text:
    Denise JONES v. PIZZA BOY, OXFORD, INC., a corporation. Johnny L. JONES v. PIZZA BOY, OXFORD, INC., a corporation.
    79-313, 79-314.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Betty C. Love of Love, Love & Lawrence, Talladega and Harold G. Quattlebaum, An-niston, for appellants.
    J. M. Sides of Lybrand, Sides, Hamner, Oglesby & Held, Anniston, for appellee.
   PER CURIAM.

Denise Jones, and her husband, Johnny L. Jones, filed suit against Pizza Boy, Inc., claiming damages for personal injuries allegedly received by the plaintiff when a piece of ceiling tile fell on her while she was a customer in the restaurant. The case was tried to a jury, which returned a verdict in favor of the defendant. From a judgment entered thereon, the plaintiff appeals.

The plaintiff contends that the trial court committed reversible error in allowing into evidence over her objection a piece of ceiling tile, which was allegedly not the exact piece of tile that struck the plaintiff. The record indicates that Mr. Harold Griffin, the district manager of the Pizza Boy Restaurant, who identified the tile introduced by the defense, testified that it was exactly like the tile that would have fallen on the plaintiff, and he further stated that the ceiling of the entire store was covered with tile of the exact type which was introduced. This witness was never asked whether or not the piece of tile which was introduced was the exact piece of tile that struck Mrs. Jones. A Mrs. Shirley Hudgins, an employee of the restaurant at the time of the accident, testified that she picked up the tile that fell from the ceiling, and that it was exactly like the piece of tile introduced into evidence.

We see no error in the trial court’s allowing this evidence. We are cited to an opinion by the Court of Appeals, Jasper Coca Cola Bottling Co. v. Breed, 40 Ala.App. 449, 115 So.2d 126 (1959), wherein that court stated:

“ ‘The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evi-. dence when duly identified and shown to be in substantially the same condition as at the time of the occurrence.’ ” 40 Ala.App. 449 at 452, 115 So.2d 126 at 129.

See C. Gamble, McElroy’s Alabama Evidence § 212.03 (3d Ed. 1977).

In this case, the witnesses testified unequivocally that the piece of tile which fell from the ceiling onto the plaintiff was identical to the piece of tile which was introduced into evidence. For aught that appears from the record, the piece of tile introduced might have been the identical piece which fell. It is uncontradicted that it was the same type of tile exactly.

It is next argued that the trial court erred in not allowing plaintiffs’ counsel to cross-examine a Dr. Kitele concerning a pending medical malpractice suit against him in which he was represented by the attorney representing the defendant in this case. The record shows that Dr. Kitele was the plaintiff’s physician, and he treated her after the incident, the basis of this suit. The plaintiff’s counsel asked Dr. Kitele whether the defense counsel represented him in a suit against him, and if that litigation was still pending. Dr. Kitele answered “yes” to this question. When plaintiff’s counsel asked him the nature of the lawsuit pending against him in which he was represented by the defendant’s counsel, objection was sustained. In other words, the fact that the defense counsel was representing the physician in a pending lawsuit was not objected to, and that evidence was allowed to reach the jury. Thereafter, the plaintiff’s counsel did not question the physician as to whether or not the fact that he was represented by the defendant’s counsel affected his opinion in any way with respect to the injuries allegedly suffered by the plaintiff.

We agree with the plaintiff that great latitude should be allowed on cross-examination, and witnesses are subject to impeachment on the basis of bias, and any relationship which tends to show bias in favor of one side or the other is the proper subject of cross-examination. However, the record before us does not reflect that the plaintiff was cut off in any way in pursuing this line of questioning. To the contrary, the record shows that, having established that the physician was represented by the defendant’s lawyer in a pending lawsuit, the plaintiff stopped short. She cannot now complain that she was prejudiced in any way in not being allowed to show the nature of the lawsuit in which this witness was represented by the defendant’s counsel. C. Gamble, McElroy’s Alabama Evidence § 140.1, et seq. (3d Ed. 1977).

