author: JONES, Justice.

text:
    Mamie K. THOMPSON v. WIIK, REIMER & SWEET, a partnership et al.
    79-540.
    Supreme Court of Alabama.
    Dec. 5, 1980.

      James J. Duffy, Jr., Carroll H. Sullivan, and William C. Barclift of Inge, Twitty, Duffy & Prince, Mobile, for appellant.
    J. Jeptha Hill, Wade B. Perry, Jr., and Steven T. Stine of Johnstone, Adams, May, Howard & Hill, Mobile, for appellees.
   JONES, Justice.

Prior to September 16,1971, Plaintiff-Appellant Mamie K. Thompson and her partner, Sylvia R. McCrary, practiced certified public accountancy in Mobile, Alabama, under the partnership name of McCrary and Thompson. On September 16,1971, the Appellant and Ms. McCrary entered into a written contract to sell their accounting partnership to Defendants-Appellees. The “assets” to be conveyed under the contract were specifically enumerated in an eight-page appendix to the contract and included a list of clients as well as certain items of personal property. The contract also contained the following covenant not to compete:

“A. For a period of six (6) years from October 1,1971, the [Sellers agree] that they shall not, by themselves, whether individually or with others, directly or indirectly:
“(1) canvass, solicit, or accept any accounting business for themselves or for any other accounting firm, from any past, present or future clients of the Buyer, or from any past clients of the Seller;
“(2) give any other person, firm, or association the right to canvass, solicit, or accept any business for any accounting firm, from any past, present or future clients of the Seller or Buyer as the case may be;
“(3) request or advise any present or future clients of Buyer to withdraw, curtail or cancel his, her or their business with Buyer;
“(4) disclose to any other person, firm or association the names of past, present or future clients of the Buyer or Seller;
“(5) induce, or attempt to influence, any present or future employee of Buyer to terminate his or her employment; “(6) engage in the practice of public accounting in Mobile County, Alabama ... or Jackson County, Mississippi, either as an employee, proprietor, partner or stockholder.”

After an initial down payment to the sellers of $10,000.00 on October 1, 1971, the Appellees agreed to make monthly payments of twenty per cent of all accounting fees paid to the Appellees by ex-clients of the McCrary and Thompson partnership. These monthly payments were to commence in January of 1972 and were to continue until December 10, 1977. The contract specifically provided that “. .. no portion of the total consideration ... is to be treated as a payment for ‘goodwill’ . . . and that . . . with the exception of the allocation of $8,200.00 [for the physical assets] the remaining portion of all considerations . . . shall be regarded as payment for the covenant not to compete . . . . ”

For several years Appellees made regular monthly payments to the Appellant as required under the terms of the contract. In June of 1976, however, with approximately one and one-half years remaining on the contract, Appellees ceased making payments to the Appellant, Mamie K. Thompson. Had Appellees continued to make regular monthly payments to Mamie K. Thompson, they estimate they would have paid her an additional $20,340.68 over the term of the contract. In this regard, Ap-pellees concede they continued to make payments to Sylvia McCrary after payments to Mamie K. Thompson were ceased and that during this period of time Ms. McCrary was paid a total of $29,690.68. The Appellees further concede that their decision not to pay the Appellant the amounts due her under the contract of September 16, 1971, was based upon their contention that she was in violation of the covenant not to compete. The Appellant denied this factual allegation and asserted that she fully performed her contractual obligations.

Appellant sought damages of $25,000.00 from Appellees, who thereafter counterclaimed against Appellant. On February 1, 1980, the court granted a motion for summary judgment filed by Defendants-Appel-lees. A motion to reconsider was filed on February 11, 1980. On March 7, 1980, the court entered an order denying the motion to reconsider and further ordered that dismissal of the original suit also include dismissal of the counterclaim. From this order, Mamie K. Thompson appeals.

I. Restrictive Covenants Not to Compete by Professionais.

Appellant contends that the construction of § 8-1-1, Code 1975, which precludes “Professionals” from entering into covenants not to compete, is erroneous and contrary to the intent of the legislature. We cannot agree.

The initial issue presented concerns the enforceability vel non of a covenant not to compete with respect to the profession of certified public accountancy.

Section 8-1-1, Code 1975, provides that contracts in restraint of a lawful profession are void unless otherwise provided in the exceptions thereto. The provision reads as follows:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.
“(c) Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted. (Code 1923, §§ 6826, 6827, 6828; Acts 1931, No. 546, p. 647; Code 1940, T. 9, §§ 22, 23, 24.)”

In Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968), this Court affirmed the decision of a trial judge who had refused to grant an injunction enforcing a restrictive covenant among physicians. The trial Court had ruled that the agreement was void under T. 9, § 22, Code 1940 (now codified as § 8-1-1(a)), and that enforcement of the contract was contrary to public policy and against the best interests of the general public. 282 Ala. at 393, 211 So.2d at 809.

On appeal, this Court held that the agreement in Odess, supra, was void under T. 9, § 22, Code 1940, and that the exceptions contained in § 23 (now codified at § 8-1-1(b), Code 1975) were inapplicable to professionals. This Court reasoned as follows:

“It is significant that the term ‘profession’ is omitted in Section 23. Said section pertains to a ‘business,’ to an ‘agent, servant, or employee’ and to soliciting old ‘customers’ of a former ‘employer.’
“Having included ‘profession’ in Section 22, and omitted this term in Section 23, an affirmative inference is created that the legislature did not intend to. include professions in Section 23, such interpretation being aided by resort to the maxim ‘express» unius est exclusio alter-áis.’ See Weill v. State ex rel. Gaillard, 250 Ala. 328, 34 So.2d 132; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305.”

Odess v. Taylor, 282 Ala. at 396, 211 So.2d at 811.

Subsequent to the decision in Odess, this Court has on at least two occasions confronted the issue of restrictive covenants in the profession of accounting. In Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970), this Court ruled that a covenant not to compete contained in an agreement between partners engaged in the practice of accounting as certified public accountants was unenforceable. Specifically, the Court said:

“Our holding in Odess v. Taylor, supra, is clearly applicable here. There can be no question that the practice of accounting by certified public accountants, as here, is a profession. Having included ‘profession’ in § 22, and omitted this term in § 24, the omission in § 24 of ‘professions’ indicates an affirmative inference that the legislature did not intend to include professions in § 24, such interpretations being aided by resort to the maxim, ‘Expressio unius est exclusio alterius.’ The agreement not to compete is, therefore, void under the provisions of § 22, Title 9, supra." (Emphasis added.)

Gant v. Warr, 286 Ala. at 391, 240 So.2d 355-56.

A most recent statement of the law regarding the validity of restrictive covenants in the profession of accounting is contained in Burkett v. Adams, 361 So.2d 1 (Ala.1978). Holding such an agreement to be unenforceable, the Court reasoned:

“It is well settled that contracts in restraint of trade are looked upon with disfavor. Associated Surgeons, P. A. v. Watwood, 295 Ala. 229, 326 So.2d 721 (1976); Mason Corp. v. Kennedy, 286 Ala. 639, 244 So.2d 585 (1971); and Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953). Furthermore, even a specific covenant not to compete in a profession, trade, or business is void except within the limitations imposed by Tit. 9, §§ 23 and 24, Code. Joseph v. Hopkins, 276 Ala. 18, 158 So.2d 660 (1963). Because the term ‘profession’ is not included within §§ 23 and 24, a contract restraining the practice of a profession is void under § 22. Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968). Thus, should we determine that the practice of public accounting is a profession, the contract presently under consideration must be held void." (Emphasis added.)

Burkett v. Adams, 361 So.2d at 2. The Burkett Court concluded that the practice of a “public accountant” is a profession and that restrictive covenants in restraint of the practice of accounting are void regardless of whether the parties involved are certified public accountants. 361 So.2d 2-3. Here, it is undisputed that Mamie K. Thompson is a certified public accountant.

II. Ala. Code 1975, § 8-1-1, and Section 13 of the Alabama Constitution of 1901.

Appellant argues that § 8-1-1, Code 1975, as interpreted by this Court, is viola-tive of Article I, Section 13, of the Alabama Constitution of 1901. Such assertion lacks substance.

Section 13 makes the following guarantees:

“That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.

Id.

Appellant places paramount emphasis on our decision in Grantham v. Denke, 359 So.2d 785 (Ala.1978), to support her assertions under Section 13. We find such reliance to be misplaced. In Grantham, supra, this Court decided that the legislature was precluded by Section 13 from granting immunity to a co-employee from suit by an injured fellow worker. Grantham spoke to the preservation of an action for negligence and the prohibition against the legislative abolition of a fundamental right explicit in the terms of Section 13. Here, however, our issue is one of contractual ramifications, and the legislative prerogative to effect public policy relative to such contractual rights and obligations.

Appellant argues that inasmuch as § 8-1-1 has been held to prohibit covenants not to compete in a professional context, it operates to deprive the professional of rights and remedies he enjoyed under the common law. Likewise, according to Appellant’s reasoning, a reading of Grantham shows § 8-1-1 to be unconstitutional as applied to professionals. We are disinclined to accept this contention.

