or that he is immune from liability for his acts in investigating such matters. Thus, we pre-termit discussion of these contentions.

By way of conclusion, we mention three issues, which we have not heretofore addressed in this opinion, but which the appellant McGiffert contends precluded the grant of summary judgment. First, he contends he was deprived of his “first amendment” rights to free speech and association with similarly situated individuals in the common pursuit of obtaining low cost divorces. What we have said heretofore with reference to the ad should answer this contention. We see no first amendment violations in the court’s order. Next, appellant McGiffert insists that he was denied “due process” by the court’s order which set the three pending motions for summary judgment for submission without oral argument, although, he contends, an oral argument was held at the submission. We have inspected the record and find nothing therein to indicate that appellant McGiffert was denied his right to be present; in fact, the record indicates that he knew of the hearing but chose not to be present. We do not find that the transcript of the proceedings indicates any “hearing” in its technical sense was held. The cause was simply submitted to the court. Appellant McGiffert could have been present had he so chosen and since he did not, we do not see any deprivation of “due process” of law. Finally, it is contended that the court’s order went too far. We think the order was within the pleadings and prayers for relief.

It is thus that we conclude that the grant of various summary judgments by the trial court and the denial of appellant McGif-fert’s motion to dismiss and motion for summary judgment are due to be affirmed. As we have already indicated, in view of the result we reach, we pretermit discussion and ruling on motions to dismiss the appeal.

AFFIRMED.

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


author: JONES, Justice.

text:
    Ex parte CITY OF HUNTSVILLE HOSPITAL BOARD et al. In re CITY OF HUNTSVILLE HOSPITAL BOARD et al. v. LIMESTONE COUNTY et al.
    77-538.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Jan. 26, 1979.

      Elbert H. Parsons, Jr., Huntsville, for petitioners.
    Winston V. Legge, Jr., Patton, Latham & Legge, Athens, for respondents.
   JONES, Justice.

This is a Petition for a Writ of Mandamus commanding William D. Page, Judge of the Circuit Court of Madison County, Alabama, to vacate his order transferring this case to the Circuit Court of Limestone County, Alabama, and ordering this case restored to the docket of Madison County, Alabama. Writ granted.

On August 2, 1975, Jackie Crabtree was shot in return fire by a deputy sheriff of Limestone County, Alabama, within the confines of said county. The deputy called for an ambulance which, upon arrival, carried Jackie Crabtree to the Athens-Limestone Hospital. Subsequently, Jackie Crabtree was transferred to the Plaintiff hospital in Madison County, where he later died.

Plaintiffs, Petitioners, sought recovery from Limestone County, the Limestone County Commission, the members of the Limestone County Commission, individually, and Buddy Evans, individually, and as the Sheriff of Limestone County under three separate claims as follows: For an account stated, for goods sold and delivered, and for work and labor done.

Petitioners’ action was filed in the Circuit Court of Madison County, but was transferred to the Circuit Court of Limestone County on Defendants’ motion for change of venue, a copy of the record being sent to the Circuit Court of Limestone County.

The issue is: Where does venue lie in an action against a county on a claim for work and labor done?

Respondents rely on the case of Cullman County v. Blount County, 160 Ala. 319, 49 So. 315 (1909), in arguing that in an action against a county, venue is proper only in the courts of the defendant county. In the Cullman County case, the Court determined that venue was not proper in Blount County in an action brought by Blount County against Cullman County to recover one-half the cost of building a bridge, stating:

“In suits against counties, the rule as to venue is stated as follows in 11 Cyc. p. 611: ‘As a general rule all suits against a county must be brought in the courts of the defendant county. Courts of other counties have no jurisdiction in the absence of a statute conferring it, and it does not follow that because counties may bring a suit in another county that the same rule may be applied to them when defendant.’ It has been the uniform practice in this state, where a suit is brought against a county, to begin the suit in the court of the defendant county.”

The decision incorrectly treats venue and jurisdiction as one and the same. This is not the rule, as shown in Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974), where it is stated:

“Venue, as distinguished from jurisdiction, i. e., the power of a court to entertain an action, pertains to convenience, or policy considerations in the matter of allowing a court having jurisdiction to entertain a cause of action. [Cited case omitted.]”

