text:
    Arthur C. PARTEN et al. v. Lewis H. COMPTON.
    SC 2537.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Wyman O. Gilmore, Grove Hill, for appellants.
    Robert J. Teel and Frank S. Teel, Rockford, for appellee.
   BEATTY, Justice.

This is an appeal from a judgment of the Choctaw County Circuit Court upholding the validity of a certain last will.

The case has been submitted to us on both procedural and substantive grounds, and because the procedural aspect raises a jurisdictional question, we must attend to it initially.

Briefly, it is the appellee’s contention that this appeal was not timely filed and therefore this Court has no jurisdiction to consider it. Appellee directs us to the date of the trial court’s final judgment, October 15, 1976, the timely filing of a motion for a new trial on November 12, 1976, and to the application of Rule 59.1, ARCP:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.

Appellee maintains that ninety days later, or on February 10, 1977, the motion for a new trial had not been disposed of nor extended under Rule 59.1, and as a consequence was denied by operation of law. Therefore, says the appellee, the time for appealing within forty-two days, Rule 4(a), ARAP, began to run on February 10, 1977, which would have expired on March 24, 1977. But appellee maintains that in fact no notice of appeal, as required by Rule 3(a), ARAP, was filed until April 1, 1977.

Appellants, on the other hand, insist that a timely notice of appeal was filed, and support their position with affidavits of counsel and personnel in the circuit clerk’s office, and other circumstances which we need not relate here.

Of course, we must dismiss the appeal if the notice of appeal was not timely filed. Rule 2(a), ARAP; Noble v. Noble, 55 Ala. App. 365, 315 So.2d 601 (1975). We have carefully reviewed the evidence before us, however, and we are convinced that a factual issue remains upon which the trial court should make findings, viz., whether the notice of appeal was timely filed as our procedural rules and authorities require. Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940); Ex parte Cunningham, 19 Ala.App. 584, 99 So. 834 (1924); Falley v. Falley, 163 Ala. 626, 50 So. 894 (1909). Accordingly, we remand this case to the circuit court with directions to that court to make findings on the factual issue pertaining to the filing of the notice of appeal, and to establish a supplemental record. Constitution of 1901, Amendment No. 328, Art. VI, § 6.02(b); In re Satterwhite, No. SC 2407, Ala., September 9, 1977, 11 ABR 2444; Rule 1, ARAP.

REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    James W. LEAGUE v. S. O. McDONALD.
    SC 2555.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      J. Robert Miller of Culver & Miller, Huntsville, for appellant.
    J. Allen Brinkley of Johnston & Johnston, Huntsville, for appellee.
   TORBERT, Chief Justice.

This is an appeal from a judgment of the Madison County Circuit Court wherein three cases were consolidated for trial. Evidence was taken ore tenus and judgment rendered against appellant James W. League in the amount of $15,400.10. No specification was made by the trial court as to what amounts of this award related to each of the three actions.

The pertinent facts of the first action consolidated for trial are as follows. Dora and S. O. McDonald, appellee, were in partnership conducting a construction business in Huntsville, Alabama. On October 28, 1959 the McDonalds entered into a contract with League for the construction of a trailer park on League’s property. This agreement was cancelled by the parties and then reinstated on December 20, 1960.

Under the terms of the contract, League agreed to pay the actual cost of the labor and materials used in constructing the trailer park plus fifty percent over and above such cost. The sum of $1,500.00 in cash was paid by League to the McDonalds immediately upon execution of the contract. The balance of the debt was to be paid in the following manner:

“The Contractor hereby agrees to accept, as the balance due on this contract, fifty (50%) of the net income from the operation of said trailer park until said balance has been paid in full. The net profits are to be calculated at the end of each month, and the payments are to be made on or before the tenth day of each month.”

Construction of the trailer park was completed in January, 1962. League made his last payment' to the McDonalds on October 21, 1964, claiming that the debt had been entirely paid. Shortly thereafter, League also demanded that the McDonalds either remove several trailers from spaces in the trailer park which they had previously used rent-free, or begin paying rent for the spaces. The amount paid by League to the McDonalds under the construction contract through October, 1964, was $9,712.10.

On August 29, 1973 S. 0. McDonald filed suit for breach of this contract, alleging that the trailer park had been constructed at a cost of $34,524.76, and that League had failed to pay the outstanding balance due under the terms of the contract. League’s answer stated that he had paid all sums due to the McDonalds and that the action was barred by the statute of limitations.

This suit, Case Number 73-1094 in the court below, was revived by Dora McDonald after the death of S. 0. McDonald in her capacity as administratrix of her husband’s estate.

The second of the three cases consolidated at trial is a suit filed May 2, 1963, by Dora McDonald against League for the sum of $2,744.68, allegedly owed to the Mc-Donalds for labor and materials furnished to League for the construction of a sewer line across League’s property. This property is the same land upon which the trailer park was constructed. Mrs. McDonald had previously filed a lien in the Madison County Probate Court on April 3, 1963.

The third suit is also an action by Mrs. McDonald against League. In this suit, which was filed December 18, 1964, Mrs. McDonald claimed that $1,165.00 was owed to her for labor and materials furnished to League in 1964 to build a house on League’s property. A materialman’s lien had been filed by Mrs. McDonald on August 19, 1964.

As previously stated, the trial court did not itemize its award of $15,400.10. The decree reads as follows:

“This cause consolidates Case Numbers 18,111; 19,786 and 73-1094 and the Court having proceeded to take testimony in said cause is of the opinion that the Plaintiff is entitled to have and recover of the Defendant the sum of $17,800.10; and that the Defendant is entitled to a credit of $2,400.00 for dirt, leaving the Plaintiff entitled to receive a total sum of, from Defendant James W. League, $15,400.10.”

Where several actions are ordered to be consolidated for trial, each action retains its separate identity and thus requires the entry of a separate judgment. Ala.R. Civ.P. 42(a) and Committee Comments; Teague v. Motes, 57 Ala.App. 609, 330 So.2d 434 (1976). We therefore reverse and remand this judgment to the trial court for entry of separate judgments in each of the three cases consolidated for trial.

This result is in accord with federal decisions interpreting Rule 42(a) of the Federal Rules of Civil Procedure, which rule is identical to Rule 42(a) of the Alabama Rules of Civil Procedure. See, e. g., Oikarinen v. Alexian Brothers, 342 F.2d 155 (3d Cir. 1965); Zdanok v. Glidden Company, Durkee Famous Foods Division, 327 F.2d 944 (2d Cir. 1964); Koenig v. Frank’s Plastering Company, 227 F.Supp. 849 (D.Neb.1964). See also 9 Wright & Miller, Federal Practice and Procedure: Civil § 2382 (1971).

We must address one further issue in this appeal. It is impossible to determine from the wording of the decree what amount, if any, was awarded by the trial court as a judgment in each of the three cases. However, as the amount sought in the two lien suits totals only $3,909.68, it is obvious to this court that the award was based either totally or in part on the contract action. It is League’s position that the trial court’s inclusion in its award of any sum based on the contract action constitutes error because that action, Case Number 73-1094, was barred by the six-year statute of limitations applicable to promises in writing not under seal. Tit. 7, § 21, Code of Alabama 1940 (§ 6-2-34, Code 1975). We agree.

A statute of limitations begins to run in actions on contracts when the contract is breached and a cause of action therefore accrues. Tit. 7, § 18, Code of Alabama 1940 (§ 6-2-30, Code 1975); Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). Breach of the contract presently at issue occurred when League refused to pay anything further to the McDonalds for the construction of the trailer park because he believed that the debt had been entirely paid. As previously noted, this occurred in late 1964 according to League’s testimony. The action was thus barred by the six-year statute of limitations because suit was not filed until August, 1973.

We recognize our oft stated rule of review that, when the trial court hears the evidence ore tenus, its judgment is presumed correct and will not be disturbed on appeal unless plainly and palpably erroneous. Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974). However, this rule is without application when the trial court erroneously applies the law to the facts before it. Price v. South Central Bell, 294 Ala. 144, 313 So.2d 184 (1975).

In summary, we reverse this cause for entry of separate judgments in each of the actions consolidated for trial. On remand, the trial court is instructed to enter judgment in favor of League in the contract action. We cannot conclude from the record on appeal that the trial court award included amounts based upon the lien claims. Therefore, the cause is remanded to the trial court for entry of separate judgments in the two lien suits.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: SHORES, Justice.

text:
    Bessie K. MONTGOMERY v. A. N. PEDDY.
    SC 2712.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Norborne C. Stone, Jr., Bay Minette, for appellant.
    James R. Owen, of Owen, Ball & Wills, Bay Minette, for appellee.
   SHORES, Justice.

This is the second time this case has been before us. Peddy v. Montgomery, 345 So.2d 631 (Ala.1977). On remand, Peddy filed a motion for summary judgment based upon the pleadings, depositions and affidavits previously submitted and this court’s opinion in Peddy v. Montgomery, supra. The trial court granted his motion and Montgomery appealed.

The following is not disputed:

In early February, 1972, Alice Wyllie told Peddy that Montgomery had some property for sale. Peddy examined the property with Wyllie and asked her to find out how much Montgomery wanted for it. After some discussion, Montgomery told Wyllie that she would sell the property to Peddy for $39,000, 29% of which would be paid on closing and the balance due in five equal annual installments plus 6%. Wyllie relayed this information to Peddy, who wrote his check in the amount of $11,310 (29% of the purchase price) payable to Wyllie and Montgomery.