Not all statutory enactments that affect common law rights are assailable by analogy to Grantham. The legislature may validly enact statutes that affect “common law rights.” 15A C.J.S. Common Law § 12 (1967). Section 13 only restricts the legislature from making unreasonable, arbitrary and oppressive modifications of fundamental rights contemplated by the constitutional guarantees embodied in Section 13.

III. Ala. Code 1975, § 8-1-1, and Equal Protection.

Appellant next argues that our interpretation of § 8-1-1 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We are unable to find merit in this assertion.

When a State undertakes to create a legislative scheme which treats different classes of persons differently, the scheme must be shown to bear a “rational relationship” to a legitimate State objective sought to be advanced by the statute in question. Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971).

We are unable to agree that the legislature’s failure to include professionals within the exception contained in § 8-1-1(b) is not a rational scheme of classification. This Court has noted that an important distinction must be drawn between the practice of a profession and the transaction of other types of businesses. Odess v. Taylor, supra. See, also, Burkett v. Adams, supra.

IV. Pari Delicto as a Bar to this Action.

Finally, Appellant asserts that the purported illegality of the contract in question should not bar her action as she is not in pari delicto with the other parties to the contract.

As a general principle, a party may not enforce a void or illegal contract either at law or in equity. 17 C.J.S. Contracts § 272, pp. 1188-95 (1963).

The effect of the illegality of a contract is summarized in Corpus Juris Secundum :

“No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out; nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxims, Ex dolo malo non oritur actio, and In pari delicto potior est conditio defendentis. The law in short will not aid either party to an illegal agreement; it leaves the parties where it finds them.”

17 C.J.S. Contracts § 272, p. 1188 (1963).

Appellant states that the general rule precluding recovery at law or equitable relief is not applicable because she was not in pari delicto with Wiik, Reimer & Sweet at the time of the execution of the illegal contract herein. While there is authority to the effect that an exception to the general rule may be given to one of the parties to a void contract if he is not equally guilty with the other contracting party, it is equally apparent that this doctrine should be applied only in limited circumstances. The weight of authority indicates:

“The cases of this character exist generally where the party asking to be relieved from the effect of an illegal agreement was induced to enter into the same by means of fraud; here he is not regarded as being in pari delicto with the other party, and the court may relieve him. The same is held where the complaining party has entered into the illegal contract through the duress or undue influence of the other.”

17 C.J.S. Contracts § 274, p. 1199 (1963).

This Court has had occasion to discuss the “not in pari delicto” argument in Durr Drug Co. v. Acree, 239 Ala. 194, 194 So. 544 (1940). There, the Court stated that it should be reluctant to enforce an illegal contract at the instance of one party who alleges he is not in pari delicto. Specifically, the Durr Court said:

“It is said, however, that ‘courts are and should be cautious in affording relief to a fraudulent debtor or other violator of the law under this exception, and should act only where it is evident that some greater public good can be subserved by action than by inaction.’ ”

Durr Drug Co. v. Acree, 239 Ala. at 197, 194 So. at 546.

There is no claim of, nor do we find, any fraud, overreaching, or unconscionable behavior on the part of any of the parties. Likewise, we cannot subscribe to the contention that Appellant is within the class of persons to be afforded relief under the exception to the general rule. Accordingly, Appellant is in pari delicto and should not be afforded recovery under the illegal contract in question.

AFFIRMED.

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

BEATTY, J., concurs in the result.

      . The Appellant and Ms. McCrary were also to receive 20% of all accounting fees paid to the Appellees by clients referred to the Appellees by them. Also, certain other provisions were made for additional payments and are set forth in detail in the contract.

      . In arriving at this figure the estimate of the Defendant E. W. McKeen, Jr., has been added to the figure given by the other defendants. This same procedure has been followed in arriving at the total figure paid to Ms. McCrary following termination of payments to the partners, as set forth at a later point in this statement of the facts.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Carolyn DANIELS v. STATE of Alabama.
    79-557.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    E. Hamilton Wilson, Jr., Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans and Bernard Sykes, Asst. Attys. Gen., for appellee.
   BEATTY, Justice.

Appeal from a lower court order adjudging the appellant, Carolyn Daniels, to be a juvenile delinquent. We affirm.

On January 18, 1980, N. W. Ward, a deputy sheriff of the Montgomery County Sheriff’s Department, secured a warrant to search the premises located at 3231 Duff Street, Montgomery, Alabama. The warrant was issued on the basis of information supplied by a private informant that marijuana was being sold at the residence. The appellant does not dispute the validity of the warrant nor does she contest the existence of probable cause; rather, she challenges the manner in which the warrant was subsequently executed.

The record shows that Ward and three other deputies proceeded to the Duff Street residence to execute the warrant. Ward and one of the deputies went to the front door of the home while the other two deputies went to the back door. Ward testified that he knocked on the front door approximately four or five times and received no response. Ward then announced himself as a deputy sheriff of Montgomery County with a search warrant for the residence. Again no one answered the door. At that point, having heard movement within the house, Ward hit the door with his shoulder and forced his way in. Ward testified that approximately two or three minutes elapsed from the time he knocked on the door until the time he made his forcible entry.

Upon entering the residence Ward observed the appellant, a seventeen year old black female, coming out of one of the bedrooms. While Ward approached the appellant to read her the warrant, one of the accompanying officers proceeded into the bedroom and pulled eleven partially burned manila coin envelopes from the fireplace. Each of these envelopes contained small quantities of marijuana. In addition, marijuana was discovered in a coat in the closet of the bedroom and five larger plastic bags containing marijuana residue were lying on the floor of the bedroom.

At trial, appellant testified that she was at the residence to clean the house of the occupant. According to her, she heard the knocking at the door, but before she could answer, the door was forced open. She denied having any knowledge of the marijuana in the fireplace.

On the basis of this evidence, the trial court found the appellant guilty of possession of marijuana and adjudged her to be a juvenile delinquent. She was then committed to the Alabama Department of Youth Services and fined one hundred dollars. The commitment was subsequently suspended in lieu of a period of probation.

The sole issue raised on this appeal is whether the law enforcement officers complied with the provisions of Code 1975, § 15-5-9 in executing the search warrant. More specifically, were the officers justified in making a forcible entry into the residence when they waited only two or three minutes after announcing their identity and purpose? We find that there was a sufficient compliance with the provisions of § 15-5-9 and, therefore, hold that the search warrant was validly executed.

Code 1975, § 15-5-9 represents Alabama’s version of a so-called “knock-and-announce” statute and provides in pertinent part that:

To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.

The United States Supreme Court has extensively examined the constitutional significance of these statutes on at least three occasions. See, Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), and Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). In doing so, the Court has declared these statutes to be of paramount importance in safeguarding the rights of individuals afforded under the Fourth Amendment to the United States Constitution. As noted by Justice Brennan in Miller, supra, at 357 U.S. 313, 78 S.Ct. at 1197:

The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 [the comparable federal statute] the reverence of the law for the individual’s right of privacy in his house. Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.

We therefore, recognize that fundamental constitutional principles for privacy of the home foreclose any “grudging application” of our State statute.

The constitutional requirement of announcement serves basically three purposes: (1) the prevention of violence or physical injury to the police and to innocent persons who may also be present on the premises, (2) avoidance of unexpected exposure of the occupant’s private activities, and (3) prevention of property damage resulting from a forced entry. 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 6.3 (2d ed. 1979); 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.8 (1978). Yet, at the same time, there exists the countervailing concern to preserve surprise, and thereby prevent escape and the possible destruction of evidence. As a result, both state and federal courts have held that the exigencies of any given situation must be considered in balancing the individual’s right to privacy and the public’s corresponding interest in the prevention of crime and apprehension of criminals. 68 Am.Jur.2d Searches and Seizures § 91 (1973). In executing a search warrant, circumstances may exist which justify an unannounced and immediate entry. See e. g., United States v. Singleton, 439 F.2d 381 (3rd Cir. 1971); United States v. Garcia, 437 F.2d 85 (5th Cir. 1971); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966); see generally Annot., 21 A.L.R.Fed. 820 (1974). Likewise, exigencies may justify a forcible entry after waiting only a brief time after announcement. See e. g., United States v. Allende, 486 F.2d 1351 (9th Cir. 1973); United States v. Cruz, 265 F.Supp. 15 (W.D.Tex.1967); United States v. Poppit, 227 F.Supp. 73 (D.Del.1964). Therefore, what constitutes a sufficient compliance with the announcement statute is necessarily dependent upon the peculiar circumstances confronting the executing officer. Laffitte v. State, 370 So.2d 1108 (Ala.Cr.App.1979). There are simply no set rules on the length of time an officer with a warrant must wait before using force to enter a house. United States v. Jackson, 585 F.2d 653 (4th Cir. 1978); United States v. Phelps, 490 F.2d 644 (9th Cir. 1974).