At 20 C.J.S. Counties § 326, the rule concerning jurisdiction as followed in Cullman County v. Blount County, supra, is set out. Additionally, however, § 326 sets forth the rule for venue as follows:

“In the absence of legislative direction, the venue of an action by or against a county must be according to the course of the common law. In the absence of a special statute, the general statutory provisions apply. If there exists a special statute, however, the special statute controls.”

In essence, then, two questions must be answered in determining the proper forum for a lawsuit against a county: 1) What court has the proper jurisdiction (power) to entertain the action? 2) Where is the proper venue (place) for bringing the action?

In stating that courts of one county have no jurisdiction over other counties in the absence of statute, the Cullman County case overlooks the statute establishing such jurisdiction. When Cullman County was decided, § 123 of the 1907 Code of Alabama (§ 11-1-2, Ala.Code 1975), provided:

Every county is a body corporate, with power to sue or be sued in any court of record. (Emphasis added.)

Unlike statutes found in many states, our State has no statute which limits the jurisdiction in actions against a county to courts of record within the defendant county. What the Cullman County v. Blount County case overlooks in stating, “it does not follow that because counties may bring a suit in another county that the same rule may be applied to them when defendant,” is that our statutory law has long provided explicitly that defendant counties can be sued in any court of record. (Obviously, additional jurisdictional requisites, i. e., jurisdictional amount requirements, must be met. See Camp v. Marion County, 91 Ala. 240, 8 So. 786 (1891).)

Having addressed the distinction between jurisdiction and venue, we turn to the issue of venue in an action against the county on a claim for work and labor done. Section 6-3-3, Ala.Code 1975, specifically provides that all actions for work and labor done may be commenced in the county in which the work was done. No exception is made for actions against counties and we find that Madison County not only has jurisdiction in this action, but is also the proper venue.

We note that this State has a number of cases accepting the general rule that suits against a public official or against governmental bodies are ordinarily and properly maintained in the County of the official residence. Hardin v. Fullilove Excavating Co., Inc., 353 So.2d 779 (Ala.1977); Boswell v. Citronelle-Mobile Gathering, Inc., supra. These cases do not stand for the proposition that all actions against public officials of a county or the county itself must be brought in the defendant county. In fact, in Boswell v. Citronelle-Mobile Gathering, Inc., supra, we noted the general rule, but then found that, although the official residence of the Commissioner of Revenue for the State of Alabama was Montgomery County, venue in an action against the Commissioner in an action under this State’s Unclaimed Property Act was proper in the county of the residence of the aggrieved person (Mobile County). This was based on Tit. 47, § 334, Code of Alabama 1940 (presently, § 35-12-42, Ala.Code 1975), which specifically provided for venue in these actions. Likewise, the statute here involved provides that venue in all actions for work and labor done is proper in the county in which the work was done.

Respondents raise the issue whether mandamus to the Circuit Judge in Madison County is an appropriate remedy in light of the fact that the case and the record have already been transferred to the Circuit Court in Limestone County, pursuant to the granting of the Respondents’ motion for change of venue. Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953), held that, where the case filed has already been transmitted to another court, mandamus will not lie because the original court could not be ordered to do that which it could not legally do. The very recent case of Ex parte State of Alabama In re Medical Services Administration, etc., et al. v. Dickerson, et al., 362 So.2d 906 (Ala.1978), however, refused to follow Ex parte Morrow because that case would necessitate that needless and time-consuming motions be filed and pursued in the county to which the case was transferred. As noted in Dickerson, in addition to wasting time, this would be unjust, expensive, and not within the spirit of our present Alabama Rules of Civil Procedure. See Rule 1(c), ARCP.

We therefore, hold that mandamus to the Circuit Judge of Madison County is. appropriate in this case.

WRIT GRANTED.

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


author: BEATTY, Justice.

text:
    Ex parte NATIONAL INSURANCE UNDERWRITERS and Wheelair Insurance, Inc. Re Glenn SCHAFFER, d/b/a Glenn Schaffer Spraying Service v. NATIONAL INSURANCE UNDERWRITERS et al. and D. L. MARTIN, Jr. v. Glenn SCHAFFER, d/b/a Glenn Schaffer Spraying Service.
    77-788.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    As Modified on Denial of Rehearing Jan. 26, 1979.