On February 18, 1972, Montgomery executed an instrument prepared, at her request, by her attorney, which was a printed form captioned “Earnest Money Receipt.” The entire instrument is as follows:

“Earnest Money Receipt
“Fairhope, Alabama, February 18,1972
“RECEIVED OF A. N. Peddy “hereinafter mentioned as the Purchaser, the sum of ELEVEN THOUSAND THREE HUNDRED TEN & NQ/100 (’811.310.001 Dollars as earnest money and in part payment for the purchase of the following described real estate situated in Fairhope.
“County of Baldwin
“State of Alabama
“and more particularly described as follows, to-wit: All property of the Seller located on the Northwest corner of Morphy Avenue and Grenno Road. Fair-bone. Alabama which we have this day sold to the Purchaser for the sum of THIRTY — NINE THOUSAND AND NQ/100_(839.000.001 -Dollars on the following terms, to-wit: The sum of ELEVEN THOUSAND THREE HUNDRED TEN & NQ/100 (’Sll.310.001 Dollars as hereinabove receipted for and ($_ Dollars upon acceptance of title and delivery of__ balance of TWENTY-SEVEN THOUSAND SIX HUNDRED NINETY AND NQ/100 ($27.690.001 DOLLARS to be payable in five 151 equal annual installments of FIVE THOUSAND FIVE HUNDRED THIRTY-EIGHT ($5.538.091 DOT,LARS nlua interest at the rate of SIX (6%1 PER CENT per annum on the unpaid balance.
“At the option of the seller, xxxxxxxxxxxxxxxxxx Title Insurance Policy from a reliable Abstract Company showing good and marketable title is to be furnished the Purchaser forthwith.
“It is agreed that if the owner does not approve the above sale, or if the title to the said premises is not marketable, or cannot be made so within thirty days after notice containing written statement of defects is delivered to owner, the earnest money herein receipted for shall be refunded. But if the above sale is approved by the owner and the title to the said premises is marketable, and the purchaser neglects or refuses to comply with any of the conditions of this sale, and to make payments promptly, as hereinabove set forth, then the earnest money herein receipted for shall be forfeited to the undersigned agent to the extent of the agreed upon commission, and the residue in the owner as liquidated damages, and this contract shall thereupon be of no further binding effect.
“The property is to be conveyed by sufficient warranty deed and be free and clear of all liens and incumbrances to date xxxxxxxxxxxxxxxxxxxxxxxxx
Earnest money to be held bv Alice Wvllie and Bessie Montgomery until final closing._ “The taxes for_ and rents, interest and premiums for existing insurance shall be adjusted pro rata between the seller and the purchaser on the calendar year basis, as of the date of the consummation of the sale herein, or of delivery of possession, whichever first happens.
“Time is the essence of this contract. _ _Agent. “I hereby agree to purchase the above property and to pay the price of _ -($_) Dollars as specified above.
“Purchaser_ “Address _ Phone _ _, 19_
“I hereby approve and accept the sale of the above described property and the price and conditions as set forth in above contract and agree to furnish Abstract or Title Insurance Policy continued to date, showing good and marketable title, also the said Warranty Deed, when stated, and agree to pay forthwith to the above named agent a commission amounting to $_ for services rendered and to be rendered in this transaction.
“Owner /s/ Bessie K. Montgomery “Address_Phone_”

Thereafter, Montgomery’s attorney advised Wyllie that there was a cloud on the title; and it could be anywhere from ninety days to a year before it was cleared. Montgomery told her attorney to file a suit to quiet title. Wyllie suggested to Montgomery that they should put the $11,310 in an interest bearing account until the title was cleared. They both endorsed the check and bought a certificate of deposit in Peddy’s name. Montgomery said in deposition that the agreement at that time was to go ahead with the transaction as soon as the title was cleared. Wyllie advised Peddy by letter in March, 1972, that there was a problem with the title and also advised him that the down payment had been put in the bank. The bank wrote Peddy saying:

“Alice Wyllie informs us that it will be approximately four to six months before your real estate transaction with Bessie Montgomery can be closed out.
“We have suggested to Alice that you should put this money in a ninety day savings certificate so that you can draw interest each quarter at 5%. In order that the certificate can be cashed at the time the real estate transaction is ready to close, we have prepared a signature card for you and Alice to sign. This means that Alice can cash this certificate in order to pay the proceeds to Bessie Montgomery.
a »

Title to the property was finally cleared in November, 1973. In that month, Peddy called upon Montgomery to dose the transaction. She refused to do so; and, in deposition, said: “I told him I had changed my mind.” She also admitted, in deposition, that she had agreed to sell the property to him in February, 1972, and that the agreement was to hold the earnest money in the bank until the title was cleared. Her testimony was that she had changed her mind during the time the title was being cleared. Peddy said, in deposition, that she told him that she had been advised that she would be foolish to sell the property at the price they had agreed upon.

On appeal, Montgomery argues that the trial court erred in granting Ped-dy’s motion for summary judgment because a genuine issue of fact exists as to whether there was a contract between these parties for the sale of the land involved. We disagree. The undisputed facts show that there was a contract for the sale of the lands described. Although, perhaps inartfully drawn, the instrument prepared by Montgomery’s attorney and executed by her, and Peddy’s check in the amount referred to in that instrument, taken together, clearly show that these parties reached an agreement. It is not necessary, under our cases, that the agreement be in any particular form provided the substance of the agreement is stated. In Alba v. Strong, 94 Ala. 163, 165, 10 So. 242, 242-243 (1891), this court made the following observations:

“The following propositions must be re- • garded as settled by the former decisions of this court beyond controversy: First, that to authorize the specific enforcement of an agreement to sell land, all the terms of the agreement must have been agreed on, leaving nothing for negotiation. Second, that all the terms of the agreement viz., the names of the parties, the subject-matter of the contract, the consideration and the promise, must be in writing . . . Third, that it is not essential that the paper evidence of the agreement be in any particular form, provided it contain the substance, as stated above. Fourth, that the written evidence of the terms of the agreement need not all be expressed in one paper. ...”

This court has frequently held that specific performance may be ordered where the contract is just, fair and reasonable, and reasonably certain in respect to the subject matter, terms and founded on a valuable consideration. Alabama Central Railroad Co. v. Long, 158 Ala. 301, 48 So. 363 (1909); Carlisle v. Carlisle, 77 Ala. 339 (1884); Moon’s Adm’r v. Crowder, 72 Ala. 79 (1882).

When tested by the criteria set out in prior cases, we cannot find that the trial court abused its discretion in ordering specific performance in this case.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Calvin M. WHITESELL v. The CITY OF MONTGOMERY, a Municipal Corporation.
    77-52.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Calvin M. Whitesell, pro se.
    Randall C. Morgan, Montgomery, for ap-pellee.
   SHORES, Justice.

The City of Montgomery brought this action against Whitesell alleging that he owned property upon part of which a cemetery exists, and that the condition of the property constituted a nuisance detrimental to the public health and welfare.

Whitesell cleared part of the property, but refused to clear that part which contained graves. It was his contention that he did not own that part of the land upon which graves are situated.

Whitesell acquired the property in 1967 by deed which, after describing the entire property, contains the following:

“And for the same consideration, there is hereby assigned to the Grantee herein all of the Grantor’s rights in and to that certain lease between Lincoln Park Cemetery Company and White Chapel Brown-Service Funeral Homes, Inc., recorded in the Office of the Judge of Probate of Montgomery County, Alabama, in Deed Book 536, at Page 318.
“This conveyance is subject to the aforesaid lease.
“This conveyance is also subject to burial lots heretofore conveyed by Lincoln Park Cemetery Company.”

The trial court, after hearing the evidence, found that Whitesell was the owner of:

. . that certain public cemetery located in the City of Montgomery, and known as ‘Lincoln Park Cemetery’ by vir.tue of a Corporation Warranty Deed dated March 28,1967 from Continental Company, Inc., and that the purchaser of a lot in said public cemetery, though the deed be absolute in form, does not convey title thereto, but the mere privilege or license to make interments in the lot so purchased, and as such owner, the Defendant, Calvin M. Whitesell, must maintain said cemetery in a safe, decent and healthful condition.”
Whitesell appealed from this judgment. We affirm.

Whitesell argues that the persons who bought the burial plots are the fee simple owners of those lots; that lots previously conveyed were expressly excluded in the conveyance to him; and that he, therefore, is under no obligation to maintain them because he does not own them. In support of this argument, he offered “sample deeds” to burial plots dated in 1910, 1918 and 1945. - Each of these “deeds” purport to convey lots in Lincoln Park Cemetery according to a plat in the “office of Lincoln Park Cemetery.” Each contains the following:

“To Have and to Hold unto said grantee, heirs, executors and administrators forever, in fee simple for the purpose of using same as a place of burial subject to all rules and regulations for the government of said Cemetery and said lot which has been or which may be bought adopted by the Lincoln Park Cemetery Company.”

This court has held, as have most jurisdictions, that:

“ ‘The courts quite generally hold * * that the purchaser of a lot in a public cemetery, though the deed be absolute in form, does not take any title thereto. The mere privilege or license to make interments in the lot so purchased, exclusive of all others, is all that is acquired thereunder.’ ” Kerlin v. Ramage, 200 Ala. 428, 76 So. 360 (1917).

This rule was again stated in Smith and Gaston Funeral Directors v. Dean, 262 Ala. 600, 605, 80 So.2d 227, 230 (1955):

“One who buys the privilege of burying his dead kinsmen in a public cemetery thereby acquires no general right of property. He acquires only the right to bury the dead, for he may not use the ground for any other purpose than such as is connected with the right of sepulture. Beyond this, his title does not extend. He does not acquire, in the strict sense, an ownership of the ground; all that he does acquire is a right to use the ground as a burial place. . . . ”

There is no question that the cemetery involved in this case is a public one as defined by this court. Smith and Gaston Funeral Directors v. Wilson, 262 Ala. 401, 79 So.2d 48 (1955). The rule followed in Alabama is stated at 14 C.J.S. Cemeteries § 25, as follows:

“. . . ordinarily, the purchaser of a lot in a cemetery, although under a deed absolute in form and containing words of inheritance, is regarded as acquiring only a privilege, easement, or license to make interments in the lot purchased, exclusively of others, so long as the lot remains a cemetery, and the fee remains in the grantor subject to the grantee’s right to the exclusive use of the lot for burial purposes. The lot owner’s title to the lot is a legal estate, and his interest is a property right entitled to protection from invasion, but only in a restricted sense does it constitute an interest in real property. . . . ”

At 14 Am.Jur.2d, Cemeteries § 25, the following appears:

“According to the rule prevailing in nearly all jurisdictions, one who purchases and has conveyed to him a lot in a public cemetery does not acquire the fee to the soil, but only a right of burial therein which has been variously designated as an easement or as a license or privilege. . . . Also, the rule that the purchaser does not acquire a title in fee has been applied to conveyances of lots in private cemeteries which employ the ordinary language of a fee simple deed, but include terms limiting the use to the burial of the dead, and impose various conditions, regulations, and restrictions.”