In resolving the present controversy we have examined a number of federal cases concerning compliance with 18 U.S.C. § 3109, the federal “knock-and-announce” statute. In cases factually similar to the present appeal, federal courts have held that officers were justified in making a forcible entry after announcing their purpose and waiting less than two minutes. United States v. Phelps, 490 F.2d 644 (9th Cir. 1974) (waited approximately 20 seconds); United States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973) (waited 30 seconds); United States v. Woodring, 444 F.2d 749 (9th Cir. 1971) (waited approximately one minute); United States v. West, 328 F.2d 16 (2nd Cir. 1964) (waited 30 seconds); United States v. Hanna, 260 F.Supp. 430 (S.D.Fla.1966) (waited one minute and 15 seconds). A survey of numerous State cases indicates a similar result. People v. Elder, 63 Cal.App.3d 731, 134 Cal. Rptr. 212 (1976); People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971); State v. Baca, 87 N.M. 12, 528 P.2d 656 (1974); see generally Annot., 70 A.L.R.3d 217 (1976). It is true that in several of these eases officers heard “scuffling” or “scampering” sounds which warranted prompt action; however, Ward testified in the present case that he definitely heard “movement” within the residence. Knowing someone was in the house and having waited two or three minutes, the officers were justified in concluding that they were denied admittance. The occupant’s failure to respond within a reasonable time was tantamount to a refusal. United States v. James, 528 F.2d 999 (5th Cir. 1976). We, therefore, hold that the Montgomery County law enforcement officers waited a sufficient period of time before entering the residence and thereby acted properly in executing the warrant.

Accordingly, the lower court order is due to be, and is hereby, affirmed.

AFFIRMED.

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

      . For a detailed discussion of the history and development of “knock-and-announce” statutes, see Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 499 (1964).

        . 18 U.S.C. § 3109 is virtually identical to Code 1975, § 15-5-9 and provides:
      The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.


author: SHORES, Justice.

text:
    Gus N. JEBELES v. Gus V. COSTELLOS. Gus V. COSTELLOS v. Gus N. JEBELES.
    79-552, 79-589.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    Douglas Corretti and Samuel Maples of Corretti, Newsom & Rogers, Birmingham, for appellant Gus N. Jebeles-79-552 and for appellee Gus N. Jebeles-79-589.
    Tommy Yearout of Lorant, Harris & Yearout, Birmingham, for appellee Gus V. Costellos-79-552 and for appellant Gus V. Costellos-79-589.
   SHORES, Justice.

This is an appeal and a cross-appeal by two business partners from a final decree rendered in a ease brought by one of the partners seeking an accounting and dissolution of the partnership. The court ordered an accounting, but refused to dissolve the partnership. The court made the following findings of fact:

Plaintiff and Defendant, brothers-in-law (up to the time of a divorce between Plaintiff and his wife, the sister of Defendant) entered into an oral partnership agreement on or about September 2, 1977 under the business name of “Dino’s Hot Dogs” at a location on Montgomery Highway in Jefferson County, Alabama, which said location is highly advantageous and valuable to this going business. The lease to the premises was procured, largely, through the efforts of Plaintiff. Plaintiff has been, for a number of years, the owner of other establishments of like nature and has developed an expertise in the conducting of this type of business enterprise. Also Plaintiff has furnished to the partnership a logo which is utilized by the partnership. The Plaintiff is senior, by number of years, to Defendant. The partnership was created at a time when a happy family relationship existed between the members of the separate families of Plaintiff and Defendant and this condition existed until a time when marital difficulties began between Plaintiff and his wife, the sister of Defendant. When these difficulties began to develop a rift was created between Plaintiff and Defendant. At about the time of the divorce proceedings, the Defendant [in January, 1979] ceased to remit any sums to Plaintiff as his share of the profits of the partnership, changed the locks on the doors to the establishment and has failed or refused to furnish Plaintiff with an accounting of the partnership business. It is clear to the Court from the evidence that the Defendant devoted nearly all of his time to the operation of the business and that the Plaintiff devoted relatively little time thereto. At a time when the partnership was first instituted and the parties and their families were happy with one another, a loose arrangement was made between Plaintiff and Defendant relative to the work hours which each of them would devote to the business and there has never been (according to the evidence) any fixed arrangement, either orally or in writing, as to how many hours and on what days each partner should work at the business location....
The business, continually and up to the present time, is operating six days a week under the management of Defendant and is operating profitably....
Because of the unhappy and hostile attitude that exists between Plaintiff and Defendant, and their respective families, it is evident that these two men cannot engage in a business undertaking in a manner which would occasion the contacts that normally exist between partners in an active business. . . .
The partnership business premises are leased, under a joint written lease, for an extended period of time, with a right and option to renew. Both parties are, of course, subject to the benefits and the liabilities of that lease and this situation will continue during the life of the lease, which, very probably, is the most valuable asset of the partnership and is not trans-ferrable without the written consent of the lessor.

On November 19, 1979, Jebeles filed his complaint seeking a dissolution of the partnership and a full and complete accounting by Costellos for all profits received since December 3, 1978. Costellos counterclaimed that there was no partnership agreement, but that, if there was one, Je-beles breached it.

The court did not dissolve the partnership. Instead, in order to retain the business’s future profits and the valuable lease, the court continued the partnership “with Defendant as the sole active partner and the Plaintiff as a silent partner.” The court deemed it “just and fair that in this partnership the work hours of the respective parties should be entirely, or very nearly, identical,” but found that under the circumstances

such an arrangement is not feasible, nor is it to the best interest of either party. The Plaintiff is entitled to a continuing share in the partnership profits, but only to the extent set forth hereinafter. These benefits accrue to him by virtue of the contributions made by him to the partnership as stated hereinbefore. . . . However, it is the business of this Court, in the exercise of the powers and duties of a Chancellor in Equity, to settle the issues between the parties in a manner which would be most beneficial to the parties and would most fairly deal with the past and future profits of the partnership business. . . . [The parties’] respective interests are equal, that is, fifty-fifty (50-50).
Thus, the court ordered:
ONE: The partnership shall continue and is not dissolved and, from the date of this decree forward, the partners shall share in the net profits, after payment of all expenses, as follows: Twenty percent (20%) to the Plaintiff (without salary) and eighty percent (80%) to the Defendant (without salary).
TWO: All of the assets of the partnership, whether real, personal or mixed in nature, including the goodwill of the partnership shall be the property of the parties in the manner following: One-half (Vfe) thereof to Plaintiff and one-half (V2) thereof to Defendant; and nothing which is contained in the other portions of this order shall derogate from these interests.
THREE: There is a necessity that an accounting be had between the partners and the cause is referred to ... [a] Special Master to conduct an accounting between the parties on the basis of a fifty-fifty (50-50) partnership arrangement up to the date of this decree. From the date of this decree the arrangement as set forth in paragraph ONE, above, shall obtain and continue for the life of a contract of partnership. From the date of this decree, under the new distributive arrangement, the Defendant shall render to Plaintiff a monthly statement of profits and losses along with payment to Plaintiff of any distributive share which may be due to him.
FOUR: The aforementioned Special Master shall render his report to the Court, upon completion, and no transcript of the proceedings before the Special Master shall be made by the Special Master unless requested, in writing, by either party. The costs of the services of the Special Master shall be taxed as a part of the costs of court in this cause.. . .
FIVE: The costs which have accrued to date and which shall accrue hereafter are taxed as follows: One-half (V2) to Plaintiff and one-half (Vz) to Defendant.

Both parties appealed from the court’s decree. We hold that the court erred by refusing to dissolve the partnership and order a termination and accounting. We reverse the decree and remand the cause for proceedings consistent with this decision.

The court here has exceeded its discretion by fashioning a remedy which is at odds with the Alabama law of partnerships, as codified in Ala. Code 1975, § 10-8-1 et seq., and the express will of the parties. An equity court cannot ignore established law in shaping its remedy, 27 Am.Jur.2d Equity § 123 (1966).

As no definite term was specified in the oral partnership agreement, the partnership may be dissolved at the will of either party. Ala. Code 1975, § 10-8-91(l)b:

Dissolution is caused:

(1) ...
b. By the express will of any partner when no definite term or particular undertaking is specified. . . .

On application by either party, the court is required to order a dissolution under the provisions of § 10-8-92. Several of the grounds set out in that section are applicable to this situation in view of the court’s findings.

A partner’s right to an accounting of his interest accrues at the date of dissolution, Ala. Code 1975, § 10-8-98. There can be no partnership settlement or accounting until there is a dissolution. See Hunter v. Parkman, 259 Ala. 596, 67 So.2d 797 (1953); Tanner v. Easter, 290 Ala. 208, 275 So.2d 640 (1973). The court erred to reversal in ordering an accounting without dissolving the partnership and in establishing and imposing a new partnership agreement on the parties.

On remand the court should follow the procedure for dissolution of the partnership as set out in § 10-8-97.

REVERSED AND REMANDED.

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


author: MADDOX, Justice.

text:
    HIBBETT SPORTING GOODS, INC. v. Ralph BIERNBAUM et al.
    79-718.
    Supreme Court of Alabama.
    Dec. 19, 1980.