      Robert S. Lamar, Jr., Montgomery, for petitioners.
    Steve Skipper, Cullman, for respondent, Glenn Schaffer, d/b/a Glenn Schaffer Spraying Service.
    Billy C. Burney, Circuit Judge, Lawrence County, Moulton, in opposition to Petition for Writ of Mandamus.
    W. H. Rogers, Moulton, for respondent, D. L. Martin, Jr. in opposition to Petition for Writ of Mandamus.
   BEATTY, Justice.

Petition of National Insurance Underwriters and Wheelair Insurance, Inc. for a writ of mandamus to The Honorable Billy C. Burney, Judge of the Circuit Court of Lawrence County. Writ denied.

This petition arose from two related civil actions. The first action was brought by D. L. Martin, Jr. against Glenn Schaffer, d/b/a Glenn Schaffer Spraying Service. That action sought damages which had allegedly resulted from Schaffer’s aerial dusting of Martin’s cotton crop in July, 1976, and was filed on August 24, 1977. The second action was brought by Glenn Schaf-fer, d/b/a Glenn Schaffer Spraying Service against National Insurance Underwriters and Wheelair Insurance, Inc., and was filed on January 27,1978. That was a declaratory judgment action and sought alternative relief, viz., either a declaration that Underwriters and Wheelair owed a duty to defend and indemnify Schaffer in the Martin action under two insurance contracts issued to Schaffer by them, or for an award of damages to Schaffer because of misrepresentations made to him by Underwriters and Wheelair in connection with his insurance coverage provided by them.

In response to the declaratory judgment action brought by Schaffer, National Insurance Underwriters alleged: (1) The damage claimed by Schaffer was excluded from coverage under the provisions of the policy; (2) Schaffer had failed to perform an express condition precedent contained in the insurance policies relating to the giving of notice of suit (the petitioners alleged that they had no notice of the Martin action until they were served with the summons and complaint in the Schaffer action); and (3) The damage alleged by Martin was subject to an exclusion from coverage contained in the policies.

A trial on the Schaffer action was held on April 10, 1978. Both Martin and Schaffer testified. Copies of the insurance policies were received in evidence. The parties also submitted briefs to the trial court. On July 14,1978 that court entered an order finding that the petitioners were under a duty to defend Schaffer on the Martin action and were liable for any judgment obtained by Martin against Schaffer to the extent provided in the contracts. Costs in the Schaf-fer action were taxed against the petitioners.

Following the trial court’s order the Martin case was set for trial on September 18, 1978. On August 30, 1978, however, the petitioners moved in the trial court for findings of fact, conclusions of law, judgment on Underwriters’ claims for relief and Schaffer’s claim for misrepresentation, and a certificate under Rule 54(b), ARCP. Then on September 18, 1978 the petitioners filed a motion for continuance of the Martin action. The trial court granted this motion, continuing that case until October 16, 1978. This petition was filed in this Court on September 19, 1978 and pending disposition thereof this Court stayed further proceedings in the Martin case.

The dispositive issue here is whether the petitioners were entitled as a matter of right to a Rule 54(b) certificate in order to allow them to appeal from the order of the trial court. They were not so entitled.

Our cases have allowed either the insured or the insurer to have determined by a declaratory judgment action whether an insurer was liable to defend an action already brought against the insured. U. S. Guarantee Co. v. Harrison & Owen Produce Co., 240 Ala. 186, 198 So. 240 (1940); State Farm Mutual Automobile Ins. Co. v. Cardwell, 250 Ala. 682, 36 So.2d 75 (1948), and we have approved injunctive relief against the pending action until the final outcome of the declaratory judgment proceeding. Reed v. Fidelity & Casualty Co. of New York, 254 Ala. 473, 48 So.2d 773 (1950). Schaffer followed that course in this case by filing his declaratory judgment action. The petitioners contend, however, that the trial court’s findings in that case did not amount to a final judgment on all of their claims, and therefore, because they were entitled to a final adjudication on their obligation to defend before entering upon that defense, they maintain that the trial court was obliged to dispose of all claims, or under Rule 54(b) should have entered a final judgment for some, thus enabling petitioners to appeal his order. That position is untenable in these circumstances.