The trial court correctly held that White-sell was the owner of the property involved. Its judgment is, therefore, affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    AMERICAN ALLIED LIFE INSURANCE COMPANY v. Alvis Fielding WALES.
    SC 2648.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Macbeth Wagnon, Jr., Birmingham, for appellant.
    Ronald A. Drummond, of Livingston & Drummond, Scottsboro, for appellee.
   EMBRY, Justice.

Appeal by American Allied Life Insurance Company from a judgment entered by the trial court granting the declaratory relief prayed for by Alvis Fielding Wales and denying American Allied’s counterclaim for reformation of an insurance policy. We affirm.

The trial court heard this action without a jury and its finding of facts is an excellent summary of the evidence, and amply supported by it:

“This cause, being at issue, came on for trial on the merits on January 13, 1977. Plaintiff seeks a declaration of entitle-merit to cash loan values as provided in an insurance policy issued to plaintiff in February 1968 by Allied Life Insurance Company, a company subsequently merged with the named defendant, American Allied Life Insurance Company.
“Defendant denies plaintiff is entitled to such loan values. By counterclaim, defendant prays that the policy be reformed, asserting that the policy was issued and accepted by a mutual mistake by plaintiff and defendant, that said policy is not the policy plaintiff applied for or the policy defendant intended to issue. Alternatively, the defendant claims plaintiff should have known and realized a mistake was made when the policy was initially issued. Also, defendant contends that before the policy in question was accepted the plaintiff was possessed of such information that, in view of plaintiff’s intelligence and business experience, should have caused plaintiff at least to suspect that defendant had issued the policy by mistake and further that, regardless of plaintiff’s intentions or awareness of possible error, the public policy of Alabama prohibiting discrimination between individuals of equal age and life expectancy in the rates and benefits for life insurance requires that the policy be reformed so as to conform to the rates and benefits regularly and customarily offered by defendant to all members of the public similarly situated.
“Although plaintiff denies any awareness of error and insists that he relied on the loan values stated in the policy and the recommendation of the insurer’s agent when deciding to accept it, there is no substantial dispute in the evidence as to what transpired.
“The circumstances surrounding the issuance of this policy are most important. The plaintiff received from defendant’s predecessor’s agent two policies of insurance. One was for $10,000.00 and the other was for $25,000.00. The agent reviewed each of these policies with the plaintiff and highly recommended that the plaintiff purchase the $25,000.00 policy, which he did. It is without dispute that plaintiff and the insurer’s agent discussed loan value immediately before the purchase. On the recommendation of the agent, plaintiff purchased the policy in question. Plaintiff reluctantly did so since the annual premiums exceeded $900.00, but testified that he did so mainly on the recommendation of the agent due to the ‘loan values’ contained in the policy.
“Furthermore, the evidence is without dispute that the agent emphasized the loan value of the policy in question by circling it with a pen and advising the plaintiff that loan values would over a period of years exceed premium payments.
“The defendant insists the policy should be reformed due to a mutual mistake. It is, however, apparent that the policy in question was the policy presented and shown to plaintiff and the policy which he intended to purchase. Under such state of facts, this court cannot hold that a mutual mistake has occurred.
“This policy was issued on March 27, 1968. Only after plaintiff instituted this action for a declaration of rights, did defendant take any affirmative steps to have the policy reformed.
“The court finds that if an error was made, it was made unilaterally by defendant’s predecessor. The court then must answer the question: should the plaintiff at this late date be penalized for purchasing a policy recommended to him by the agent of defendant’s predecessor? It is the general law in Alabama that insurance contracts are to be construed most strongly against the insurer who prepares the contract. Likewise, it appears equity would also impose on an insurer an obligation to carefully inspect and review its actions in the issuance of policy contracts.
“A court of equity will not usually reform a policy of insurance in order to relieve a party from a mistake which was the result of his own negligence. It is clear from the evidence in this case that if a mistake was made, it was made unilaterally as a result of the negligence of Allied Life Insurance Company.
“While defendant contends otherwise, there is no evidence of inequitable conduct or fraud on the part of the plaintiff, nor is there evidence that the plaintiff knew or suspected any mistake of the insurer.
“While the policy may in fact be, as defendant contends, more favorable to plaintiff than other policies issued to similarly situated individuals, that does not render the contract or policy void, Meridian Life Ins. Co. v. Dean, 182 Ala. 127, 62 So. 90, nor does it afford a basis for reformation.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED as follows:
“1. The plaintiff is the lawful owner of insurance No. 4383 issued on March 27, 1968, by Allied Life Insurance Company.
“2. The defendant has assumed all obligations under this contract and is committed to honor its policy provisions.
“3. The plaintiff is entitled to a loan from the defendant on the said policy of insurance in accordance with the loan values as stated in said policy. The defendant is hereby ordered to make same available to the plaintiff.
“4. That the defendant’s counterclaim for reformation be denied.”

American Allied, by its statement of the issues presented for review, says the trial court erred in declaring Wales is entitled to obtain a loan in accordance with the loan values stated in the insurance policy and in denying the counterclaim for reformation. In brief, to support the contention that the trial court committed reversible error in its ruling on the counterclaim, American Allied asserts:

“A. Reformation is due to be granted on grounds of mutual mistake.
* * * * $ *
“B. Reformation is due to be granted because Mr. Wales’ own testimony shows he accepted the policy with the knowledge amounting to an awareness that a mistake had been made.
* * * * * *
“C. Reformation is due to be granted on grounds of public policy and to prevent discrimination.”

As to American Allied’s first assertion, we observe there was a finding by the trial court that a mutual mistake did not occur. The trial court went further and added, even if a mistake did occur, it was made unilaterally by American Allied’s predecessor. Under the state of the record we cannot disagree with the trial court’s finding of fact in this regard, for it is supported by the evidence. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975); Whigham v. Travelodge International, Inc., 349 So.2d 1078 (Ala.1977).

The gist of American Allied’s second argument is that Wales, being a successful businessman and after his admitted examination of the loan values under the policy when it was delivered to him, knew or should have known a mistake had been made. The trial court specifically found the evidence did not support American Allied’s claim. Again, the evidence supports the trial court’s finding and we cannot disturb it. Eubanks, supra; Whigham, supra.

American Allied’s third contention was adequately dealt with by the trial court in the judgment. The trial court’s reasoning and conclusion are sound and supported by the authority cited therein.

There was ample evidence to support the findings of the trial court, and the conclusion and holding based upon those findings are correct under applicable law; therefore, the judgment is due to be, and is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    The WILLIAMSON-JOHNS CO. et al. v. Lloyd JOHNS.
    SC 2778.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied Feb. 24, 1978.
    Richard F. Ogle, Birmingham, for appellants.
    Wyatt R. Haskell and Philip W. Norwood, Birmingham, for appellee.
   FAULKNER, Justice.

This appeal is from a judgment of the Jefferson County Circuit Court, confirming the report of a Special Master, which recommended that Williamson pay the Williamson-Johns Company (Company) $3,126 and that Johns pay the Company $8,609.75, even though the pleadings did not request such relief for the Company, and awarding the Special Master $3,500. We affirm.

Johns and Williamson are each 50% stockholders in the Company. Johns filed suit against Williamson and the Company, seeking enforcement of a “buy-sell” agreement and requesting an accounting, production of the books and records of the Company, monetary judgment, and that Williamson be enjoined from misuse of corporate funds and from interfering with the operation of the business. Williamson and the Company filed an independent suit, which was treated as a counterclaim, requesting an accounting, monetary judgment, and that Johns be required to return all improperly withdrawn funds.

After a hearing ore tenus, the trial court determined that there was no valid contract between Johns and Williamson, as individuals, touching their individual rights and liabilities one to another and to the corporate structure, and that the matter could be resolved only by an accounting. The court referred the caserío a Special Master. The Special Master’s Report found wrong-doing on the part of both Williamson and Johns and recommended that a $3,126 judgment be entered against Williamson in favor of the Company; that a $8,609.75 judgment be entered against Johns in favor of the Company; that Johns and Williamson each be taxed half the costs; and that the Special Master be awarded a $3,500 fee, to be taxed as costs. Johns and Williamson filed objections to the Report. Motion for reconsideration was denied.

First, Williamson contends that the judgment in favor of the Company is error because the pleadings did not request that relief. We do not agree.

ARCP 54(c) states that “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

“Because of the second sentence of Rule 54(c), the demand for judgment required by Rule 8(a)(3) loses much of its significance once a case is at issue. If defendant has appeared and begun his defense of the action, adherence to the particular legal theories of counsel that may have been suggested by the pleadings is subordinated to the court’s duty to grant the relief to which the prevailing party is entitled, whether it has been demanded or not.” 10 Wright & Miller, Federal Practice and Procedure, § 2664, p. 104-05.

Here, the Company was a named party to the suit. There is no attack on the sufficiency of the evidence to support the relief, and there is no showing that Williamson was prejudiced in his defense. Therefore, the award of judgments in favor of the Company was proper.