The last argument made is that the verdict is contrary to the weight of the evidence. We have read the evidence introduced below, and we are clear to the conclusion that the jury had evidence before it from which it could have concluded, as apparently it did, that while the plaintiff was struck by a piece of tile while on the premises of the defendant, she did not suffer any injury. One physician testified that it was his opinion that she suffered no injury, and another testified that her condition was normal upon examination immediately following the incident.

It seems to us that this is simply a case in which the jury believed the defendant’s version of the case and rejected that of the plaintiff. There being evidence to support that conclusion, the jury’s verdict must be sustained.

The judgment appealed from is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    Clara A. CALHOUN, etc. v. Bailey SMITH et al.
    79-319.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Rehearing Denied Sept. 19, 1980.

      T. Dudley Perry, Tuskegee, for appellant.
    C. LeNoir Thompson, Bay Minette, for appellees.
   FAULKNER, Justice.

This is an appeal from a judgment of the Circuit Court of Baldwin County, holding that the appellees acquired by adverse possession real property made the basis of this action. We reverse.

Clara A. Calhoun, as the executrix and trustee under the will of Hamp Smith, sought a declaratory judgment to construe his will to permit her to sell an undivided % interest in real property located in Baldwin County allegedly owned in fee simple by Hamp Smith. It is undisputed that the remaining Vs interest is owned by Bailey Smith, who acquired the property from his father.

The appellees, Hamp Smith’s relatives by blood or marriage, filed an answer and a counterclaim alleging that the property could not be sold as requested because they had acquired all of the property described in the complaint by adverse possession except for 2.45 acres of land upon which Hamp Smith resided prior to his death. On' June 20, 1979, a default judgment was entered against appellees John Hamilton Smith, Metterine Smith, Ruby Lee Valree, and Mary Bernice Collins.

In his last will and testament, Hamp Smith, deceased, nominated his daughter, Clara A. Calhoun, as the executrix of his will. He directed that if he should not outlive his wife-Clara’s mother-then Clara shall be responsible for the care and maintenance of his wife. Hamp’s will further provided that, if necessary, Clara Calhoun shall have the right to dispose of any and all of his real or personal property in order to care for his wife. The trial judge construed this part of Hamp’s will as creating a trust for the benefit of the wife and designating his daughter as trustee. Hamp Smith predeceased his wife. Under the terms of the will, and because of the need for funds with which to care for her invalid mother, Clara Calhoun sought the declaratory judgment.

In view of the default judgment entered against the named appellees, the only real property at issue is that parcel claimed by Mary Maude Smith and her children and that parcel claimed by Rozena Smith and her children. It is uncontroverted that both women, with their families, have lived on the parcels in excess of twenty years.

In 1972, at the direction of Hamp Smith, the entire tract of land was surveyed into nine separate parcels. Each parcel was designated by the name of a relative who was either living on the parcel at the time, or to whom Hamp Smith allegedly intended to convey the property at some future date. A map of the survey was admitted into evidence which clearly shows these designations and their acreage. Hamp Smith neither deeded any of his property to any of his relatives during his lifetime, nor did he devise his property to anyone other than to Clara Calhoun as his executrix and trustee.

The trial judge heard the testimony ore tenus and found that Clara A. Calhoun has the power to sell all the real and personal property owned by Hamp Smith at his death and apply all the proceeds from the sale toward the cost of caring for and maintaining Clara Smith, the wife. The trial judge further held that Rozena Smith and her children, Mary Maude Smith and her children, and Ruby Smith are the owners of the land they are claiming by adverse possession, and that the remainder of the property is owned by Hamp Smith, subject to that parcel stipulated as belonging to Bailey Smith. The lower court found that the survey of the property is inadequate and ordered a new survey to establish the boundary lines. The appellant appeals from that part of the trial judge’s order which vests title in the appellees as adverse possessors.

There was testimony at trial indicating that the appellees have been occupying the land with the consent of Hamp Smith, and that they have made certain tax payments to Hamp Smith when he requested them to do so. Evidence also indicates that the appellees thought that they were making these tax payments in lieu of rental payment to Hamp Smith for their occupation of his land. The record reveals that the property is being assessed in the wife’s name, and no evidence was produced showing that the property was ever assessed in the appellees’ names.