Schaffer’s complaint contained two counts. The first asked for a declaration of his rights under the insurance policies and that these petitioners be held liable for the damage to property out of which Martin’s action against Schaffer arose. The second count alleged a misrepresentation by the petitioners regarding coverage afforded him on account of occurrences such as alleged in Martin’s action, and in this count Schaffer demanded $50,000.00 in compensatory and punitive damages, interest and costs. In response to this complaint the petitioners “counterclaimed”:

1. That the basis of Martin’s lawsuit was not covered by the policies issued to Schaffer;

2. That Schaffer had not performed express conditions precedent to coverage under the policies issued to him;

3. That Underwriters was not obligated to defend or to pay any judgment rendered in Martin’s action against Schaffer.

An examination of these allegations leads us to the conclusion that they are not “claims” cognizable under Rule 54(b). A claim under Rule 54(b) is an allegation indicating the existence of a cause of action in the sense of a claim “that facts exist which . . .• are recognized as entitling the claimant to judicial action in vindication of a right or in remedying a wrong.” Gold Seal Co. v. Weeks, 93 U.S. App.D.C. 249, 254, 209 F.2d 802, 807 (1954). Although that “claim” refers to a set of facts giving rise to legal rights in the claimant, and not mere legal theories of recovery based upon those facts, Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969), nevertheless it requires a cause of action, School District No. 5 v. Lundgren, 259 F.2d 101 (9th Cir. 1958), the underlying factual basis for recovery of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 540, 307 So.2d 6 (1975). None of the claims for relief advanced by the petitioners could be enforced independent of Schaffer’s claim under the insurance policies, which in itself was dependent upon Martin’s cause of action. The petitioners’ claims were, in actuality, defenses to Schaffer’s claim under the policy.

We need not decide whether the alternative claims of Schaffer, for either a declaration of coverage or damages for a misrepresentation of that coverage, stated separate claims, although it may be observed that a finding of one necessarily precludes enforcement of the other simply because a finding of coverage adjudicated his contention of a misrepresentation of that very coverage. The trial court’s order finding that under the “contemplation of the [insurance] contracts . . . the defendants . owes [sic] a duty to defend . plaintiff . . . and . . . they are liable for any judgments obtained against . plaintiff growing out of [the Martin action] to that extent provided in the contracts” was an adjudication of each of Schaffer’s alternative allegations. Such an order was in compliance with that part of Rule 54(b), ARCP whose reference to final judgment requires only “the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

It is clear, therefore, that the order of the trial court intended to adjudicate the alternative claim of Schaffer and the defenses of these petitioners to his declaratory action. However, the trial court also specifically held:

It is, FURTHER ORDERED AND ADJUDGED that the matters concerning other claims for relief in this lawsuit are held in abeyance pending the outcome of the case styled CV-77-234.

Thus, while the trial court could have made a Rule 54(b) certification that court was not under a clear legal duty to do so. Therefore the petitioner has not shown a clear legal right to relief by mandamus.

The petition for a writ of mandamus must be, and is, denied.

Writ denied.

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


text:
    INN OF OXFORD, INC., a corp. v. CITY OF OXFORD, Alabama, a Municipal Corp., et al.
    77-426.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Rehearing Denied Jan. 26, 1979.

      George L. Stevens, Jr., of Rutledge, Williams, Williams & Norton, Anniston, for appellant.
    John R. Phillips, of Phillips & Watson, Anniston, for appellees.
   SHORES, Justice.

The issue presented, but not reached by the court, in a prior appeal involving these same parties is squarely presented on this appeal. As stated in Dopson v. City of Oxford, 340 So.2d 777, 778 (Ala.1976):

“The issue which the parties present by this appeal is whether the city council of the City of Oxford, Alabama, has an irre-visable discretion to grant or withhold its approval of the issuance of an on-premises liquor license by the State ABC Board in order to prevent any such license from being granted to anyone.”

After its application for an on-premises liquor license was denied, the appellant filed an action for declaratory judgment against the City of Oxford, its Mayor and City Council, alleging that in an effort to keep the City of Oxford “dry,” the Oxford City Council has arbitrarily refused to ratify proposed ordinances providing for a procedure to govern the submission of applications for the purpose of obtaining the consent and approval of the Oxford City Council for the issuance of on-premises liquor licenses by the Alabama Alcoholic Beverage Control Board (ABC Board); the Oxford City Council has arbitrarily and in abuse of the discretion granted by §§ 28-3-133; 134; 135, Code of Alabama 1975, refused to give their consent and approval to the issuance of an on-premises liquor license by the ABC Board to appellant; and it was the policy of the Oxford City Council to deny arbitrarily and without justification, consent and approval to all applying entities for the sole purpose of preventing the sale of liquor by the drink within the City of Oxford.