Second, the award of the Special Master’s fee is said to be an abuse of discretion of the trial court, and both appellants, and appellee, join in urging this court to reduce the amount of the Special Master’s fee. They submitted counsels’ affidavits concerning the amount of time expended on the case by their counsel. Mr. Ogle, representing appellants, spent a total 53.8 hours on the case, 30.4 of which were prior to the Special Master’s participation, and billed at $50 per hour. Mr. Costello, representing Johns, charged an average of $48 per hour for the 70 hours and 50 minutes spent on the case, 31.25 of which were prior, to the Special Master’s appointment. On these facts they urge us to reduce the Special Master’s fee of $3,500.

ARCP 53(a), in providing for the appointment of special masters, states that “The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct.”

Matters resting in the sound discretion of the trial court will not be disturbed on appeal unless there is a clear abuse of discretion. City of Mobile v. Wooley, 278 Ala. 652, 180 So.2d 251 (1965). In his amended report, the Special Master stated that he had worked 95.5 hours on the case. In this accounting between the parties, 32 exhibits were received by the Special Master. After five hearings, an eighteen page report was submitted to the court. The trial court confirmed the requested fee and denied the motion to reconsider, grounded in part upon the allegedly excessive fee award.

A lawyer’s time is his stock in trade. The amount of the award is less than $40 per hour. It does not appear that $3,500 is excessive. We find no abuse of discretion by the trial court.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    BALDWIN COUNTY BOARD OF HEALTH et al. v. BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION, a Rural Electric Cooperative.
    SC 2819.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    John R. Wible, Asst. Atty. Gen., for appellants.
    John Earle Chason, Bay Minette, for ap-pellee.
   BLOODWORTH, Justice.

Defendant, Baldwin County Board of Health (Board of Health), appeals from a judgment for plaintiff, Baldwin County Electric Membership Corporation (Co-op), in a declaratory judgment action, holding, that Sections 4(b) 1, 2, and 3 and Sections 5(a) and (b) of the Board of Health regulations (adopted on April 7,1974) requiring an applicant for utility service to obtain a certificate of site approval from the Board of Health prior to the installation of utility service, are an unconstitutional exercise of the law making power and impose an unreasonable restriction upon the operation of a private utility. The court also held that the Co-op may furnish electric service to defendant, Donald R. Nelson, without obtaining a prior “certificate of site” approval, as required by the regulations, and without suffering the penalties provided in those regulations. We affirm.

Plaintiff, Co-op, is a rural electric membership co-operative organized for the purpose of providing electric power to its members. It instituted this action after one of its members, Nelson, applied to it for electric service. The Co-op contacted Mr. C. K. Zehner, an employee of the Board of Health, to obtain permission to connect said service, but the Co-op was advised by Mr. Zehner that permission would not be granted since Nelson did not have the required “certificate of site approval.” A certificate states that the means of sewage disposal has been approved by the Board of Health. Nelson informed the Co-op that he would sue it in order to enforce his rights as a member. Plaintiff Co-op then brought this action for declaratory judgment in order to determine how it should proceed with respect to the request for service by Nelson and to determine what effect the regulations have upon it in its distribution of electric energy.

The case was heard, ore tenus, and the trial court entered a judgment for plaintiff Co-op.

The Board of Health contends, on this appeal, that the trial court erred in holding the Board’s regulations constitute an unconstitutional delegation of legislative power because the Board’s authority to enact such regulations is broad enough to withstand constitutional attack. The Board also contends the trial court erred in striking down the regulations because, in so doing, it substituted its judgment as to public health for that of the Board. The Board of Health further contends the trial court erred in its finding that the regulations impose an unreasonable restriction on the operation of a private utility because, they allege, the regulations bear a reasonable relationship to public health since they aid in enforcing the State’s sanitation laws.

Even if we were to assume, for the sake of argument, that the Board is correct with respect to its argument that the regulations do not constitute an unconstitutional delegation of legislative power, our decision to affirm this case would have to stand. We think it clear that the regulations in question are beyond the state’s police power, and hence, unconstitutional. Moreover, they violate § 104(14) of the Alabama Constitution.

The regulations in question which were adopted pursuant to Tit. 22, § 8, Code of Alabama 1940, the trial court held, provide, in pertinent part, as follows:

“Section 4. Certificate of site approval . .
* * # * * *
“(b) Utility Service
“(1) Utility service for new construction shall not be supplied to an applicant unless a certificate of site approval has been granted by the Health Officer and the utility company has been notified accordingly.
“(2) Utility service shall not be supplied to mobile homes, travel trailer or relocated structure until a certificate of approval of the sewer system has been forwarded to the utility.
“(3) Exceptions to the provisions of this subsection shall be made on an individual case basis by the Health Officer.
“Section 5. Violations and Penalties
“(a) It shall be unlawful for any public utility company to connect or make available for use any service, which tends to add or encourage occupancy of any new structure, unless a certificate of site approval has been issued by the Health Officer.
“(b) Any person who violates any provisions of these regulations or resists or interferes with the Health Officer in the enforcement of the regulations, shall be guilty of a misdemeanor, and upon conviction may be punished pursuant to Title 22, Section 103 and 104 of the Code of Alabama, 1940 as amended. Each day any person is in violation constitutes a separate offense.”

The Board of Health contends these regulations are a proper exercise of the state’s police power. We cannot agree.

The limits of a state’s police power are very broad and difficult to precisely delineate. In fact, the term “police power” is one of those legal terms which is peculiarly ephemeral by its very nature. Nevertheless, this court has, on a number of occasions, defined the state’s police power and articulated its boundaries.

In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), this Court observed.

■ “ . . . The limits of a state’s police power have never been fixed nor its boundaries defined. This for the reason that it is not subject to any definite limitations or boundaries, for it represents the state’s great reserve power, and at all times is coextensive with the necessity of the case and the safeguard of public interest. It is a power inherent in the government, and while it may be set aside by the Constitution, yet in order to find that it has been so set aside, the Constitution must plainly so indicate. And the authorities agree it is a peculiar function of the law-makers to determine when the welfare of the people requires the exercise of the state’s police power and what are appropriate measures to that end, subject only to the power of the courts to judge whether any particular law is an invasion of rights secured by the Constitution. (Citations omitted.)”

‡ s}: s}: * j}s

“ . . . [T]he police power may not unreasonably invade private rights guaranteed under the federal or state constitution. And, as we observed in State v. Polakow’s Realty Experts, supra, all regulations involve in some degree a limitation upon the exercise of the right regulated. The test is whether the limitation imposed is really by way of regulation only and is one whose purpose and effect go no further than throw reasonable safeguards in the public interest around the exercise of the right. If the limitation is of this character, its imposition is a proper exercise of the police power resident in the legislature and whose exercise is one of the latter’s most important functions.
“As we have observed, this power must not be exercised arbitrarily or capriciously, and there must be some reasonable relation to the regulation and the ends to be attained.”

In Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974), this Court held:

“ . . . The validity of a police regulation, therefore, primarily depends on whether, under all the existing circumstances, the regulation is reasonable, and whether it is really designed to accomplish a purpose properly falling within the scope of the police power. Mutual Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, 56 L.Ed. 175 (1911). . . . Otherwise stated, the law would look with disfavor on any supplemental regulatory requirements that had as its effect the cutting of the pattern to fit the cloth. See City of Mobile v. Farrell, 229 Ala. 582, 158 So. 539 supra.” [Emphasis supplied.]

It is apparent, therefore, that the central inquiry is “reasonableness.” In order for regulations, such as the ones in question, to be sustained, they must be reasonable and must bear some substantial relationship to the public need or general welfare. The regulations in this case do not meet that test.

No one would dispute the fact that regulations may be adopted in order to preserve and foster the public health. However, those regulations must be reasonable. The regulations here require that a certificate of site approval be obtained from the Board of Health prior to installation of electric service. We do not think that this requirement is reasonable.

The Board of Health argues that these regulations properly advance the cause of sanitation. It contends that if electricity is connected without first obtaining the certificate of site approval, then the use of that electricity will allow residents to pump water, heat water with which to bathe or flush toilets, operate dishwashers, washing machines, and various other activities, all of which could create a public health menace, absent a septic tank. The Board of Health also contends these regulations will ease its work load.

We agree that sanitation is both a worthy and a necessary goal. However, we agree with the observation of Mr. Justice Jones, in Crabtree v. City of Birmingham, supra, that the law cannot condone a regulatory requirement, such as the one in question, which, in effect; “cut[s] the pattern to fit the cloth.” Moreover, while we agree these regulations would ease the Board of Health’s work load, administrative ease cannot justify regulations which “put the cart before the horse.”

In short, we fail to perceive why and how the public health and welfare is advanced by regulations which, in effect, make the installation of a septic tank the sine qua non for obtaining electric power. Or, put another way, we think the means employed bear no rational relationship to the ends sought to be achieved.

The Board of Health argues, however, that the Court of Civil Appeals, in Turnbull v. Rencher, 53 Ala.App. 12, 296 So.2d 912 (1974), has upheld the authority of the Baldwin County Board of Health to adopt sanitation regulations which prohibit the building of homes or commercial concerns without proper sanitation. We think there are at least two answers to this contention. First, it is apparent that the regulations in Turnbull required approval of the Board of Health prior to installation of a septic tank rather than electric power. Second, the plaintiffs in that case did not question the authority of the Board of Health to pass such regulations, and thus the Board’s authority to do so was not an issue.

There is yet another reason why these regulations are unconstitutional. They violate § 104(14) of the Alabama Constitution.