The primary issue on appeal is whether the appellees are the owners of the land by adverse possession, or whether Hamp Smith had granted the appellees permission to occupy the land. We hold that there was a consensual arrangement between Hamp Smith and the appellees, and because of this, the land was not adversely possessed.

To obtain land by adverse possession, the claimant must prove “possession of the land; openness, notoriety and exclusiveness of possession; hostility toward everybody else in respect of possession; holding possession under claim of right or claim of color to title; and continuity for statutory period of ten years.” Tanner v. Thompson, 376 So.2d 697, 698 (Ala.1979). These elements must be proven by clear and convincing evidence. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976). It should be noted that the elements necessary to prove ownership under the twenty year prescriptive period are the same as those needed to prove adverse possession under the ten year statutory period; the difference between the two is one of burden of proof. Pendley v. Pendley, 338 So.2d 405, 407 n.2 (Ala.1976); Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965).

It is fundamental to the law of adverse possession that the claimant prove hostile possession of the property for the prescribed period of time. “Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully.” Reynolds v. Rutland, 365 So.2d 656, 658 (Ala.1978). Possession must be without recognition of the owner’s rights. Pendley v. Pendley, 338 So.2d 405 (Ala.1976). Inasmuch as hostility is a requirement, permissive possession of the property will not sustain the claimant’s burden; it would be a contradiction in terms to so hold.

Appellant contends, and we agree, that the appellees occupied the land with the permission of the true owner, Hamp Smith. At trial two of the appellees admitted, and later conceded in their brief, that they were, living on the land with the consent of Hamp Smith. When this subject was broached, appellee Mary Maude Smith testified:

Q: So, were you living on his property with his consent?
A: Yeah, he told [my husband] that he could put the house there.

Appellee Rozena Smith answered affirmatively to the same question:

Q: Did ya’ll also live on the property with the consent of Mr. Hamp Smith?
A: Yeah.
Q: He gave you permission to live on the property; is that right?
A: Right.

As was stated in Enterprise Lodge No. 352 of the Knights of Pythias v. First Baptist Church (Colored) of Evergreen, 292 Ala. 579, 581, 298 So.2d 17, 19 (1974), “[i]t is well settled that an entry and possession of land under permission of the owner will not ripen into title by adverse possession.” In order to change possession from permissive to adverse, the possessor must make a clear and positive disclaimer or repudiation of the true owner’s title. The possessor must give the true owner actual notice of such disavowal, or he must manifest acts or declarations of adverseness so notoriously that actual notice will be presumed. Stewart v. Childress, 269 Ala. 87, 111 So.2d 8 (1959). There is nothing in the record that reflects, that once permission was granted to occupy the land, the appellees repudiated such permission so as to constitute adverseness to the true owner. As such, the prescribed period of time for adverse possession will not begin to run until notice of the adverse claim, or hostility, has been brought home to the true owner. Stewart.

Appellees cite Pendley v. Pendley, 338 So.2d 405 (Ala.1976), in support of their argument that if a donor-title holder (Hamp Smith) intends to surrender title to putative donees (his relatives), and in the interim the donor permits the donees to use the property, they can adversely possess as against the donor. Although there is testimony in the record intimating that Hamp Smith had intended to make a gift of his property to the appellees in proportion to that designated on the map, we find that there was a condition precedent to such a gift. The testimony shows that the gift would have occurred, if at all, only if Hamp Smith had outlived his wife; this condition precedent was not performed. Therefore, we find Pendley inapposite to defeat the appellant’s argument that there was not hostile possession.

Further, we find that the appel-lees’ payments to Hamp Smith were made with the expectation that such were for their right to occupy his land, whether they actually constituted rental payments or not. In any event, we are not convinced that these payments were made in satisfaction of their tax indebtedness. Even if such payments were for taxes owed, the payment of taxes alone is not dispositive on the question whether the appellees are holding the land adversely. Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972).