The complaint sought a declaration that §§ 28-3-133; 134; 135, supra, do not grant to the governing body of a municipal corporation an irrevisable discretion to withhold their consent and approval of the issuance of on-premises liquor licenses by the ABC Board in order to prevent the issuance of any license to any eligible applicant within the corporate limits.

After a hearing on the merits, the trial court found that, although the appellant had made proper application to the City for its approval,

“ . . . the defendants have no intention of issuing or approving any person or firm for a liquor license in Oxford unless directed by Legislative Act or Court Order. At the present time this Court is of opinion this is within their discretion as the duly elected Council and Mayor of the City of Oxford. This Court finds the law of this State as to the issuance of liquor license is stated in Paulson[’s] Steerhead Restaurant, Inc. vs. Morgan, 273 Ala. 235 [139 So.2d 330] [1962], ‘The Court will not inquire into the motives of the members of the Municipal Council in exercising a legislative discretion, except to examine the records of the council . . . . The discretion to approve or disapprove the issuance of a restaurant liquor license, conferred on the municipal governing body by Title 29 (now 28-3-133, 134, 135) is irrevisable and is of the nature of a legislative discretion.’
“ . . . Assuming the systematic and arbitrary denial of all applicants to be true, it is still within the pronouncements of the Paulson[’s] Steerhead Restaurant case.”

The trial court then dismissed the complaint and this appeal followed.

It is clear from the trial court’s order that it believed it had no authority to revise a decision of the City in withholding approval of a liquor license even though such action was arbitrary, capricious and systematic, because of this court’s holding in Paulson’s Steerhead Restaurant, supra, cited in the order. That case did hold that a city’s discretion in this area was “irrevisa-ble.” That holding itself, however, has, since this case was tried, been “revised.” In Black v. Pike County Commission, 360 So.2d 303 (Ala.1978), we held that § 28-3-133 as construed in Paulson’s does not grant counties (nor municipalities) an irrevisable discretion to deny approval of liquor licenses. We noted that, while the scope of the state’s power to regulate the sale of liquor is admittedly broader than its power to regulate an ordinary lawful business, even so, in the exercise of that power, neither the state nor local government units are exempt from constitutional limitations, whether it be the Commerce Clause, the Due Process Clause or Equal Protection Clause, citing Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Paul-son’s was overruled to the extent that it denied judicial review of violations of constitutional rights.

The appellant contends that the City withheld its approval of all applications for the sale of liquor by the drink within the City for the sole purpose of keeping the City “dry.” The trial court held that, assuming that was true, it had no authority under Paulson’s to review the City’s action. As previously noted in Black v. Pike County Commission, supra, arbitrary action of a local government unit in withholding its approval of a liquor license is subject to judicial review.

The judgment appealed from is reversed and the cause remanded to the trial court for its consideration consistent with the views expressed herein and in Black v. Pike County Commission, supra.

REVERSED AND REMANDED.

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


text:
    L. B. GWIN and Ruth Gwin v. BRISTOL STEEL & IRON WORKS, INC., Nashville Bridge Company and Bristol Bessemer Federal Credit Union et al.
    77-478.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Rehearing Denied Jan. 26, 1979.

      William J. Wynn, III, Birmingham, for appellants.
    J. W. Patton, Jr., of Stone, Patton & Kierce, Bessemer, for appellees.
   JONES, Justice.

Plaintiffs below challenge the trial Court’s grant of summary judgment, dismissing their claim for equitable relief in which they seek to set aside the closing of two public streets by the Defendants pursuant to Title 56, § 17, Code 1940 (§ 35-2-54, Code 1975). We reverse and remand.

Defendants (other than the City and its officials) own property on both sides of South 20th Street as well as both sides of 17th Avenue near the point of intersection of these two public streets in the City of Bessemer, Alabama. The Plaintiffs, Mr. and Mrs. L. B. Gwin, own four adjoining commercial lots adjacent to Defendants’ property, and also fronting South 20th Street. The legal descriptions of all of the property in question, including the public streets, are referenced to a plat and plan of one of the original subdivision additions to Bessemer, Alabama, of the Bessemer Coal, Iron & Land Company.