Section 104(14) of the Constitution provides that “the legislature shall not pass a special, private, or local law in any of the following cases: . . . (14) Fixing the punishment of a crime; . . . .”
In this case, the regulations do not expressly fix punishment, but they provide that the penalty for violation is governed by Tit. 22, §§ 103-104, Code. Where, as here, such regulations have the force and effect of law, by virtue of Tit. 22, § 8, Code, we hold, as we did in Williams v. Kelley, 289 Ala. 440, 268 So.2d 485 (1972), that it would be incongruous to prohibit the lawmaking body of the state from so acting, and to allow an agency of that same body to create a rule which has the same effect. Thus, we hold that the regulations in question, having the force and effect of law, violate Section 104(14) of the Alabama Constitution, in that their promulgation effects the passage of a local law fixing the punishment of crime in Baldwin County.
“ . . . Since the legislature itself could not effect passage of an act embodying the terms of this regulation, it would seem obvious that the administrative agency, being a creature of and deriving its powers from the legislature, would possess no such power.
“Otherwise, the legislature, by the simple expedient of creating an agency, could confer that agency with powers it does not itself possess because of constitutional prohibitions, and the Constitution would thus be circumvented.
“In State v. Alabama Power Co., 254 Ala. 327, 340, 48 So.2d 445, 455 (1950), this Court expressly held that notwithstanding ‘ * * * the legislature [itself] has made no effort to contravene the Constitution of the State * * * it could not do indirectly what the constitution forbids being done directly.’ (Emphasis ours)”

Williams v. Kelley, supra.

For the foregoing reasons, therefore, this case is due to be affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice. TORBERT, Chief Justice

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, etc., et al. v. Shelia CAVER and Rose Ann Caver.
    SC 2797.
    Supreme Court of Alabama.
    Feb. 10, 1978.
    Leon G. Duke, Mobile, for appellants. Joseph J. Boswell, Mobile, for appellees.
    William H. McDermott, of McDermott, Slepian, Windom & Reed, Mobile, for the City of Chickasaw, amicus curiae.
   BLOODWORTH, Justice.

This is an appeal by permission under Rule 5, A.R.A.P., by defendant Board of School Commissioners of Mobile County, Alabama, from an interlocutory judgment holding that the Board is not immune from suit for the negligence of its agents. We affirm.

Plaintiff, Caver, a student who was allegedly injured by a Mobile County School Board bus while she was standing in the school yard, brought suit for negligence, and the Board moved to dismiss her complaint because of sovereign immunity. The trial judge denied that motion. Later, the Board filed a motion to reconsider, which was denied, and the trial judge entered an interlocutory order, holding that the Board was not immune from suit in tort. This appeal is from that order.

Defendant, Board, contends that the issue of sovereign immunity was decided in its favor in Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976), which held in a plurality decision, (based upon an interpretation of Tit. 52, § 99, Code of Alabama 1940) that a school board is immune from suit in tort.

Although at first blush, the Board’s argument seems an appealing one, for Sims appears to foreclose further inquiry into this question, a close reading of Sims and an examination of Act No. 480, Acts of Alabama, Regular Session 1969, as well as § 270 of the Constitution of 1901, convinces us that the Mobile County School Board is amenable to suit in tort.

Mr. Justice Stakely, in Morgan v. Board of School Commissioners of Mobile County, 248 Ala. 22, 26 So.2d 108 (1946), gave the history of the Mobile County Board of School Commissioners. In that opinion, he pointed out that the Mobile County School Board has been exempted, in large part, from the general scheme of public school legislation ever since 1854 when the State of Alabama set up its first comprehensive school system.

That legislative policy, which is based upon the fact that Mobile County established its school system before the State did so, continues to this date, as evidenced by Section 270 of Article XIV of the Alabama Constitution.

Section 270 (in the Article on Education), as amended by Amendment 111, provides:

“The provisions of this article and of any act of the legislature passed in pursuance thereof for educational purposes, shall apply to Mobile county only so far as to authorize and require the authorities designated by law to draw the portions of the funds to which said county shall be entitled for school purposes and to make reports to the superintendent of education as may be prescribed by law; and all special incomes and powers of taxation as now authorized by law for the benefit of public schools in said county shall remain undisturbed until otherwise provided by the legislature.”

This section makes it crystal clear that the Mobile County School Board is a somewhat autonomous county school board which is not subject to all general legislation concerning “educational purposes.” In fact, the legislature has two specific restrictions on what sort of legislation it may pass. These restrictions are as follows:

“ ‘(1) A restriction that the legislature may not apply to Mobile County any general public school legislation on the subjects embraced in Article XIV of the Constitution of 1901, except so far as it provides for Mobile County to get its share of the general public school funds, and to require the local school authorities to make such reports to the superintendent of education as may be prescribed by law.
“(2) A restriction that any special income and power of taxation as authorized by law for the benefit of the public schools of Mobile County at the time of the adoption of the constitution shall not be disturbed until otherwise provided by the legislature.’ (248 Ala. at 26, 26 So.2d at 111)”

Mobile, Alabama-Pensacola, Florida Building and Construction Trades Council v. Williams, 331 So.2d 647 (Ala.1976), quoting Morgan v. Board of School Commissioners of Mobile County, supra.

This limitation on legislative power is restrictive in its scope and purpose and is to be strictly construed. Mobile, Alabama-Pensacola, Florida Building and Construction Trades Council v. Williams, supra; Board of School Commissioners of Mobile County v. Hahn, 246 Ala. 662, 22 So.2d 91 (1945).

Act Number 480 (the latest amenda-tory act regulating the public schools in Mobile County) falls within neither one of these two exceptions. That act provides, inter alia, that, “The said Board shall be a body corporate; and may have a common seal; may sue and be sued . . (Emphasis supplied.) Clearly, the authority to “sue and be sued” is not one of those educational areas in which the legislature may not act concerning the Mobile County School Board.

We stressed in Sims v. Etowah County Board of Education, supra, as well as in Enterprise City Board of Education v. Miller, 348 So.2d 782 (1977), that the sovereign immunity we held was due to be accorded those boards of education flowed directly from the statutes. In both cases, the pertinent statutes stated that the county and city boards of education, respectively, “may sue.” There was no corresponding provision in those statutes that the respective boards could “be sued.” For that reason, we said in each case, inter alia, that the respective boards of education were immune from suit in tort.

In the case at bar, by contrast, Act Number 480 clearly states that the Mobile County School Board “may sue and be sued.” We hold, therefore, as we said in Sims and Enterprise City Board, that the statute must be given effect, and, therefore, the Mobile County School Board may be sued in tort.

Defendant Board argues, however, that the phrase “sue and be sued” is not an all encompassing term, and that if the county school board may be sued, it may only be sued for acts performed in its corporate or proprietary capacity as opposed to acts performed in its governmental capacity. In other words, defendant Board would have us resort to determining whether the act is governmental or corporate. As we held in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), and said in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), however, these distinctions are tenuous, at best, and our continued reliance upon them, in the context of sovereign immunity cases, would serve no useful purpose.

For the foregoing reasons, we hold that the trial judge’s order is due to be affirmed.

AFFIRMED.

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

TORBERT, C. J., and JONES, J., concur specially.

TORBERT, Chief Justice

(concurring specially):

I concur in the result reached by the majority based upon the previous decisions of this court.

We now find ourselves committed to this statutory interpretation: If the statute provides that the public body “may sue and be sued” then there is no immunity from tort liability; however, if the statute provides only that the body “may sue” then the body is immune from tort liability. I find this reasoning difficult because this court is also committed to the proposition that the right to sue carries with it the implied right to be sued, Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920), limited, however, as to matters with the scope of its corporate power. Morgan et al. v. Cherokee County Board of Education, 257 Ala. 201, 58 So.2d 134 (1952). If this defendant is not immune from tort liability I would think the better reasoning would be that the operation of a school bus is within its corporate power, and the negligent operation thereof would give an injured party a right of action.

JONES, J., concurs.


author: HOLMES, Judge.

text:
    Nan S. SLEPIAN v. Ronald P. SLEPIAN.
    Civ. 1216.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1977.
    Rehearing Denied Dec. 21, 1977.

      Wilson M. Hawkins, Jr., Mobile, for appellant.
    Joseph M. Matranga, Mobile, for appellee.
   HOLMES, Judge.

The Circuit Court of Mobile County granted the defendant’s motion to dismiss' the plaintiff’s cause of action. The plaintiff appeals, contending the trial court erred in granting defendant’s Rule 12, ARCP, motion to dismiss for failure to state a claim upon which relief can be granted. We affirm.

The pertinent part of the defendant’s motion to dismiss is as follows:

“2. To dismiss the action on the ground that the subject matter of the Complaint and the prayer for recovery therein is embraced in motions pending before Honorable Michael E. Zoghby filed in Civil Action No. 84444-Z which such motions and other matters have been taken under submission by Judge Zoghby and not ruled on as yet and the basis of the Complaint covers the same subject matter.”

At the outset, it is necessary to determine whether certain documents are properly before this court. Put another way, is Civil Action No. 84444-Z before this court for our consideration?

In July of 1977, the Honorable John E. Mandeville, the distinguished clerk of the Circuit Court of Mobile County, forwarded to this court a certificate of completion of the record on appeal. This record contained the plaintiff’s complaint, the defendant’s motion, and the trial court’s order granting the motion to dismiss and other nonperti-nent documents. Specifically, the record contained no documents pertaining to Civil Action No. 84444-Z. On August 4, 1977, the plaintiff-appellant filed her brief in this court. On August 24, the defendant-appel-lee filed his brief in this court. Accompanying the defendant’s brief was what the defendant termed an “appendix.” This document contained documents relating to Civil Action No. 84444-Z. Needless to say, the defendant in brief argued that the trial court considered or took judicial notice of documents pertaining to Civil Action No. 84444-Z.