Because we find that the appellees have been holding the property with the permission of the true owner, Hamp Smith, and because such a repudiation of the permissive use has not been clearly manifested to the true owner, or his executrix, we hold that there was not hostile occupancy of the land to vest title in the appellees under adverse possession.

REVERSED AND REMANDED.

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

TORBERT, Chief Justice

(concurring specially).

In Alabama there are two types of adverse possession: statutory adverse possession and adverse possession by prescription. Statutory adverse possession requires actual, exclusive, open, notorious and hostile possession for ten years under claim of right, plus color of title, payment of taxes for ten years, or a title derived by. descent cast or devise from a possessor. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962). Adverse possession by prescription is wholly common law, and requires actual, exclusive, open, notorious and hostile possession for twenty years under a claim of right. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965).

The burden of proof as to the elements of each is the same, the difference between the two types of adverse possession being the added elements and the reduced time of possession required under the statute. See, Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972); Brannan v. Henry, 175 Ala. 454, 57 So. 967 (1912). The failure to correctly distinguish between these two types of adverse possession has in the past led to much confusion, and I do not feel that this confusion should be continued.


author: BEATTY, Justice.

text:
    Cecil Deron YOUNG v. STATE of Alabama.
    79-356.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    C. B. Caine, Jr., Moulton, for appellant.
    Charles A. Graddick, Atty. Gen. and J. T. Sinonetti, Jr., Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

The defendant, Cecil Deron Young, was indicted by the Lawrence County Grand Jury on a charge of murder. Upon a showing that the defendant was sixteen years of age the case was transferred by the Circuit Court of Lawrence County to the district court, juvenile division. Pursuant to Code of Ala.1975, § 12-15-34, that court ordered the defendant re-transferred to the circuit court for trial and disposition as an adult. This transfer order was appealed to the circuit court, and a de novo hearing was held on the question whether the defendant should be transferred to the circuit court. On January 28, 1980 the circuit court ordered that the minor defendant should be certified as an adult and that trial should proceed on the indictment. The defendant appealed this order. We reverse and remand.

The major issue presented is whether the trial court’s order that Young be transferred to stand trial as an adult was in compliance with Code of 1975, § 12-15-34, and with the dictates of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

Kent, supra, is the leading case on juvenile rights. There the Supreme Court stated:

[W]e hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of “full investigation” has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review. 383 U.S. at 561, 86 S.Ct. at 1057.

Code of 1975, § 12-15-34(d), which was enacted after Kent, supra, requires a district court to consider evidence of six specific (and other relevant) factors in determining whether a transfer motion should be granted. Upon a trial de novo in circuit court, those same factors apply in the determination of the question of transfer, and the circuit court order must reflect consideration of those specific factors. Were it otherwise, we could be faced with the anomalous situation in which on the same issue, the propriety of transfer, two courts would apply different standards. Those factors which each court must consider are:

(1) The nature of the present alleged offense;
(2) The extent and nature of the child’s prior delinquency record;
(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
(4) Demeanor;
(5) The extent and nature of the child’s physical and mental maturity; and
(6) The interest of the community and of the child requiring that the child be placed under legal restraint or discipline. [§ 12-15-34(d), Code of 1975.]

In the present case the order of the circuit court does not meet the standards set out in § 12-15-34(d). That order reads in pertinent part:

The Court further finds from the evidence offered in this matter that the charge at present pending against the defendant made the basis of the Grand Jury Indictment numbered CC-79-165, involves the killing of a human being in Lawrence County, Alabama, and that the offense is of a serious nature as categorized by the felony statutes within the State of Alabama.
The Court, after consideration of the evidence offered by the petitioner and the defendant and the evidence offered by the clinical psychologist [who] testified in this case, [is] of the opinion that in the interest of society and the administration of the criminal law and of the defendant in general, that the defendant should be certified to the Circuit Court to stand trial on the indictment at present pending against him and the Court will so Order.

There is thus no statement or finding in the order of the trial court to show that it considered those specific factors in § 12-15-34(d). This Court has previously held that a transfer order containing a mere restatement of the factors set out in the statute is valid. Brown v. State, Ala., 353 So.2d 1384 (1977). Here, however, there is no such recitation. The order appears to be based on the fact that the charge is a serious crime and on the opinion that the transfer would be in the best interest of society and of the defendant.