The land owner Defendants filed a declaration with the City to vacate those portions of South 20th Street and 17th Avenue which are abutted on both sides by their commonly-owned property. Whereupon, the City, by resolution of its City Commission, consented to the vacation of these streets as described in the declaration. (From our understanding of the plat referenced in the legal description of the portion of the streets declared as vacated, it appears that IV2 blocks of 17th Avenue and about 1% blocks of South 20th Street, including the intersection of these two streets, were closed.) The point of closing of 20th Street is the point where Plaintiffs’ four-lot parcel corners on this public thoroughfare. Defendants constructed a fence along the outer boundary of their property and across 20th Street.

At the time of its closing, 20th Street was open from this fence in the direction of 16th Avenue which gave Plaintiffs access to their property. Subsequently, however, this access was effectively cut off by the construction of Interstate 59, leaving Plaintiffs only one possible access: A 12-foot alley, running from the point of closing of 17th Avenue behind the property of the parties (other than the City and its officials) to this litigation.

Defendants supported their Motion for Summary Judgment by affidavit of counsel to the effect that Title 56, § 17, had been fully complied with and that, at the time of the Declaration and Consent of the City, Plaintiffs were not denied reasonable access to their property by virtue of the closing of 20th Street. By counter affidavit, Plaintiffs reply, in substance, that all parties to the vacation proceedings were aware of the proposed location of 1-59 well in advance of the closing of 20th Street; hence, the Court acted prematurely in granting summary judgment because reasonable access, under these circumstances, is, at the very least, a fact question.

As briefs and oral arguments of counsel indicate, and as our independent research verifies, this area of the law (vacation of public streets in a non-eminent domain context) has been confusing and unsettled for at least the past 50 years. The common law rule was relatively simple and consistently applied. The confusion in our case law seems to have had its genesis in" efforts of the courts to literally apply the legislative delegation by the State to municipalities and counties of the authority to vacate public streets.

This confusion is dramatized by two cases less than three years apart: Chichester v. Kroman, 221 Ala. 203, 128 So. 166 (1930), and Thetford v. Town of Cioverdale, 217 Ala. 241, 115 So. 165 (1927). Although the principles that underpin Chichester are the antithesis of those opined in Thetford, the latter spoke not of overruling the former, only of “[putting] a limitation upon” its application. At some risk of oversimplification, it may be stated that our case law consists of two separate and independent lines of cases dealing with the private right of abutting property owners to vacate public roadways.

A further analysis of the cases will be less useful than our efforts here to restate what we perceive to be sound principles of property law in conjunction with established rules of legislative interpretation as applied to the case at hand. Initially, we observe that the issue addressed by Mr. Justice Sayre in Thetford is identical to the issue here presented. The fact that the parties are reversed (the plaintiff in Thet-ford was in the position of defendants here) is immaterial. Nor is it of material consequence that the plaintiff in Thetford was seeking to proceed under Title 56, § 21 (35-2-58, Code 1975), rather than § 17, as in this case. The elements of the applicable test cannot vary solely because § 17 speaks of proceeding with the consent of the municipality, while § 21 provides a remedy through a court action in the absence of such consent. The rights of other attin-gent owners are the same in either event.

We are impressed with the soundness of the basic principles espoused in Thetford. Its central thrust is clear and forthright: Statutes in derogation of the common law prohibition against the vacation of public ways will be interpreted to protect the property interests of non-consenting property owners affected by the proposed closing, subject only to the rule of remoteness. Not only is this a rule of reason, but it is mandated by the most basic application of constitutional due process.

In Thetford, as here, the protestors purchased their property referable to a subdivision map which definitively laid out the parcels by lot and block number as well as the designated scheme of dedicated public streets. As Mr: Justice Sayre eloquently pointed out, it is no consequence that they were not abutting owners to that specific portion proposed to be closed, nor that, upon its vacation as a public street, the objecting parties had other reasonable access to their property.

The legal interest acquired by Mr. and Mrs. Gwin in South 20th Street (as well as all the other streets reasonably incident to the use and enjoyment of their property) by virtue of their purchase of Lots 5, 6, 7 and 8 is not subject to divestiture by the unilateral will of another except for public necessity; and this rule is not altered by the act of the municipality in tendering its consent to the declaration to vacate. For the most recent decision of this Court, consistent with our holding today, see Hall v. Polk, 363 So.2d 300 (Ala.1978). See also McPhillips v. Brodbeck, 289 Ala. 148, 266 So.2d 592 (1972).