      J. A. Keller of Keller & Cochran, Florence, for appellant.
    George W. McBurney of Poellnitz, Cox, McBurney & Jones, Florence, for appellees.
   MADDOX, Justice.

Appellant, Hibbett Sporting Goods, Inc., brought suit to enjoin the appellees from leasing a portion of Regency Square Mall to Athletic Footwear, also referred to as Athlete’s Foot. Hibbett had entered into a long-term lease with Biernbaum, one of the appellees, under which Hibbett claimed that the parties had orally agreed that Biernb-aum would not lease space in Regency Square Mall to “another sporting goods business or sporting goods store.” This Court, on a prior appeal, found that the “oral contract” was enforceable, Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So.2d 431 (Ala.1979), and remanded the case to the trial court for a decision regarding whether the proposed lease to Athlete’s Foot would violate that contract.

The trial court, after a bench trial, found:

It is uncontroverted and the court finds further that the defendant Athletic Footwear of Birmingham is engaged in the business of selling sporting goods at its retail establishment in the Regency Square Mall.

The trial court also found, however:

[T]he terms “sporting goods,” “sporting goods store,” and “sporting goods business,” are subject to varying descriptions, definitions, categorization, and understandings in the shopping center, athletic, and sporting goods industries.

That court finally stated:

Agreements of the type relied upon by the plaintiff in this cause are in restraint of trade and, consequently, must be positively expressed and understood.

The trial judge denied Hibbett’s request for an injunction.

Basically, three issues are presented in this appeal: (1) whether the trial court erred in failing to enjoin the appellees from continuing to operate a retail sporting goods store in Regency Square Mall; (2) whether the trial court erred in finding that there was no “mutual understanding or meeting of the minds” between the parties in regard to the agreement; and (3) whether the trial court erred in finding that the contract in question was “in restraint of trade.”

The trial court found that the contract was in restraint of trade. Because it appears that this contract is not of the type classified as “in restraint of trade,” we will dispose of this issue first. Code 1975, § 8-1-1 states:

(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.

As this Court stated in Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So.2d 619 (1963):

In Buckalew v. Niehuss, 249 Ala. 585, 32 So.2d 299, we said:
“It is true that contracts in general restraint of trade violate the policy of the law and are therefore void, but as observed in Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 73 So. 889:
“ ‘ * * * Every contract, however, which at all restrains or restricts trade, is not void; it must injuriously affect the public weal; that it may affect a few or several individuals engaged in a like business does not render it void. Every contract of purchase and sale to some extent injures other parties; that is, it necessarily prevents others from making the sale or sales consummated by such contract. * * *
‘Contracts in partial restraint of trade are always upheld, when properly restricted as to territory, time, and persons, where they are supported by sufficient consideration’. * * * ”
See also Denton v. Alabama Cotton Co-op. Ass’n, 30 Ala.App. 429, 7 So.2d 504.

275 Ala. at 193, 153 So.2d 619 (emphasis added).

Under the contract, Biernbaum is prevented only from leasing ■ space in Regency Square Mall to another “sporting goods store”; therefore, the contract is sufficiently limited as to time, territory and type of business. The contract obviously is in partial restraint of trade, but because it is sufficiently limited in geographic area and type of business restrained, it is not void.

The issue which is central to a decision in this case is whether or not there was a meeting of the minds between the parties as to the meaning of the term “sporting goods store.” The trial court found that the plaintiff Hibbett “failed to carry the burden of reasonably satisfying the court that there was a mutual understanding or meeting of the minds between the parties.”

The principal point of dispute between the parties is the meaning of the term “sporting goods” or “sporting goods store.” Hibbett contends that items such as shoes, warm-up suits and socks are sporting goods. Biernbaum classifies these as apparel or sportswear. Thus, at first blush, there would appear to be no meeting of the minds between the parties.

Both Hibbett and Biernbaum, however, were experienced in the shopping center field. Hibbett had been in the sporting goods business since 1950, and Biernbaum had been a shopping center developer since 1940. Both men were members of trade associations or, at least, subscribed to trade publications and attended conventions and shows for their particular trade.

The general rule of construction used by this Court is that “words of agreement will be given their ordinary meaning.” Flowers v. Flowers, 334 So.2d 856 (Ala.1976). The term “sporting goods store,” if given its ordinary meaning, would include stores such as those operated by Athlete’s Foot.

It is axiomatic that where the trial court makes a decree after hearing the witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed unless palpably wrong. Smith v. McNaughton 378 So.2d 703 (Ala.1979). To determine whether the learned trial judge’s findings of fact were palpably wrong in this case, we must examine the evidence presented by the parties during the trial. The plaintiff introduced into evidence the telephone directories of various cities (Atlanta, Birmingham, Chicago, Dallas, Jackson, and Nashville) which showed that Athlete’s Foot was listed in the yellow pages of those directories under the classification “Sporting Goods — Retail.” This evidence Hibbett contended, showed that Athlete’s Foot considered itself to be a “sporting goods store.” Hibbett also introduced into evidence several articles from sporting goods trade journals in support of its contention that Athlete’s Foot was viewed in the trade as a “sporting goods store.”

Athlete’s Foot, on the other hand, presented expert testimony from shopping center developers who testified generally that they considered Athlete’s Foot to be a “shoe store” instead of a “sporting goods store.”

All of this evidence presented by the parties, while of some benefit to us in determining the issue presented on appeal, nevertheless, is of little value to us as we consider the critical question of what Hib-bett and Biernbaum mutually understood a sporting goods store to be at the time they entered into their agreement.

The important question is how was Athlete’s Foot categorized by Biernbaum and Hibbett at the time they made their agreement. It is clear that there was a period of discussion between representatives of Athlete’s Foot and Biernbaum prior to their entering into the lease agreement which is the subject matter of this action. During that time, Hibbett became aware of the discussions and advised Biernbaum of his agreement not to lease to another “sporting goods store.” Biernbaum told Hibbett that he would limit Athlete’s Foot to selling only “sneaks and flats” if, in fact, he did lease to Athlete’s Foot, and that he would enforce that limitation. Subsequently, he instructed Henry King, the leasing agent for Regency Square to tell representatives of Athlete’s Foot that they could sell only “sneaks and flats.” Athlete’s Foot refused to lease with such limitations in effect. Biernbaum subsequently entered into the lease with Athlete’s Foot.

The evidence of what Biernbaum actually did after he entered into the agreement with Hibbett shows indisputably that at that time, he and Hibbett were in agreement that if Biernbaum leased to Athlete’s Foot and if Athlete’s Foot sold anything other than “sneaks and flats,” the agreement would be violated.

This Court has held that “a prom-isor is held strictly to the literal terms of his promise.” Alpine Construction Co. v. Water Works Board of City of Birmingham, 377 So.2d 954 (Ala.1979); Poughkeepsie Savings Bank v. Highland Terrace Apartments, 352 So.2d 1108 (Ala.1977). Thus, based on the evidence presented, we determine that the trial court’s finding that there was no meeting of the minds on the definition of a “sporting goods store” is clearly wrong. As between Hibbett and Biernbaum, it is clear that Biernbaum’s understanding and Hibbett’s were the same at the time the agreement was made. Under the facts of this case, as shown by the evidence, Biernbaum, by his very actions, showed that he understood that Athlete’s Foot was a “sporting goods store.” We obviously do not decide whether Athlete’s Foot would be a “sporting goods store” or a “shoe store” under a different factual setting. We only decide this case.

The judgment is due to be reversed and remanded.

REVERSED AND REMANDED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.


text:
    Janice Nell WARD v. SABEN APPLIANCE COMPANY et al.
    79-754.
    Supreme Court of Alabama.
    Dec. 19, 1980.

      John R. Formby, Jr., Wetumpka, for appellant.
    J. Michael Crouch, Birmingham, for ap-pellee Saben Appliance Co.
    Robert W. Bradford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Brenda Allen, Inc.
   MADDOX, Justice.

Is a civil action “commenced” for purposes of tolling the applicable statute of limitations when an attorney files a complaint but directs the clerk to withhold service of process in the case? That is the central issue of this appeal.

On September 17, 1979 appellant Janice Nell Ward filed her complaint in the circuit court of Montgomery County seeking damages against the appellees, Saben Appliance Company, Inc., and Brenda Allen, Inc., for personal injuries allegedly suffered by her on September 16, 1978, when she slipped and fell on the appellees’ business premises. September 17,1979, was clearly the last day for filing the negligence claim prior to the running of the one-year statute of limitations. The alleged injury occurred on September 16,1978, a Saturday, but September 16,1979 was a Sunday; therefore, the filing of the complaint on September 17, 1979, was otherwise timely. After filing the complaint in the clerk’s office, however, the appellant’s attorney directed the clerk to withhold personal service until he could obtain additional information on the case. The appellant’s attorney, who was apparently retained only a short time prior to the date the applicable statute of limitations would bar the claim, claims that his request for withholding service was made to allow further investigation of the case and possibly prevent the pursuant of a frivolous claim or unnecessary litigation.