The nature of the crime and the best interest of the community are but two of the six mandatory factors to be considered in granting a transfer order. For aught that appears the legislature gave no particular significance or additional weight to these two factors. Consideration of each of the six factors must be made in the transfer order.

Moreover, Code of 1975, § 12-15-34(f) specifically provides:

When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion, which shall include a finding of probable cause for believing that the allegations are true and correct.

In the present order there was no statement of probable cause. Absent such a finding, which is clearly required prior to transfer, this transfer is invalid.

Because this cause must be reversed and remanded for the reasons assigned, it is unnecessary to consider other issues raised by the appellant.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    STATE of Alabama v. Carl McLEMORE et al.
    79-357.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      J. G. Speake, Sp. Asst. Atty. Gen., Speake, Speake & Reich, Moulton, for appellant.
    W. H. Rogers, Moulton, for appellees.
   FAULKNER, Justice.

The State of Alabama appeals from a judgment of the circuit court of Lawrence County, entered in a highway condemnation suit. The project called for construction of a public highway through Lawrence County-

The State initiated proceedings in the Probate Court to condemn a portion of two parcels of land belonging to the condemnees lying on either side of the Hillsboro Road. Parcel 1 consisted of 4.74 acres; parcel 2 consisted of 3.68 acres. The portion of land to be condemned in each parcel was .34 and .72 acre respectively (total 1.06 acres). Condemnees’ residence lay in Parcel 2 on the east side of the road.

The commissioners appointed by the Probate Court fixed the compensation at $8,000.00. Both parties filed notice of appeal to the circuit court. A trial by jury was demanded. The trial court entered judgment for condemnees upon the jury verdict, assessing damages against the State in the amount of $20,000.00.

The State petitioned the trial court for a new trial or alternative relief, viz.: a remit-titur. Upon denial of this relief, the State filed its notice of appeal. For the reasons stated below, we affirm.

The State contends that the trial court erred in admitting over strenuous objection a document entitled “Breakdown of Just Compensation.” The State argues further that since the verdict was based partially on consideration of this illegal evidence, the verdict is improper and excessive. Thus, the State says, the trial court erred in denying its motion for a new trial or alternative relief.

It is well settled that offers of compromise made during the course of negotiations are inadmissible. East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969); Hughes v. Daniel, 187 Ala. 41, 65 So. 518 (1914); McElroy’s Alabama Evidence, § 188.01 (3d Ed. Gamble 1977). But, a party’s express admission, even though made in the course of negotiations for compromise, is, however, admissible against him. Hughes v. Daniel, supra. Here, we opine that the document was an admission against interest.

In a condemnation proceeding where only a part of the tract is taken, the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part of the tract remaining after the taking. State v. Moore, 382 So.2d 543 (Ala.1980). Furthermore, if the amount of damages fixed by the jury falls between the high and low valuation testimony, the verdict will not be deemed excessive. State v. Long, 344 So.2d 754 (Ala.1977).

In the instant case, the jury had several assignments of value before it. The State’s valuation testimony was that the con-demnees sufféred a loss of $3,650.00. The condemnee testified that he was damaged in the amount of $44,000.00. Another witness testified that the loss was between $33,000.00 and $38,000.00.

The fourth figure before the jury was that in the “Breakdown of Just Compensation ”-$27,902.00. The State insists that the admission of this figure improperly influenced the jury’s verdict and resulted in an award which was improper and excessive. We do not agree.

The State’s witness testified, and the con-demnees admitted that this offer was withdrawn. Robert Pyron, an employee of the State of Alabama Highway Department assigned to this highway project, testified that the State’s original computation of damages suffered by the condemnees was based on erroneous information. When the project involving the highway was begun, there had been an incorrect plotting on the highway map. Through this error the con-demnees’ residence appeared to be seven feet from the right-of-way line rather than actually eighty-five feet. When the error was discovered, the map was revised, and the original offer to the condemnees was withdrawn. With this information before the jury, we are not convinced that the verdict was improper and that the State was prejudiced by the admission of the original offer. It is notable that the verdict was well below the amount of damages cited in the State’s “Breakdown of Just Compensation.”