We reject the contention of Appellees that, at the time of closing, 1-59 had not yet closed off access of Appellants from the other direction; and this for the reason that our holding would be the same whether or not South 20th Street remained open from that direction. It is the right of the Gwins to have access to their property from either direction along 20th Street that is paramount; and this right, under the undisputed facts of this case, has been violated by the Defendants to this action.

REVERSED AND REMANDED.

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

      . For the settled rule in eminent domain cases, see Markstein v. City of Birmingham, 286 Ala. 551, 243 So.2d 661 (1971). Although the rule in this narrow area appears well settled, unquestionably the fusion of these principles into non-eminent domain cases has contributed to the confusion. The later-cited Chichester case is but an example.

      . It is interesting, though not enlightening, to note that of the four Justices that made up the Court in each case, only the writer is different — the concurring Justices are the same in each case.

      . See also Title 56, § 32 (23-4-20, Code 1975), which is identical in effect to § 17 except that § 32 makes no reference to “any map, plat or survey.”


text:
    Allie M. BRUNER et al. v. Billy L. WALKER et al.
    77-549.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Rehearing Denied Jan. 26, 1979.

      Luther H. Waller, Jr., Montgomery, for appellants.
    William Rives Blanchard, Jr., Montgomery, for appellees.
   SHORES, Justice.

In 1964, Reverend Billy L. Walker acquired a large portion of Lot 3 according to the Plat of Beauvoir Gardens, Montgomery County, Alabama. The northern portion of the Walker parcel adjoined Fleming Road and was divided into Lots A and B, designated as 201 Fleming Road and 207 Fleming Road, respectively. When Walker acquired the parcel, a house and a well existed on each lot. All of the Walker parcel, except Lots A and B, was immediately deeded to Berea Church and construction of a sanctuary for the church was begun. In 1965, municipal water and sewer lines were laid across Lot B, 207 Fleming Road, to the sanctuary. Both the house on Lot B and the sanctuary were serviced by a common meter in the name of Berea Church. Walker admits that there is no written evidence of his having granted the church an easement for water or sewer lines, but insists that he signed what he believed to be an easement, presented him by the City of Montgomery, Alabama. A thorough search by Walker, his attorney and the City produced no such document or any other evidence of its existence or content.

On March 25, 1971, Walker and his wife sold Lots A and B to Jesse R. and Allie M. Bruner. Jesse Bruner knew that water and sewer lines were laid from Fleming Road to the church and that the house on Lot B was connected to the church’s meter. The parties also agree that the Bruners gave their permission for this arrangement to continue. Jesse Bruner later died. Lot B is currently owned by his widow, Allie, and two sons, Ellis and Ed.

On August 11, 1977, after the church refused to remove the water and sewer lines from Lot B, the Bruners filed an action to quiet title against Walker and Berea Church. The trial court heard the matter ore tenus and denied the Bruners’ prayer for relief. The court held that an “apparent easement” for the benefit of the church existed prior to the Bruners’ purchase of Lots A and B, that the Bruners had knowledge of the easement and, therefore, purchased the property subject to it. The Bruners appealed. We reverse.

It has been long recognized that one who purchases land subject to, or with notice of, an easement, takes the estate subject to the easement. Brown v. Alabama Power Co., 275 Ala. 467, 156 So.2d 153 (1963); Scheuer v. Britt, 217 Ala. 196, 115 So. 237 (1928). This principle is intended to prevent the purchaser from escaping his obligation to honor an easement which, in good conscience, he is bound to respect. It is not intended to create an estate in land but rather to protect and enforce the rights of a party in an already existing estate. Therefore, to invoke this principle, it must be affirmatively shown that a valid easement actually existed and that the purchaser took the land either subject to, or with notice of, the easement.

The trial court held that an “apparent easement” existed and that the Bruners took the property with knowledge of its existence. As defined in 28 C.J.S. Easements § 3, pp. 628 and 629:

“ . . . ‘Apparent easement’ is another name for a continuous easement; and is an easement the existence of which appears from the construction or condition of one of the tenements, so as to be capable of being seen or known on inspection.
“A continuous easement is one of which the enjoyment may be continued without the necessity of any interference by man. It depends on some artificial structure on, or natural formation of, the servient tenement, obvious and permanent, which constitutes the easement or is the means of enjoying it.”