Upon receiving additional information concerning the extent of the appellant’s injuries, appellant’s attorney instructed the clerk’s office to proceed with service. Ap-pellees were eventually served on January 18, 1980.

In response to the complaint, which contained both a negligence claim and a contract claim, appellees filed a motion to dismiss which, by agreement of the parties, was treated as a motion for summary judgment. On February 29,1980, the trial court ruled that the filing of the complaint with the clerk’s office was only an “equivocal” filing and was not sufficient to toll the running of the statute of limitations. The negligence action was, therefore, held to be untimely filed. Subsequently, on May 20, 1980, the court granted summary judgment in favor of appellees on the breach of contract claim. The present appeal is expressly limited to the trial court’s ruling on the negligence count

The crucial question is what effect did the request by appellant’s attorney that service be withheld have upon the question of when the appellant’s claim was “commenced.” Both the Alabama and Federal Rules of Civil Procedure expressly provide that “[a] civil action is commenced by filing a complaint with the court.” See, Rule 3, ARCP, and Rule 3, FRCP. A major function of these rules is to identify, with certainty, the specific time when a civil action is initiated. The filing of a complaint is, therefore, a significant factor in commencing actions and suspending the operation of applicable statutes of limitations; however, it is not the sole factor.

A review of the events surrounding the adoption of Rule 3, FRCP, reveals that the Advisory Committee adopted a “noncommittal attitude” in drafting a rule which would specify “commencement” in terms of tolling the running of statutes of limitations. 2 Moore’s Federal Practice ¶ 3.07[1] (2d ed. 1948). In doing so, the committee consciously avoided the question now confronting us, viz., does the mere filing of a complaint toll the statute of limitations? 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056 (1969). Professor Moore offers the following explanation:

“Although fully aware of the question as to the effect of Rule 3 in relation to statutes of limitations, the Advisory Committee refrained from drafting a clarifying provision. It proceeded on the theory that since Rule 3 might or might not affect statutes of limitations, which in turn probably involved a matter of substance, the complex problem should be left for determination of the courts, without the hindrance of an express provision commanding or prohibiting a particular decision.”

2 Moore’s Federal Practice ¶ 3.07[1], at 3-46 (2d ed. 1948). What resulted was a state of confusion as to whether commencement under Rule 3 was commencement for all purposes. It is now generally recognized that a mere filing of a complaint is not commencement in all cases. Local courts, by local rule, have specified additional steps for the commencement of a law suit. See, generally Annot., 27 A.L.R.2d 236, 256 (1953).

Like the federal rule, the Alabama rule reveals a “noncommittal attitude” on the issue presently confronting this Court. Contrary to the arguments of the appellant, the rule does not specify that the mere filing of a complaint will constitute commencement for all purposes. The Committee Comments accompanying Rule 3, ARCP, indicaté that, when adopted, the rule was in accordance with existing Alabama practice. At that time Code of 1940, Tit. 7, § 43, governed the commencement of actions and provided that “[t]he filing of the complaint, bill of complaint, or other statement of plaintiff’s cause of action, in the office of the clerk or register of the circuit court, or other ministerial office of courts of like jurisdiction, shall constitute the commencement of suit.” This statute amended a prior statute which provided that “the suing out of the summons” would constitute the commencement of a suit. See, Code of 1886, § 2631. All of these prior statutes were intended to pinpoint a definite time for the commencement of civil actions. Likewise, they were intended to specify a time which would not be dependent upon actual service of process. In examining the history of the 1886 commencement statute, the Court, in West v. Engel, 101 Ala. 509, 14 So. 333 (1893), noted that: •

“. . . The occasion for the adoption of this statute was, no doubt, that it was the practice of the King’s Bench and Common Pleas in England, and in some of the States, not to hold the suit as commenced until the writ was served and returned.— Johnson v. Farwell, 7 Greenl. 372. Under such a practice, the statute of limitations might be indefinitely suspended, putting it often in the hands of the parties, on the one side or the other, as interest might suggest, to determine when a suit should be considered as commenced. It is of importance that the period of the commencement of the running of the statute of limitations of actions, and the end of its running, shall be definitely fixed in the law. It is said, therefore, that, except in Connecticut and Vermont, the issuing and suing out of the writ is the commencement of the action, and in those States, the service is the commencement. —1 Amer. & Eng.Encyc. of Law, 184, and authorities under note 4.” (Emphasis supplied.)

It is plain, from a reading of the law, that the commencement of actions is intricately related to the running of statutes of limitations. Both West and other cases indicate that it is extremely desirable to have some specified act to fix the date when the action is begun which tolls the running of the statute of limitations. For example, after recognizing the need to establish a definite time for tolling statutes of limitations, the Court, in West, went on to consider the question of when a summons could be said to be sued out. The actual suing out of the summons was a physical act which could be identified; however, the Court noted that sometimes the ‘bona fide intention” which accompanies an act is important. The Court, at 101 Ala. 509-510, 14 So. 334, reasoned as follows:

“In Burdick v. Green, 18 Johns. 14, it was held that the issuing of the writ is the commencement of the action, in all cases where time is material, so as to save the statute of limitations; and that it is not necessary to show that it was actually delivered to the sheriff, but sufficient if made out and sent to him by mail or otherwise, with a bona fide, intention of having it served.
******
“Ross v. Luther, 4 Cow. 158, is a case directly in point, where it was held, that the issuing of the writ was the commencement of the action; that the mere filing it up is not sufficient; it must be either delivered to the sheriff or sent to him by mail or otherwise, with a bona fide, absolute, unequivocal intention to have it served; that if delivered to an agent or messenger who has power to determine, when or whether it shall be given to the sheriff, the writ is not deemed issued, nor the suit commenced. .. .
******
“In this State, the practice is to allow an alias summons and complaint, whenever an action has been commenced but not served. Without the commencement of a suit, an alias writ is anomalous. A summons may be signed by the clerk and dated and allowed to lie dormant in his office until the next term or he may hand it to the attorney for the plaintiff, and he may keep it in his possession and never deliver it to the sheriff, and in neither case could the summons be said to have issued, or the suit commenced, nor would an alias lie upon it at the next term.
“Our conclusion, therefore, from our own and other adjudged cases, is, that a summons can not be said to be sued out, under our statute, until it passes from the hands of the clerk to the sheriff, or other proper office, to be executed or sent by mail or otherwise, with a bona fide unequivocal intention to have it served.” (Emphasis supplied.)

Appellant relies heavily upon the holding of this Court in Horn v. Pope, 205 Ala. 127, 87 So. 161 (1920), which does indeed state that a suit is commenced by filing a complaint with the clerk.

In Horn, the Court applied the law to the facts of that case and concluded:

“Under the Code of 1896, § 2814, it is provided that the 'suing out of a summons is the commencement of a suit.’ West v. Engle, 101 Ala. 509, 14 So. 333; Ware v. Swann & Billups, 79 Ala. 330. The foregoing section was amended, however, by Act of 1903, p. 370, and as amended became section 4853 of the Code of 1907, and provides that the commencement of the suit is the ‘filing of the complaint, * * * or other statement of plaintiff’s cause of action, in the office of the clerk of the circuit court, register in chancery or other ministerial office of courts of like jurisdiction.’ The complaint in this cause was filed in the office of the circuit clerk within a year after the cause of action arose, and intercepted the statute of limitations, notwithstanding the summons was not issued for more than a year thereafter. Farmers’ Oil Co. v. Melton, 159 Ala. 469, 49 South. 225.
* * * * * *
“As above noted, the suit was commenced by filing the complaint with the clerk, though of course no order or judgment could have been taken upon same until the defendant was served with process or voluntarily appeared. The cause was placed upon the docket, and at the succeeding term (spring of 1918) was continued. The plaintiff, at the fall term of 1918, while the cause was still pending, procured an order for the issuance of a summons upon the defendant and an alias complaint. This was in no sense an abandonment of the pending or original cause so as to operate as a discontinuance of same, but was merely an effort on the part of the plaintiff to get the cause in shape for the prosecution of same by having the defendant summoned to answer the complaint as originally filed; the alias being intended as a mere duplicate or copy of same. The plaintiff was guilty of no act or omission amounting to an abandonment of the cause, and was not chargeable with the neglect of the clerk in not promptly issuing a summons after he had filed his complaint, and the fact that he obtained an order at the fall term 1918 for a summons and alias complaint indicated a purpose to prosecute his pending cause to a finish, rather than the abandonment of same and the commencement of a new action. Forrester v. Forrester, 39 Ala. 320; Ex parte Humes, 130 Ala. 201, 30 South. 732.”

In Horn, this Court specifically pointed out that “[t]he plaintiff was guilty of no act or omission amounting to an abandonment of the cause, and was not chargeable with the neglect of the clerk in not promptly issuing a summons after he had filed his complaint. . . . ” In Horn, the Court noted that the plaintiff’s actions “indicated a purpose to prosecute his pending cause to a finish. . .. ” Here, plaintiff’s action, through her attorney, in directing the clerk to withhold service until her attorney could further investigate the claim, while not necessarily an indication of an abandonment of her claim, was an indication that the filing of the complaint was only an equivocal act. In any event, the attorney’s action was the cause of the clerk’s failure to promptly issue a summons.