On September 7,1977, the plaintiff-appellant filed with this court a motion to strike the defendant’s hereinabove referred to “appendix.” On September 14, this court denied. plaintiff’s motion to strike. This motion was bottomed on the premise that the documents contained in the “appendix” were not properly before this court. Specifically, that Rule 30, ARAP, had in no way been complied with. After this court’s action denying the motion to strike the “appendix”, the plaintiff-appellant on September 28, 1977, filed with this court his own “appendix” which basically is the same matter contained in defendant’s so-called appendix.

It is clear to this court that neither of the “appendices” are properly before this court. The matters contained therein are not contained in the record as forwarded to this court. Neither was any attempt made to comply with Rule 30, ARAP, regarding the use of an appendix. We therefore may not consider the matters contained therein as a part of the record. We regret this; however, we have no alternative.

It is equally as clear, from examination of the record, that the trial court did, by resorting to the legal principle of judicial notice, consider the matters contained in Civil Action No. 84444-Z.

The law in Alabama is settled in that when a party refers, in its pleadings, to another proceeding in the same court, that court may and should take judicial notice of the entire prior proceeding insofar as it is relevant to the question of law presented. See Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966).

The defendant, in his motion to dismiss, stated that the issue in the present suit was under submission in another case before the same court,, e., Civil Action No. 84444-Z. In view of Butler v. Olshan, supra, the trial court was authorized and required to take judicial notice of the proceedings in Civil Action No. 84444-Z to determine if the same question of law was presented. We must, in view of the state of the record, assume that the trial court did take such notice and we thus come to the question of deciding whether the trial court erred in dismissing appellant’s action.

In Butler v. Olshan, supra, the Alabama Supreme Court stated three conditions' which must exist before an appellate court can take judicial notice of the record of other proceedings: (1) the pleading in the instant case must refer to the other proceeding; (2) the other proceeding, must be of record in the trial court whose decree or judgment is the basis for the instant appeal; and (3) the prior proceeding must be of record in the appellate court in another appeal here or set out in the instant record.

As stated above, the pleadings in the instant case referred to the other proceeding and the other proceeding was of record in the trial court. The third requirement, as seen from the above, is lacking.

The record, or any other documents, in Civil Action No. 84444-Z is not before us in the record on a prior appeal or, as stated earlier, in the instant appeal. For that reason, we cannot judicially know whether the proceeding in Civil Action No. 84444-Z is or is not res judicata of the issues presented in plaintiff-appellant’s present complaint.

It is axiomatic that error may not be presumed. See Lee v. Lee, 283 Ala. 275, 215 So.2d 718 (1968). The party complaining of error in a judgment must show such error affirmatively on appeal; otherwise, the presumption must be that the decision of the trial court is correct. See Butler v. Olshan, supra.

Plaintiff-appellant is the party alleging error in the trial court’s action granting the motion to dismiss and he has the burden of revealing to this court such error. Put another way, from the state of the record (pleadings), it is incumbent on the plaintiff-appellant to have before this court evidence which shows that the trial court erred in finding Civil Action No. 84444-Z res judica-ta to the present case. Specifically, Civil Action No. 84444-Z must be properly before this court. See Butler v. Olshan, supra.

Summarizing, this court, on appeal, can only determine error which appears on the record. See Harvey v. State Department of Public Safety, 56 Ala.App. 660, 325 So.2d 170 (1975). We must assume that the trial court took judicial notice of the proceedings in Civil Action No. 84444-Z. Those proceedings are not properly before this court. We must therefore assume those proceedings support the ruling of the trial court. See Cordell v. Poteete, 57 Ala. App. 645, 331 So.2d 400 (1976); Butler v. Olshan, supra.

We would be remiss in not commenting that it is the policy of the Court of Civil Appeals to decide cases on their merits. However, as seen from the above, we are not, in this instance, able to do so. Quite frankly, it would have been less burdensome on the court to have been able to decide the matter on its merits.

The case is due to be and is accordingly affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . This court in denying the motion to strike did not state the reason for so doing. However, the basis for our action was that when considering the appeal on its merits we would consider only those items properly in the record.

      . A defense of res judicata can be properly raised by a Rule 12 motion to dismiss for failure to state a claim upon which relief can be granted. See 5 Wright & Miller, Federal Practice and Procedure, § 1357 pp. 608-9, and Lyons, Alabama Practice, Vol. 1, p. 175.


text:
    Ex parte Nan S. SLEPIAN.
    No. 77-248.
    Supreme Court of Alabama.
    March 3, 1978.
   SHORES, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Robert George ROSSER v. Cindy Keith ROSSER.
    Civ. 1184-X.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1977.
    As Corrected On Denial of Rehearing Jan. 11, 1978.

      Marion F. Walker, Birmingham, for appellant and cross-appellee.
    James M. Fullan, Birmingham, for appel-lee and cross-appellant.
   BRADLEY, Judge.

The appellant-cross appellee, Cindy Keith Rosser, filed a complaint in the Circuit Court of Jefferson County, Birmingham Division, seeking a divorce from the appellee-cross appellant, Robert George Rosser. The wife’s petition for divorce was brought on the grounds of incompatibility of temperament, irretrievable breakdown of the marriage and physical cruelty with danger (or apprehension of danger) to life or health. The husband filed a counterclaim alleging incompatibility of temperament, irretrievable breakdown of the marriage and adultery.

After the presentation of evidence by both parties the trial court rendered a decree dissolving the bonds of matrimony on the grounds of adultery. The husband was awarded custody of the couple’s minor children; however, the wife received reasonable visitation privileges. The decree further ordered the husband to pay the wife $1,500 as alimony in gross and another $32,-000 as her share of the equity in the residence owned jointly by the two parties. The husband was also ordered to pay the wife’s legal counsel the sum of $15,000 for services rendered in her behalf. The trial court subsequently modified that part of the decree which was related to visitation privileges and entered an order granting the wife the right of visitation with her children on alternate weekends, for a two week period each summer, and for a five day period each December.

The wife’s appeal was dismissed at the request of her attorney. The cross appeal is from the portion of the trial court’s decree awarding an attorney’s fee in the amount of $15,000 and from the modified decree granting reasonable visitation of the children to the wife.

The first issue presented on appeal concerns the husband’s contention that the trial court erred in awarding attorneys’ fees to the wife. His argument with regard to this matter is two pronged: first, he claims that the wife forfeited her right to receive attorneys’ fees by her misconduct; second, the husband maintains that the amount of the fee awarded was excessive.

The record before us reveals that the parties were married in the spring of 1972. They lived together until early fall of 1976. At the time of their divorce the husband was approximately forty years of age and the wife was approximately twenty-six years old. The husband is a physician specializing in colon-rectal surgery. Evidence at trial demonstrated his net worth to be approximately $500,000. In 1975 his gross income was $250,000. On the other hand, the wife performed the functions of a homemaker during the couple’s marriage. The record indicates no other appreciable skills which would permit her to obtain employment outside the home. Nor is there any evidence that she is sufficiently skilled or educated to acquire a position which would produce the income necessary to pay the rather large attorneys’ fees which were incurred in this case. Nonetheless, her health is good and in the past she has attended classes at Samford University in Birmingham.

Despite these facts, the husband contends that his wife is not entitled to the attorneys’ fees which were awarded her because she openly admitted to several acts of fellatio during the couple’s marriage. The law in Alabama and in other jurisdictions is to the effect that even in situations where a divorce is awarded to the husband on the grounds of his wife’s adultery, attorneys’ fees may nevertheless be awarded to the wife. Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188 (1936); Coleman v. Coleman, 198 Ala. 225, 73 So. 473 (1916); Jaffe v. Jaffe, 74 App.D.C. 394, 124 F.2d 233 (1941); Foreman v. Foreman, 40 So.2d 560 (Fla.1949); Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660 (1969); Nix v. Nix, 253 Miss. 565, 176 So.2d 297 (1965); Keyes v. Keyes, 252 Miss. 138, 171 So.2d 489 (1965); Dickenson v. Dickenson, 192 Misc. 635, 81 N.Y.S.2d 294 (1948); Wendland v. Wendland, 29 Wis.2d 145, 138 N.W.2d 185 (1965).

These decisions are based on a number of factors which must be considered in addition to the wife’s misconduct. Paramount among these factors are: (1) the income of the husband and his financial ability to pay the counsel fees mandated; (2) the wife’s ability to pay for legal representation; (3) the fact that issues such as a dispute over custody are intertwined with the suit for divorce; (4) the good faith of the wife in asserting her cause or presenting her defense; (5) the conduct of the husband; and finally, (6) the length of trial, the time required in its preparation and the services rendered by the attorney on behalf of his client.

In the instant case all these factors were present. The husband earns a substantial income as a surgeon while the wife does not possess the education or skill which would enable her to obtain the type of employment which might provide the income necessary to pay a $15,000 attorneys’ fee. The husband’s estate is valued at approximately $500,000. Conversely, the wife’s estate is comparatively small; indeed, her only apparent assets are the $1,500 she received from her husband as alimony in gross and the $32,000 which represented the value of her interest in the couple’s residence. Thus, it is clear that the husband is in a much better financial position than his wife to pay the attorneys’ fees which were awarded by the trial court.

In addition, the custody of the child produced as a result of the parties’ marriage and that of the wife’s child by a prior union was at issue and the dispute over which of the parties would obtain custody of these two young children was significantly intertwined with the divorce proceedings. In a similar vein, the husband accused his wife of numerous acts of adultery, some of which were substantiated, although most were not. Because of these accusations considerable effort was expended in defending the wife’s name and reputation; the wife asserted her defense in good faith and fairness demanded that the husband provide her with counsel fees to defend herself against his numerous allegations. Nor was the conduct of the husband irreproachable, there being a great deal of testimony (though much of it was in sharp conflict) to the effect that he physically abused his wife. Finally, the trial lasted four days and the attorneys who represented the wife expended a cumulative total of approximately 180 hours in preparation of the matter.

Therefore, we cannot say that as a matter of law or equity that the wife was not entitled to receive reasonable attorneys’ fees despite the fact that she was guilty of several acts of marital misconduct.