The State argues that this Court should avoid inflexible adherence to the rules favoring jury verdicts in cases such as this, and strengthening the presumption in favor of the verdict when the trial court refused a motion for new trial. State v. Colley Corp., 295 Ala. 204, 326 So.2d 120 (1976); State v. Rigas, 282 Ala. 541, 213 So.2d 386 (1968). Having found that the verdict was based on competent evidence, however, we do not deem it appropriate to deviate from these standards in the instant case. Thus, we cannot say that the trial court erred in overruling the State’s motion for a new trial or alternative relief.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    The CITY OF GADSDEN, a Municipal Corp. v. Thelma ENTREKIN.
    79-382.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      Roger W. Kirby, Gadsden, for appellant. James F. Hinton, Gadsden, for appellee.
   MADDOX, Justice.

This is an appeal from a judgment of the Circuit Court of Etowah County granting appellee Thelma Entrekin’s request for a permanent injunction enjoining appellant City of Gadsden from interfering with the placement of a modular home upon her property. For the reasons hereinafter set forth, we reverse and remand.

The appellee owned a vacant lot located in an R-l, single family residential zone in the City of Gadsden, and wanted to place a mobile home on the property as a place of residence. In attempting to obtain a permit authorizing her to locate a mobile structure on the property, appellee was informed that a permit could not be given unless a special exception was first obtained from the Board of Adjustment of the City of Gadsden pursuant to Gadsden City Code, Ordinance No. 1988. That ordinance provides in pertinent part that:

Trailers, mobile homes, mobile home courts and trailer parks shall not be located in any districts specified in this ordinance unless application is first made to the Board of Adjustment, and upon spe-ciál exception issued by said Board in accordance with this ordinance, after due notice and public hearing before such Board.

The ordinance lists certain prerequisites which must be met before a special exception for a mobile home can be given. A mobile home is defined under the code as follows:

Trailer, automobile trailer, trailer coach or mobile home means any vehicle or structure so designed and constructed in such manner as will permit occupancy thereof as sleeping quarters for one or more persons, or the conduct of any business or profession (or use as a selling or advertising device) and so designed that it is or may be mounted on wheels and used as a conveyance on highways or city streets, propelled or drawn by its own or other motive power, except a device used exclusively upon stationary rails or tracks, whether or not the same is actually mounted on wheels or affixed to the realty in any manner.

Pursuant to these provisions, the appellee filed her petition for a special exception on September 7, 1979. The Board of Adjustment denied that petition on September 27, 1979. No appeal from this ruling was ever taken.

On October 1, 1979, the appellee entered into an agreement with Coosa Valley Mobile Homes whereby she agreed to purchase a “modular” home, a structure quite different from the mobile home originally considered by the Board of Adjustment. The record establishes that a “modular” home consists of two prefabricated sections which are joined together on the location of the proposed residence.' The structure is pulled to the installation site on wheels and axles attached to the steel beam construction under the floor. It is moved by a tow truck with a tongue attached to the steel beams. After reaching the site, the wheels, axles and tongue are removed and sold back to the manufacturer. Thereafter, the home is placed upon a permanent foundation.

In contemplating the proposed placement of the modular home on the appellee’s property, the appellee’s attorney approached a Mr. Cary Cooper, Building Official for the City of Gadsden, and asked him whether he would issue a building permit for the construction of the home. Mr. Cooper refused. As a result, Mrs. Entrekin filed suit to enjoin the City’s interference with the location of the structure on her property. A trial was held, and the jury found that a “modular” home was not a mobile home and the trial court duly entered judgment in the appellee’s favor.

The sole issue raised on this appeal is whether the trial court had jurisdiction to entertain the appellee’s action and grant the permanent injunction when it is clear from the record that the appellee failed to exhaust available administrative remedies. We hold that it did not.