We recognize that these older cases involve the interpretation of statutes no longer in existence. Even so, they reveal the law as espoused by this Court. Whether the physical act which commenced a civil action was the suing out of a summons or the filing of a complaint, extraneous factors wholly outside the statutes were relevant in determining the actual commencement of the suit. It was this procedure which Rule 3, ARCP, was intended to incorporate.

Several federal cases, applying Rule 3, FRCP, have embodied requirements which make a bona fide intention to pursue the claim a fundamental prerequisite to commencement. See, e. g., United States v. Spreckles, 50 F.Supp. 789 (N.D.Cal.1943). Various states with commencement statutes similar to Rule 3, ARCP, have held that a civil action is commenced only when the complaint or other pleading is filed with the intention of having it served in due course. Louisville & N. R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936) (action not commenced when plaintiff’s attorney filed the complaint but failed to deliver the complaint for process); Green v. Ferguson, 184 S.W.2d 790 (Mo.App.1945) (action not commenced where plaintiff’s attorney filed a petition but instructed the clerk to withhold process); Erving’s Hatcheries, Inc. v. Garrott, 168 So.2d 52 (Miss.1964) (action not commenced where plaintiff’s attorney filed a complaint but instructed the clerk to withhold process); Deboer v. Fattor, 72 Nev. 316, 304 P.2d 958 (1956) (action not commenced where plaintiff’s attorney filed a complaint but failed to deliver the complaint to the sheriff for service). See also, Annot., 27 A.L.R.2d 236 (1953). Thus, as generally stated in 1 C.J.S. Actions § 129 (1936):

“Intention to commence an action must be considered, for while the intention is insufficient without actually doing the required act, so also is the doing of such act without an actual, bona fide intention that it shall operate as a commencement of the action.”

We hold that in the present case the action was not “commenced” when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.

Accordingly, the judgment of the trial court granting appellees’ motion for summary judgment on the negligence claim is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Jimmy HARRISON and Ruth Harrison v. Johnnie L. MITCHELL.
    Civ. 2305-X.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1980.

      George E. Carpenter and Stanley E. Mun-sey of Rosser & Munsey, Tuscumbia, for appellants.
    John 0. Morrow, Jr. of Wilson & Morrow, Florence, for appellee.
   BRADLEY, Judge.

Defendant, Jimmy Harrison, appeals from a judgment in the amount of $5,000 plus interest for an assault and denial of his motion for mistrial, and for judgment n. o. v. or, in the alternative, a new trial. Plaintiff, Johnnie L. Mitchell, cross-appeals from the order of the court granting a directed verdict in favor of defendant as to plaintiff’s slander of title count in his complaint.

The facts show that David Harris and his wife had entered into a contract to buy four acres of land in Lauderdale County from Johnnie Mitchell and his wife for $12,000. Sometime afterward the Harrises, along with some friends, went to the site of the property to look it over. While there, defendant Harrison walked up to the truck where Mrs. Harris was sitting and asked what they were doing there. She replied that they were planning to buy the property and they were looking it over. Harrison told her and her husband and Mr. Tate, one of the friends, that the property belonged to him and not to Mitchell.

Several weeks later Mitchell and Harris, the prospective purchaser, went to the site of the property where they were to meet a surveyor who had been engaged to survey the property in accordance with Mitchell’s warranty deed. While parked in the road in front of the subject property and before the surveyors arrived, Mitchell and Harris observed Harrison walk out of his house and walk toward them.

Mitchell informed Harrison that he was about to have the property lines surveyed. Harrison replied that no one, including Mitchell, would enter his property for that purpose. Mitchell and Harris started walking toward their car and Harrison walked back to his house. Upon reaching the car Harris told Mitchell, whose back was to Harrison’s house, that Harrison was coming toward them with a shotgun. While walking toward Harris and Mitchell, Harrison was loading the shotgun.

Mitchell told Harris to go to a phone and call the sheriff and then Mitchell walked down the road toward Harrison. When they were about thirty or forty feet apart, with Mitchell in the road and Harrison on his property, an acrimonious conversation ensued, during which Harrison leveled his shotgun at Mitchell and said, “You sorry son-of-a-bitch, I’ll kill you right now.” He repeated that the property in question was his and no one was going on it to survey it or do anything else to it.

Mitchell did not attempt to leave the scene or to disarm Harrison, but he did talk to him. Finally Harrison went back to his house and reappeared without his shotgun.

Shortly afterwards the police chief from a nearby town arrived and Harrison walked back down to where Mitchell and Harris were in the road. The policeman talked to Harrison and Mitchell and then left. Mitchell and Harris were the last to leave.

The survey was not made until several months later and in the meantime the Har-rises had asked Mitchell to be released from the contract to purchase. They were released and their earnest money refunded.

Mitchell filed an action against Harrison in May 1979 for assault and slander of title to real estate. Trial was had before a jury. At the conclusion of plaintiff’s case defendant moved for a directed verdict as to both counts of the complaint. The court denied the motion as to the assault count and granted it as to the slander of title count; and, after evidence from defendant and rebuttal from plaintiff, the case went to the jury on the assault count. A verdict in favor of plaintiff for $5,000 was returned. Harrison then filed his motion for judgment n. o. v. or, in the alternative, a new trial, which was denied.

In brief Harrison argues that Mitchell failed to prove an assault, that he failed to prove any damages, that he failed to prove he could have retreated and thereby avoided the encounter, and that the trial court erred in denying his motion for mistrial and its refusal to keep out of the trial extraneous matters that were prejudicial to his case.

In Western Union Telegraph Co. v. Hill, 25 Ala.App. 540, 150 So. 709, cert. denied, 227 Ala. 469, 150 So. 711 (1933), the Court of Appeals of Alabama defined an assault as:

[A]n intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.

After proof of an assault has been made, the jury may award the plaintiff nominal or compensatory damages “for the insult and the indignity, and for the hurt to the feelings, and for mental suffering and fright caused by [the] assault.” Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328 (1915). Moreover:

Physical pain, mental suffering, or mental anguish, or all three, may be inferred by the jury to exist to some extent from proof of fright caused by a sudden, unprovocated, unjustifiable, assault with a pistol, accompanied with insulting language.

John R. Thompson & Co. v. Vildibill, 211 Ala. 199, 100 So. 139 (1924). Punitive damages may be awarded for an assault, however, only upon proof that it was committed wrongfully and was accompanied by “insult or other circumstances of aggravation.” Id.

The record contains sufficient evidence upon which the jury could have concluded that Harrison intentionally and unlawfully threatened to touch Mitchell in an angry manner under such circumstances as to lead Mitchell to believe that Harrison not only possessed an immediate ability to carry out his threat but that he would soon do so.

When Harrison pointed the loaded shotgun at Mitchell and said, “You sorry son-of-a-bitch, I’ll kill you right now,” Mitchell said he got excited and really did not remember too much about what Harrison said after the above statement. Mitchell also said, “[A]ll I could see then was the gun.” He said, “I had gotten pretty nervous.”

Based on this evidence we believe the jury could have concluded that Mitchell was experiencing mental suffering, mental anguish, and fright as a result of Harrison’s acts and threats and thus was authorized to award compensatory damages.

Although the jury did not indicate that it was awarding plaintiff punitive damages, we believe such an award would be proper in the instant case because the assault was accompanied by insulting language. See John R. Thompson & Co. v. Vildibill, supra.

Harrison also argues that Mitchell could have retreated and avoided the assault. We do not believe that Mitchell was under a duty to retreat from a place where he had a legal right to be, i. e. a public roadway. See also W. Prosser, Handbook of the Law of Torts § 10 (4th ed. 1971). (“[T]he defendant is not free to compel the plaintiff to buy his safety by compliance with a condition which there is no legal right to impose.”)

Harrison’s next contention is that the jury award is excessive mainly because of the repeated efforts of plaintiff to present to the jury illegal and highly prejudicial matters that had no relation to the assault charge. We would note that the bulk of the matters that defendant has reference to were questions to which objections were made and sustained and in several instances the trial court advised the jury to disregard them because they had no bearing on the issues before the court. We would also note that the trial court overruled the motion for new trial and, where this is done, the favorable presumption attending the jury’s verdict is strengthened. Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963). We find no prejudicial error here.

Harrison’s contention that the trial court erred in overruling his motion for a mistrial is also without merit.

[A] trial judge is vested with a wide discretion in determining whether or not incidents which occur during the course of a trial affect the rights of either party to have a fair trial, and his action may not be reviewed unless it clearly appears that his discretion has been abused.

Boudrow v. H & R Construction Co., 284 Ala. 60, 222 So.2d 154 (1969).

We have carefully examined the entire record in this case, including the many objections to the introduction of evidence and the rulings thereon by the trial court, and we are not persuaded that it clearly abused its discretion in denying the motion for a mistrial.

We now take up Mitchell’s cross-appeal from the trial court’s order granting a directed verdict to the slander of title count in his complaint.