Moreover, we do not believe that the fee which was awarded in this case was excessive. Shortly before filing her suit for the divorce, the wife retained two attorneys at an hourly rate of $100.00. Although both men eventually withdrew as her attorneys, the lawyer who represented the wife during the initial stages of the divorce proceedings (and who is the only one of the two who sought a fee in the matter) testified that he had expended a total of 56.9 hours on the case when circumstances forced him to withdraw. And the attorney who actually tried her petition for divorce stated at trial that he (or members of his firm) had spent approximately 120 hours in the preparation of the case. The trial itself lasted four days and involved a considerable amount of pretrial discovery—particularly with regard to the husband’s finances. Furthermore, two local attorneys testified that the fair and reasonable value of the services rendered by the wife’s lawyers would be between $30,-000 and $40,000.

Nevertheless, the husband’s attorney argues that given the results obtained by the wife’s lawyers and the duplication of effort which resulted when the wife’s first attorney was forced to withdraw, the amount of $15,000 awarded by the court was excessive.

However, the factors relied upon by the husband are not the only factors for consideration in determining the amount of legal fees to be awarded. In arriving at the value of the legal services the trial court may properly consider the following: (1) the nature and value of the subject matter of employment; (2) the learning, skill and labor necessary to the proper discharge of that employment; (3) the time consumed on the matter in dispute; (4) the professional ability, experience and reputation of the party performing the services; (5) the weight of his responsibility; (6) the measure of success achieved; (7) any reasonable expenses incurred in the representation of a client; and (8) the fee customarily charged in the locality for similar legal services. ABA Code of Professional Responsibility, DR 2-106(B) (1972). Moreover, the trial court in determining a reasonable attorney’s fee may, along with the opinion evidence of experts on the subject of fees, rely on its own knowledge and experience as to the value of the services performed. Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1974). Likewise, the earning capacity of the parties may also be deemed a matter for consideration in establishing the amount of money an attorney is entitled to for his services. Burgess v. Burgess, supra.

As a general rule the amount of attorney’s fee to be awarded always rests within the sound discretion of the trial court and the court’s judgment as to the amount of the attorney’s fee will not be reversed by this court unless it is clearly shown that the trial court abused its discretion. Burgess v. Burgess, supra.

After a careful examination of the record before us, we find that the wife’s counsel were highly regarded members of the Birmingham Bar, were eminently qualified to represent her interests and were fully aware of the responsibility they had undertaken. The pleadings, pretrial memo-randa, and actual trial of the matter in question demonstrate the skill and effort invested in the proceeding by these men. Furthermore, the earning capacity of the husband was shown to be substantial, placing him in an income bracket at which level a very generous award of attorneys’ fees would not be unreasonable. These facts, when viewed in conjunction with the trial court’s intimate knowledge of the facts and his assessment of the value of the services performed by the wife’s lawyers, prevent us from saying that the trial court abused its discretion in awarding $15,000 to the attorneys who represented the wife.

The second assignment of error raised on this appeal concerns the husband’s claim that the trial court abused its discretion in awarding the wife visitation of the couple’s child and her child by an earlier marriage.

The trial court is vested with broad discretion in determining the rights and responsibilities of the parties with respect to their children following a divorce. However, this discretion is subject to the requirement that the welfare and best interests of the children are to be protected. In the present case the husband contends that the acts of fellatio openly admitted to by the wife preclude her right as a mother to have custody of her children two weekends out of each month (and for brief periods during the summer and Christmas holidays). Yet an examination of the record provides no basis for a conclusion that either of these children knew of or were affected by their mother’s indiscretions, or that their welfare and best interests would be materially served by denying their mother the right to see them. Moreover, there was no testimony that the mother was unfit or that she abused, her children; indeed, with the single exception of her husband, all the witnesses who testified with regard to this matter stated that the wife was a good mother.

Thus, we are not disposed to hold that the trial court demonstrably abused its discretion in permitting the wife reasonable visitation with her two minor children.

Therefore, both portions of the divorce decree challenged by the husband on this appeal are affirmed.

Appellant-cross appellee’s request for award of an attorney’s fee on appeal is denied.

AFFIRMED.

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

      . The couple’s marriage produced one child. However, the wife had another child by a previous marriage and the husband had three children as the result of a prior marital union. All five children were minors who were residing in the home of the parties at the time of the divorce. The portions of the decree which dealt with the wife’s privilege of visitation applied only to the two children who were related to her by blood.

      . In Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188 (1936), the divorce was granted to the husband on the grounds of his wife’s adultery. On appeal the trial court’s award of attorney’s fees to the wife was approved. The basis of the supreme court’s decision was that the husband was very successful in conducting his farming operations and that he owned a large amount of land, while his adulterous wife (who lived with her father’s family) and her family lacked sufficient funds to pay the attorney’s fees which had been incurred.

      . The fee arrangement did provide that in the event that the court awarded a fee to the wife to be paid by the husband, the attorneys would be entitled to only that amount.


text:
    Ex parte Robert George ROSSER.
    77-276.
    Supreme Court of Alabama.
    March 3, 1978.
   SHORES, Justice.

WRIT DENIED.

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


text:
    Audrey S. FALK v. Lawrence C. FALK.
    Civ. 1282.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.

      William H. Tucker, Tuscaloosa, for appellant.
    Ralph I. Knowles, Jr., University, for ap-pellee.
   HOLMES, Judge.

The Circuit Court of Tuscaloosa County denied the wife’s motion to dissolve a temporary restraining order and further found her in contempt of such order. The wife appeals, contending the temporary restraining order is invalid and unenforceable.

The pertinent facts reveal the following:

The parties were married to each other in Tuscaloosa, Alabama. The husband is a resident of Tuscaloosa, Alabama. They were divorced by order of the Circuit Court of Cook County, Illinois, in September, 1973. The wife was granted the care, eus-tody, and control of the minor children, Under the Cook County decree, the husband was allowed to keep the children during the summer school vacations.

During March, 1977, the children were voluntarily sent to Tuscaloosa by the wife due to her personal problems and living conditions.

In June, 1977, the husband filed a petition for custody of the minor children in the Circuit Court of Tuscaloosa County. Suffice it to say the petition set forth the substantially changed circumstances of the parties developing since the original divorce decree. These circumstances evidenced an inability of the wife to adequately take care of the children. The husband, in his verified petition, also requested injunctive relief.

The wife had threatened to physically take the children from Tuscaloosa before the summer vacation expired, in clear violation of the Cook County decree. The husband sought injunctive relief to prevent the children from being removed from the court’s jurisdiction.

The husband’s petition and request for injunctive relief was heard on June 29, 1977. The court, after an ore tenus hearing, ordered the following:

“[T]he court is of the opinion that the Court should take jurisdiction of this cause and that the requested preliminary injunction should be granted.
“The Court therefore orders that the custody of the minor children of the parties, namely Wendy Rebecca Falk and Laura D. Falk, remain in their father, Lawrence C. Falk, until further order of the Court. The Court further orders that the Respondent may exercise reasonable rights of visitation with said children but that she is strictly forbidden from removing them from Tuscaloosa County, Alabama, until further order.
“A further hearing will be set in this matter as soon as practical consistent with fairness to the parties.”

At this point, we note that the court order refers to a preliminary injunction. However, it is clear that a temporary restraining order was intended by the court. Technical errors do not affect the validity of the injunctive relief in that all amendable errors are regarded as amended. See Martin’s Grill Meats, Inc. v. Retail, Wholesale and Department Store Union Local No. 506, 283 Ala. 584, 219 So.2d 634 (1969).

Thereafter, the wife filed a motion to dissolve the “injunction” because she was not given notice of the hearing until after the hearing had taken place and the above order issued. On the same day, the wife “grabbed” the children and took them out of the state.

Based on the above incident, the husband then filed a motion to show cause why the wife should not be punished for contempt of the court’s order.

After hearing both motions and taking testimony ore tenus, the trial court ordered the following:

“1. The Motion To Dissolve the temporary restraining order issued on June 30, 1977, is denied and said order continues in effect.
“2. The Respondent Audrey Falk is 'guilty of willful contempt of this Court’s order of June 30, 1977, by taking the minor children into her custody outside of Tuscaloosa County, Alabama. It is therefore ordered that the Clerk of this Court issue a mittimus directing that the said Audrey Falk be committed to the jail of Tuscaloosa County, Alabama, for a period of five days for said contempt.
“3. The Respondent Audrey Falk continues to violate this Court’s order of July 30, 1977, until she returns the minor children to Lawrence Falk. It is therefore ordered that the Clerk of this Court issue a mittimus directing that the said Audrey Falk be committed to the Tuscaloosa County Jail until such time as she purges herself of the said contempt by returning said minor children to Lawrence Falk.”

The wife appeals and alleges error in the trial court’s denial of her motion to dissolve. Specifically, the wife attacks the validity of the temporary restraining order and the jurisdiction of the trial court in issuing such order. The wife also appeals the trial court’s order finding her in contempt of the temporary restraining order.

At the outset, we note that the courts in Alabama are always open for the protection of minors. Any pleading which shows on its fact that the welfare of an infant requires an order with respect to its custody or support is sufficient to invoke this jurisdiction. See Ex parte Buck, 291 Ala. 689, 287 So.2d 441, conformed to on remand, 51 Ala.App. 705, 287 So.2d 447 (1973).

As noted above, the husband petitioned the trial court for custody of the minor children and injunctive relief to insure their presence in the county. At the time of the petition, the husband was a resident of Tuscaloosa and his two minor children had been living with him for approximately four months. By virtue of the standard set out in Ex parte Buck, supra, the above facts were sufficient to confer jurisdiction upon the trial court.