Granted, if Berea Church held an apparent easement across Lot B, 207 Fleming Road, the principle espoused in Brown, supra, would subjugate the Bruners’ interest to it. However, no apparent easement as defined in the law existed when the Bruners acquired the property.

Our cases consistently hold that an easement can be created in only three ways: By deed, by prescription or by adverse use for the statutory period. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973); Kirkland v. Kirkland, 281 Ala. 42, 198 So.2d 771 (1967); Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 562, 165 So.2d 112 (1964). Since the church’s use was undisputedly with the permission of, first, Walker and, then, the Bruners, the acquisition of an easement by either prescription or adverse use for the statutory period was not possible. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974); Smith v. Persons, 285 Ala. 48, 228 So.2d 806 (1968); White v. Williams, 260 Ala. 182, 69 So.2d 847 (1954).

Was an easement created in favor of Berea Church by deed? As an interest in land, the conveyance of an easement is ordinarily covered by the Statute of Frauds, § 8-9-2(5), Code of Alabama 1975, and must be demonstrated by a writing. Carter v. Stringfellow, 293 Ala. 525, 306 So.2d 273 (1975); Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492 (1954).

Walker and Berea Church admit that the deed granting Lot B, 207 Fleming Road, to the Bruners “reserved no easement or other interest to the Grantor.” They also admit to having no written document evidencing any easement. Walker, however, insists that he signed an easement for water and sewer lines to pass across Lot B at the request of the City of Montgomery. He asserts that the document was given to a City employee for safekeeping. Although a search produced no such document, Walker contends that evidence was sufficient to support the trial court’s finding that an easement existed but that the instrument creating it had been lost. We disagree.

It is generally held that, in order to establish a lost deed, the evidence of the former existence, execution, delivery, loss and contents of the lost deed must be clear and convincing. Turner v. Steber, 259 Ala. 509, 66 So.2d 781 (1953); Plann v. Morris, 239 Ala. 176, 194 So. 518 (1940); Shorter v. Sheppard, 33 Ala. 648 (1859). See, also: 54 C.J.S. Lost Instruments § 13e, p. 814. Walker did not produce evidence which would support a finding that the easement was created by a lost deed, nor did the trial court so find. The evidence will not support an affirmance on this theory.

Finally, Walker contends that the apparent easement was created by implication. As stated in Walker v. Clifford, 128 Ala. 67, 73, 74, 29 So. 588, 591 (1900):

“ . . . if the owner of both the quasi dominant and quasi servient tenements conveys the former, reserving the latter, all such continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property granted pass to the grantee, giving rise to easements by implied grant. . . . ”

The recognition of an implied easement is based on the existence of a necessary and beneficial use, running from the quasi ser-vient tenement to the quasi dominant tenement, at the time the tenements are severed by a valid conveyance. If such a use did not exist at the severance of the tenement, it cannot be the basis for the later placing of a burden on land. See, generally: 28 C.J.S. Easements § 35, n. 26-29, p. 699. Therefore, our inquiry must focus on the use of the Walker parcel at the time the tenement was severed by Walker’s grant to the Berea Church.

When Walker acquired the entire tenement, the houses on Lots A and B were serviced by wells and the remainder of the parcel was undeveloped. This was also the condition and use to the property when Lots A and B were severed from the whole by Walker’s grant to Berea Church. The water and sewer lines on which this controversy focuses had not been laid across Lot B. In fact, the church building did not exist at the time of the severance. Therefore, no necessary and beneficial use existed from which an easement could be implied by the grant severing the tenement. That being so, no implied easement was created by the grant from Walker to Berea Church. Walker v. Clifford, supra. See, also, Hamby v. Stepleton, 221 Ala. 536, 130 So. 76 (1930) (distinguishing the general doctrine of implied easements from the recognition of an implied right-of-way to an otherwise landlocked estate).

No valid easement existed at the time Walker granted Lots A and B to the Bruners. The Bruners’ knowledge of a permissive use by the church, without more, does not justify subjugating their interest in Lot B to a claim of right asserted by the church. In doing so, the trial court committed error. We, therefore, reverse and remand.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, JONES and BEATTY, JJ., concur.