At the close of plaintiff’s case, the court granted defendant’s motion for a directed verdict as to the slander of title count and made this statement:

“I believe . . . the proof has failed to establish every essential element [of the slander of title count] and I grant the motion.”

In Pettway v. Pepsi Cola Bottling Co., Ala., 337 So.2d 757 (1976), the Alabama Supreme Court said:

It is axiomatic that a civil case must go to the jury if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint, and when a reasonable inference may be drawn which is adverse to the moving party, the motion is properly refused.

To recover for slander of title to realty a plaintiff must establish: (1) his ownership of the property slandered; (2) publication by the defendant of a false statement concerning his title; (3) malice by the defendant in publishing his statement; (4) publication of the statement to someone other than the plaintiff; (5) publication of the statement by the defendant in disparagement of plaintiff’s property or his title thereto; and (6) special damages proximately caused by the publication of the statement. Womack v. McDonald, 219 Ala. 75, 121 So. 57 (1929). The defendant’s malice may be established by proof that he intentionally disparaged plaintiff’s title to the property slandered or recklessly disparaged same without information sufficient to support a bona fide belief that he, and not the plaintiff, had paramount title to the property. See Proctor v. Gissendaner, 579 F.2d 876 (5th Cir. 1978). Special damages may be demonstrated by proof that defendant’s disparagement of plaintiff’s title to the slandered realty “interrupted, or injuriously affected, some dealing of the plaintiff with his property.” Ebersole v. Fields, 181 Ala. 421, 62 So. 73 (1913).

Taking the elements of a slander of title action in the order that we have listed them above, the evidence shows that Mitchell had a warranty deed to four acres of land abutting Harrison Road across from defendant Harrison’s property and that this property was shown to the Harrises, who were prospective purchasers, by the real estate agent. The Harrises went to the site of the property at a later date and the husband, in the company of two other people, walked over the property that they had been told was the four acres in question. During this visit to the property, Harrison came out of his house and approached the Harrises. Harrison told the Harrises that Mitchell did not own the property in question because he (Harrison) was the owner of it and the property was not for sale. Harrison told Mrs. Harris that Mitchell would lie and cheat and that he could make up a deed. Harrison further stated that Mitchell did not own the land, that he cheated some people out of it. He said that Mitchell would say and do anything to get the money for the land.

The Harrises stated that they were told by the real estate agent that a survey needed to be made to establish the exact boundaries of the property. Harrison was requested to cooperate in having a survey made and he refused. He said no survey was going to be made because the property was his and he was not going to let anyone come on the property. To back up his statement that no one would go on the property to survey, Harrison pointed a loaded shotgun at Mitchell and told him that he (Harrison) would kill him.

After this encounter with Mitchell and the failure to get a survey made, the Har-rises asked to be released from their contract to buy the land. They were released and their earnest money in the amount of $500 was returned to them.

We conclude that the record contains at least a scintilla of evidence in support of each and every element of the slander of title count in the complaint; consequently, we hold that the trial court erred in directing a verdict to this count of the complaint.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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


author: BRADLEY, Judge. HOLMES, Judge

text:
    THOMPSON AND COMPANY CONTRACTORS v. Robert COLE.
    Civ. 2401.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1980.

      Dennis G. Riley of Camp & Riley, Huntsville, for appellant.
    W. D. Scruggs, Jr. of Scruggs, Rains & Wilson, Port Payne, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The record reveals the following pertinent facts: Robert Cole was employed by Thompson and Company Contractors who had contracted with People’s Telephone Company to install underground telephone cable in Cherokee County, Alabama. At the time of his injury, Cole’s job was to install telephone repeaters. While there is contrary testimony, Cole testified that he hurt his back while unloading a repeater from his truck.

Cole went to the emergency room of Cherokee County Hospital that same day where he received a shot. On Sunday morning at 5:30 Cole returned to the hospital where he was admitted, received medication, and was put in traction by Dr. Eugene Bradley.

Cole’s employer, Billy Thompson, received information on Tuesday or Wednesday of the next week that Cole was in the hospital; however, it is not clear whether Thompson knew the reason for Cole’s hospitalization. At any rate, Thompson sent his crew supervisor, Harold Norris, to the hospital to give Cole his paycheck. Cole testified he told Norris at that time that he had been injured on the job and to get him some insurance papers. Norris denies the statement was made.

Cole testified that he had no telephone in his room and that he was unable to walk without the aid of a nurse or an orderly. The evidence showed that Cole requested the hospital administrator to contact People’s Telephone Company about his injury so they would relay this to Billy Thompson, his employer. While he was in the hospital, Cole managed to contact his attorney to assist in filing his insurance papers.

Thompson was contacted by Cole’s attorney, Mr. George Hecht, concerning the injury five or six weeks after the injury. Thompson informed Mr. Hecht to send all employee accident reports to Thompson’s insurer. This was done.

On May 14, 1979 Cole filed a complaint seeking workmen’s compensation benefits. Thompson denied all material allegations of the complaint. The case was tried on March 10, 1980 and the court entered an order in favor of Cole. Thompson filed a motion for new trial, or in the alternative, to amend the judgment. On May 21, 1980 the court made a “Finding of Fact and Ruling on Defendant’s Motion for New Trial.”

This “Finding of Fact and Ruling on Defendant’s Motion for New Trial” stated that Cole was injured while in the employment of Thompson and within the line and scope of his job, that the injury occurred on October 27, 1978 when Cole injured his back while handling a fifty pound telephone repeater and that Cole was hospitalized as a result of this injury on October 29, 1978. The court further found that no written notice of the injury was formally given to Thompson within five days of the injury, but the court found that this failure was excused and was a reasonable failure based on the physical incapacity and hospitalization of Cole. Furthermore, written notice of the injury was given by Cole through his attorney to Thompson, his employer, within ninety days of the injury. The court further found that based on the testimony of Dr. Eugene Bradley, M.D., Cole had suffered a permanent total disability as a direct result of the injury incurred during the course of his employment with Thompson and Company Contractors. The court ordered that Cole’s hospital, doctor and drug bills be paid, that he was to receive $128.00 per week for the rest of “his natural life;” and that he was to receive $10,240.00 (i. e., eighty weeks of disability payments of $128.00) as an immediate judgment.

The first issue presented for our consideration is whether Thompson was given notice of the accident as required by § 25-5-78, Code of Alabama 1975. That section provides:

Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article and article 2 of this chapter, unless it can be shown that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, fraud or deceit, or equal good reason, but no compensation shall be payable unless such written notice is given within 90 days after the occurrence of the accident or, where death results, within 90 days after the death. [Emphasis supplied.]

The trial court held that the five day written notice requirement was excused and the failure to advise his employer was reasonable based on Cole’s physical incapacity and hospitalization. The trial court also found that Cole had given his employer written notice of the injury within ninety days thereafter.

In support of this holding there is evidence that Cole had a painful back injury, that he was oftentimes in traction, that there was no telephone in his room, and that he was directed to seek help to move around. Furthermore the evidence shows that Cole sought the help of the hospital administrator to get word of his hospitalization to his employer and later engaged a lawyer to inform his employer of his injury and to file the necessary insurance papers. Written notice of the job-related injury was given to the employer by the attorney within ninety days of the injury.

Based on this evidence we conclude that the provisions of § 25-5-78 have been complied with and the trial court properly so held.

Thompson says next that the trial court committed reversible error when it failed to apply the provisions of § 25-5-57(a)(4)e and f, and § 25-5-58, Code of Alabama 1975 to Cole’s preexisting injury or disability.

Thompson specifically argues that the trial court failed to respond to the issue raised at trial concerning the effect of the first back injury suffered by Cole on the compensation due him for the back injury which is the subject of the present case.

The trial court found as a fact that Cole had been permanently and totally disabled as a “direct result” of the injury incurred while employed by Thompson.

Section 25 — 5—57(a)(4), in subparts e and f, Code of Alabama 1975, provides:

e. Second Permanent Injuries Generally. — If an employee has a permanent disability or has previously sustained another injury than that in which he received a subsequent permanent injury by accident, such as is specified in the provisions of this section defining permanent injury, he shall be entitled to compensation only for the degree of injury that would have resulted from the latter accident if the earlier disability or injury had not existed.
f. Second Permanent Injury Resulting in Permanent Total Disability Where First Injury Not in Same Employment.— If an employee receives a permanent injury as specified in this section after having sustained another permanent injury other than in the same employment, and if the combined effect of the previous and subsequent injury results in permanent total disability, compensation shall be payable for permanent total disability.

Section 25-5-58, Code of Alabama 1975, provides:

If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.

The key words in these two Code sections are “disability” and “infirmity.” These terms refer to a condition which affects the ability to work as a normal man at the time of and prior to the accident. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948).