The appellant-wife further alleges error by contending that the requirements of Rule 65(b), ARCP, were not complied with in issuing the temporary restraining order. Specifically, the wife contends that proper notice was not given. Rule 65(b), ARCP, in pertinent part, provides that:

“A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record, and shall expire by its terms within such time after entry not to’exceed 10 days, as the court fixes (except in domestic relations cases, the 10 day limitation shall not apply), unless within the time so fixed the order for good cause shown is extended or unless the party against whom the order is directed consents that it may be extended for a longer period. . ” [Emphasis supplied.]

Rule 65(b), ARCP, does provide for in-junctive relief without notice to the adverse party in the form of a temporary restraining order. This relief can be accorded without notice if the verified facts of the complaint clearly justify the petitioner’s apprehension about the threat of irreparable injury. See Committee Comments, Rule 65, ARCP.

In determining whether a temporary restraining order should be granted, the trial judge hearing the application is accorded wide discretion. If no abuse of discretion is shown, his action will not be disturbed on appeal. See Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975).

To this court, the record reveals the trial judge, upon hearing testimony, did not abuse his discretion in finding the appellee-husband had set out sufficient facts in his verified petition to show irreparable injury.

The wife, although unmarried, had been living with a married man while she had custody of the two minor children. During this time, the children were not adequately cared for in a suitable environment. This was due mainly to the wife’s personal problems and the fact that she lived with a married man who shared no affection for the children. The wife was also presently unable to adequately care for the children and control her own personal problems. This was evidenced by the wife sending the children to the husband several months pri- or to the husband’s visitation period as set by the Cook County decree.

Furthermore, the wife had later threatened to take the children out of Tuscaloosa County before the summer vacation expired. For the wife to have removed the children from Tuscaloosa County would have been in clear violation of the Cook County decree and, in view of the above, would constitute irreparable injury to the children. Therefore, the fact of insufficient notice does not affect the validity of the temporary restraining order according to Rule 65(b).

The appellant further argues that the temporary restraining order was invalid because it exceeded the ten-day limitation set out in Rule 65(b) and was of indefinite duration. Such is not the case.

As noted in Rule 65(b), the ten-day limitation does not apply in domestic relation cases. Such an order expires “by its terms.” This would permit an order in a domestic case, such as in the instant case, to remain in effect “until the further order of the court.” See 2 Lyons, Alabama Practice § 65.4 (1973).

To summarize, we cannot say that the trial judge abused his discretion in issuing a temporary restraining order based upon the finding of a threat of irreparable injury to the children. Also, the fact that the temporary restraining order was to remain in effect “until further order” does not affect the validity of the court’s order. The trial court, therefore, did not err in dismissing the wife’s motion to dissolve.

As noted above, the wife also appeals the trial court’s order finding her in contempt of the temporary restraining order. Put another way, the wife is seeking review of the contempt proceedings by appeal.

The proper remedy for review of contempt proceedings is by habeas corpus if the party is in jail, or by certiorari if the party is not, and appeal is not the proper remedy. See Stout v. Stout, Ala.Civ.App., 336 So.2d 1123 (1976); Wilson v. Wilson, 53 Ala.App. 194, 298 So.2d 616 (1973).

A proceeding for contempt is not a part of the main case, but is a complete collateral proceeding which may not be reviewed on appeal in the main case. Ex parte Dickens, 162 Ala. 272, 50 So. 218 (1909).

The above being dispositive of the issues in this case, the trial court is due to be and is hereby affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . The wife did not receive notice of the hearing until July 1, 1977, at which time she received both the petition and the court’s order of June 30, 1977.

      . While appellee has alluded to certain impediments to the appellant’s ability to appeal the above mentioned orders, it is the policy of this court to reach the merits of an appeal whenever possible.


text:
    Mary L. CHANDLER et al. v. FARMERS AND MERCHANTS BANK, a corporation, et al.
    Civ. 1312.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.
    John D. Coggin, Centre, for appellants.
    No brief for appellees.
   HOLMES, Judge.

This case is an interpleader action to determine the ownership of approximately $7,700 on deposit in Farmers and Merchants Bank of Centre. The trial court awarded the fund to Lonnie Copeland, executor of the estate of Martha L. Copeland. The appellee-claimants appeal.

The record reveals the following pertinent facts:

Prior to 1973, Martha L. Copeland and her husband maintained a joint checking and savings account with the Farmers and Merchants Bank. The account was in the name of Mr. or Mrs. B. C. Copeland. Neither individual could read or write. Mr. Copeland died in 1973. Subsequently, Martha L. Copeland added other names to the original checking and savings account authorization cards. However, when these additional names were added to the signature cards of both the savings and checking accounts, there was no provision for the distribution of the proceeds of the account in the event of the death of one of the parties, i. e., survivorship provision. Furthermore, the name of the accounts remained in the original form; that is, Mr. or Mrs. B. C. Copeland.

Martha L. Copeland had Mary L. Chandler’s name added to the joint checking account authorization signature card. Both of them were thereby authorized to draw checks on that account by either person’s respective signature. When Martha Copeland died in November, 1976, the checking account had a balance of $931.43. It is this amount that Mary L. Chandler claims by virtue of the joint checking account.

The savings account signature cards had the name of Mary L. Chandler and Ella Chandler added to that of Martha Copeland and her husband after the death of her husband. The savings passbook was also altered so as to include the additional names. The record reveals that any of the named persons could have withdrawn money from the account if the person desiring to do so had the passbook in his possession. When Martha Copeland died, the balance in the savings account was $6,774.48. Mary Chandler and Ella Chandler claim ownership to these proceeds due to the fact the savings account was joint and thereby contend they were vested with a right of sur-vivorship.

Farmers and Merchants Bank initiated an interpleader action to determine which of the claimants were entitled to the funds of Martha L. Copeland which were on deposit in two accounts with the bank. As noted above, Mary Chandler and Lonnie Copeland (as executor of Martha L. Copeland) sought the proceeds of the checking account. Ella Chandler, Mary Chandler and Lonnie Copeland sought the balance of the savings account. The trial court, after an ore tenus hearing, ordered the monies from both accounts be paid to Lonnie Copeland as executor of the estate of Martha Copeland.

Appellants, Mary and Ella Chandler, appeal that order.

Appellants contend the trial court erred in not awarding appellants the balance of the deceased’s bank accounts. Their argument is bottomed on the premise that by virtue of their names being added to the joint checking and/or savings account, Title 5, § 128(2a), Code of Ala.1940, entitles the appellants to the proceeds of the accounts. Although appellants refer to Code of Ala. 1975 § 5-1-25 in support of their claim, Title 5, § 128(2a), Code of Ala.1940, was the applicable statute at the time of the trial.

At the outset, we note Title 5, § 128(2a), Code of Ala.1940, in pertinent part, as it relates to survivorship in checking and savings accounts:

“When a deposit shall hereafter be made in any bank doing business in this state in the names of two persons payable to either of such persons, or payable to the survivor of them, the said deposit shall upon the death of either of said persons become the property of and be paid in accordance with its terms to the survivor, .
“This section shall apply to certificates of deposits, as well as to savings accounts and checking accounts, and shall also apply where a deposit is made in the names of more than two persons where there is a provision for survivorship.
“Nothing contained in this section shall be construed to prohibit the person making such deposit from withdrawing or collecting the same during his lifetime, nor shall the fact that such person had the right to withdraw or collect said deposit during his lifetime operate to defeat the rights herein provided for the person or persons surviving such depositor.”

As noted above, appellants contend that Title 5, § 128(2a), Code of Ala.1940, entitles the survivor of a joint bank account to the proceeds of such account. Such is not the case.

The law is clear, as stated in Street v. Hilburn, 295 Ala. 232, 326 So.2d 724 (1976), that a survivor of a joint bank account is entitled to the proceeds of such account, without a showing of donative intent, if the account provided for a right of survivorship.

If the joint bank account includes a provision of survivorship, the survivor is vested with the proceeds of that account. This statute, therefore, allows the donee to take the balance remaining in the account by precluding any investigation of the donor’s intent after the donor’s death, if a survivor-ship provision is included. See Courchesne v. Johnson, N.H., 373 A.2d 349 (1977); Street v. Hilburn, supra; In re Wszolek Estate, 112 N.H. 310, 295 A.2d 444 (1972); Ward v. Marine National Bank, 38 N J. 132, 183 A.2d 60 (1962).

However, the mere fact that one is a survivor of a joint bank account, without more, does not unequivocally vest the proceeds in the survivor under Title 5, § 128(2a). In the absence of a survivorship provision in a joint bank account, Title 5, § 128(2a), does not preclude an investigation into the donor’s intent to determine the disposition of the proceeds of the account. See Street v. Hilburn, supra; Cox v. Womack, 274 Ala. 1, 145 So.2d 201 (1962).

As the record clearly reveals, Martha L. Copeland merely added names to her joint checking and savings accounts. A survivorship provision was not included. Therefore, by virtue of Street v. Hilburn and Cox v. Womack, supra, the intent of Martha Copeland in adding the names to her account is a relevant inquiry. In the absence of a survivorship provision, it must be shown that the donor intended to make a gift inter vivos. See McEniry v. Coats, Ala., 333 So.2d 568 (1976); Street v. Hilburn, supra; Cox v. Womack, supra.

Appellants did not present any evidence to show Martha L. Copeland intended to make a gift when she added the appellants’ names to her bank accounts. Suffice it to say the trial court could well have found that she did not intend to make a gift by virtue of her will disposing of her monies, i. e., her bank accounts being the only money she had. There was also testimony to the effect that she added these names to insure her bills would be paid in the event she got sick.

To summarize, the presence of a sur-vivorship provision allows a survivor of a joint bank account to take the proceeds of that account without an inquiry into the donor’s intent. However, in this case, there was no survivorship provision and therefore made the donor’s intent pivotal. There being no evidence of an intent to make an inter vivos gift and some evidence to the contrary, the trial court is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.