The evidence in this case is to the effect that Dr. Bradley considered the direct cause of Cole’s back injury of October 27, 1978 to be the lifting of the telephone repeater. Furthermore, Thompson stated that Cole did the work he was assigned to do and did not appear to be disabled, and that he had no knowledge of Cole’s prior back problems. The sum and substance of this evidence would support a finding that Cole was able to do the work assigned to him by his employer and that the first injury was no longer a factor to be considered in deciding the compensation to be paid for the injury which is the subject of the present litigation. Thompson says, however, that the trial court made no finding of fact to this effect.

The trial court in workmen’s compensation cases is required to make findings of fact and conclusions of law, and these findings should encompass each and every issue presented to and litigated by the trial court; where this is not done, the judgment should be reversed. Harbin v. United States Steel Corp., Ala.Civ.App., 356 So.2d 179 (1978). But when the trial court’s finding is meager or omissive, this court will look to the evidence to see if the judgment can be upheld. Pinkney v. James B. Clow & Sons, Inc., 277 Ala. 648, 173 So.2d 811 (1965).

Although the trial court did not specifically find that Cole had fully recovered from his first back injury and therefore that injury was not a factor to be considered in the present case, the evidence would support such a finding. Thus, we conclude that such finding is sufficient to meet the “meager and omissive” test.

As to appellant’s contention that § 25-5-57(a)(4)f should be given effect by the trial court in a specific finding of fact, we hold that the rationale applicable to subsection (a)(4)e is equally applicable to subsection (a)(4)!

Appellant says next that the trial court failed to find as a fact that Cole was not capable of being retrained for gainful employment and thus it committed reversible error.

Section 25~5-57(a)(4)d requires that an employee must suffer from an injury that totally incapacitates him from working and being retrained for gainful employment in order to be classified as totally and permanently disabled.

In the instant case the trial court concluded that Cole was totally and permanently disabled by an injury suffered while employed by Thompson. Although the trial court did not specifically find that Cole could not be retrained for gainful employment, we hold that implicit in its conclusion that Cole was permanently and totally disabled is the finding that he could not be so retrained. This finding of fact, as with all other findings of fact made by the trial court, must, however, be supported by some evidence; otherwise the judgment cannot stand. Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955).

Although the case at bar is devoid of evidence that Cole could not be retrained for gainful employment, there is testimony by the employee’s doctor that Cole possibly could operate an elevator or some similar type job not requiring a lot of moving around. Such testimony certainly suggests the possibility that Cole could become gainfully employed in some type of work. Such evidence reinforces the conclusion that the proof fails to support a finding that Cole was incapacitated from being retrained for gainful employment. Therefore, the failure of the implicit finding that Cole could not be retrained for gainful employment to be supported in the evidence requires a reversal of the judgment.

Lastly, appellant says that the trial court awarded compensation to Cole “for and during his natural lifetime,” which award is contrary to the provisions of § 25-5-57(a)(4)a, Code of Alabama 1975.

Section 25-5-57(a)(4)a provides that compensation for a permanent and total disability is to be paid “during such permanent total disability.”

As clearly provided by the Code section, the period of compensation for permanent total disability lasts only so long as the disability continues. Should the disability cease to be other than total at some future time, the compensation for permanent total disability could be terminated. § 25-5-57(a)(4)b, Code of Alabama 1975. Thus, the trial court’s award is an incorrect application of the statute.

For the errors above noted, the judgment of the trial court is reversed and the cause remanded so that evidence may be taken as to whether Cole can be retrained for gainful employment and for the trial court to correct that aspect of the judgment relating to the period during which benefits can be paid for permanent and total disability.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in part and dissents in part.

HOLMES, Judge

(dissenting in part).

I concur in the majority opinion except that portion of the opinion relating to “re-trainability.” I respectfully dissent from the majority’s conclusion that there is no evidence to support a finding that thé employee “was incapacitated from being retrained for gainful employment” and therefore reversal is required.

The Code of Alabama of 1975, § 25-5-57(a)(4)d is as follows:

The total and permanent loss of the sight of both eyes or the loss of both arms at the shoulder or any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment, shall constitute permanent total disability and shall constitute the sole bases on which an award of permanent total disability may be based; provided, that any employee whose disability results from such injury or impairment and who shall have refused to undergo physical or vocational rehabilitation shall not be deemed permanently and totally disabled. (Emphasis supplied.)

As I view the record in the instant appeal, there was absolutely no evidence presented by either party concerning the “retraining,” etc., of the employee. Additionally, no issue was presented to the trial court concerning retrainability.

As the majority states, there is evidence to support the trial court’s finding that the employee was totally and permanently disabled. Furthermore, the majority states that implicit in the finding that the employee was permanently and totally disabled is the finding that the employee could not be retrained.

I agree with the majority regarding these aspects. Where I “part company” with my learned and distinguished colleagues is when they go further and conclude there was no evidence to support the implicit finding of “no retrainability.” This conclusion is, in the instant appeal, inconsistent with the “implicit finding.”

In this instance, the same evidence that supports the finding of permanent total disability supports the implicit finding that the employee is not retrainable.

To reverse in this instance, is, to me, to tell the trial courts of this state that even though there is no issue presented or evidence elicited regarding retrainability, and even though there is evidence to support the finding of permanent total disability, the burden is on the employee to negate the possibility of retrainability. Furthermore, the majority opinion stands for the proposition that if the employee under these circumstances does not present such evidence to meet this burden, the appellate courts will reverse.

To put the above interpretation on the pertinent statute is an undue and unfair burden on the employee and is not mandated by the statute.

Needless to say, I would not reverse the trial court on this aspect of the appeal.

      . The evidence alluded to in the majority’s opinion concerning the operation of an elevator, was, to me, clearly not presented in any issue of retrainability. Furthermore, it is not addressed to “gainful employment” as contemplated by the statute.


author: HOLMES, Judge.

text:
    R. Michael TINNIN v. Nancy Lee TINNIN.
    Civ. 2406.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1980.

      Ralph Loveless of Loveless & Banks, Mobile, for appellant.
    Robert G. Kendall of Johnston, Johnston & Kendall, Mobile, for appellee.
   HOLMES, Judge.

This is an appeal from the denial of a Rule 59(e), ARCP, motion to vacate a judgment of garnishment.

The defendant, following the entry of a judgment of garnishment against his employer, moved to vacate the judgment on the grounds that he had not received notice of the issuance of the writ of garnishment and that he had not received notice of the filing of the garnishee’s answer. This motion was denied and the defendant appeals.

The dispositive issue is whether the learned trial judge abused his discretion in denying the Rule 59(e) motion. We are reluctantly compelled to find such abuse and reverse.

The record reveals the following facts:

The plaintiff and defendant were divorced by the Circuit Court of Mobile County in January, 1979.

The defendant is an apparent employee of the garnishee, C. H. Masland & Sons.

In September, 1979, the plaintiff filed an affidavit for garnishment naming C. H. Masland & Sons as garnishee. The plaintiff claimed the defendant was in arrears in the payment of alimony, child support, and attorney’s fees. A writ of garnishment was issued and notice of the issuance of this writ was sent by first class mail to the defendant’s last known address.

An answer to the writ of garnishment was duly filed by the garnishee. There is nothing in the record to indicate that defendant was given notice of the filing of the answer of the garnishee, nor is it so contended by able and distinguished counsel for plaintiff.

On March 12, 1980, the trial court found the defendant to be in arrears in the payment of alimony, child support, and attorney’s fees and entered a judgment of garnishment against the garnishee in the amount of the arrearage. On April 3, 1980, the defendant filed the aforementioned Rule 59(e) motion. This motion was denied on May 19, 1980. Hence, this appeal.

With respect to the defendant’s contention that he did not receive notice of the filing of the garnishee’s answer, we find § 6-6-450, Code of Ala.1976, to be controlling.

Code section 6-6-450 in pertinent part provides:

The garnishee must answer under oath according to the terms of the garnishment; and, upon filing, the clerk or register shall give the plaintiff and defendant notice ....

As indicated above, there is nothing in the record to show that the defendant was given notice of the filing of the garnishee’s answer. Code section 6-6-450 clearly requires that the defendant be given such notice. We, therefore, find that the notice provisions of § 6-6-450 have not been followed.

The scope of review of an order denying a Rule 59(e) motion is whether there has been a manifest abuse of discretion. Sanders v. Sanders, Ala.Civ.App., 342 So.2d 380 (1977).

In view of the lack of notice of the filing of the garnishee’s answer, as mandated by § 6-6-450, and considering the timeliness of the defendant’s motion, we find the trial court abused its discretion in denying the defendant’s Rule 59(e) motion to vacate the judgment.

In this instance, where the record reveals a statutory “notice” requirement has not been complied with, it is the duty of the trial judge to grant a motion to vacate the judgment. See, Diaz v. Chapman, Ala., 373 So.2d 339 (1979).

The above being dispositive, it is unnecessary to consider the other issues presented by the defendant. Specifically, we determine that it is not necessary to decide whether or not service by first class mail of the notice of the issuance of the writ of garnishment is sufficient. In fact, we specifically do not decide that question.

The plaintiff’s request for an award of attorney’s fees for representation on this appeal is denied.

The case is due to be reversed and is hereby reversed.

REVERSED AND REMANDED.

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