Code 1975, § 11-52-80, is the enabling section which authorizes corporate municipalities to provide for the appointment of local boards of adjustment. The general purpose of these boards is to administer the zoning ordinances of the city and, where specifically authorized, to make “. special exceptions to the terms of the ordinance in harmony with its general purposes and interests and in accordance with general or specific rules therein contained.” Code 1975, § ll-52-80(a). In delineating the specific powers of the board, § 11-52-80 provides:

(d) The board of adjustment shall have the following powers:
(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto;
(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and
(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.
(e) In exercising the powers mentioned in subsection (d) of this section, such board may, in conformity with the provisions of this article, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and, to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance.

In turn, Code 1975, § 11-52-81 provides that:

Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo.

Thus, a very definite remedial scheme has been established whereby an aggrieved party can contest the application or interpretation of a zoning ordinance on an administrative level before entering a court of law.

Acting upon the enabling provisions of § 11-52-80, the City of Gadsden enacted Ordinance No. 2143 which established the Housing and Building Board of Adjustments and Appeals. The duties of said board are described as follows:

The duties of the Housing and Building Board of Adjustments and Appeals shall be (a) to consider and determine appeals whenever it is claimed that the true intent and meaning of the Standard Housing Code or the Standard Building Code or any of the regulations thereunder have been misconstrued or wrongly interpreted; (b) to permit, in appropriate circumstances, where the application of the requirements of the Standard Housing Code would appear to cause undue hardship on an owner, a reasonable extension of time, provided, however, no such extension shall be granted for more than eight (8) months from the date of such notice; (c) to vary the application of any provision of the Standard Building Code in any particular case when, in its opinion, the enforcement thereof does manifest injustice, and would be contrary to the spirit and purpose of the Code or public interest, or when, in its opinion interpretation of th,e Building Official should be modified or reversed; (d) to vary the application of any provision of the Building Code or modify an order of the Building Officials, a decision of the Board shall specify in what manner such variation or modification is made, the conditions upon which it is made, and the reasons therefor. No appeal should be considered where an appeal case has been previously decided involving the same premises.

With regard to what types of appeals are available, the ordinance provides that:

Whenever the Building Official shall reject or refuse to approve the mode or manner of construction proposed to be followed or material to be used in the erection or alteration of a building or structure, or when it is claimed that the provisions of the Standard Building Code do not apply, or that an equally good or more desirable form of construction can be employed in any specific case, or when it is claimed that the true intent and meaning of the Standard Building Code or any of the regulations thereunder have been misconstrued or wrongly interpreted, the owner of a building or structure or his duly authorized agent, may appeal from the decision of the Building Official to the Housing and Building Board of Adjustments and Appeals. Notice of an appeal of this nature shall be in writing and filed within 90 days after the decision is rendered by the Building Official.

Looking to these provisions, we are convinced that administrative remedies were available to the appellee whereby she could have challenged the judgment of the Building Official in denying her request for a building permit. The question remains, however: Was the appellee required to exhaust them?

The application of the exhaustion doctrine to zoning matters is a principle well recognized in the law. As noted by Eugene McQuillin in his treatise on municipal corporations:

It is a general rule that a party seeking relief under the zoning laws must first pursue and exhaust the administrative remedy available to him before bringing an action or proceeding for judicial relief, unless the administrative remedy is inadequate or nonexistent. The rule is based upon the common necessity for orderly procedure, and it has been said not to be an absolute rule of law, but one of policy, convenience and discretion, particularly since the prerogative powers of the court are protected from change by zoning as well as by other legislation. The view has also been taken that the very purpose of the rule is to give to the local authorities an opportunity to correct any error in the zoning classification, or to remedy any unreasonable hardships imposed thereby before the aggrieved party enters into litigation. Furthermore, although there is contrary authority, the remedy provided by the zoning laws may be exclusive. This general principle has, of course, no application to cases in which relief is sought on the theory that the zoning laws are completely invalid, void, or unconstitutional, as more fully discussed below.
Injunctive or other equitable relief may be denied a party if the zoning law provides an adequate remedy, as where it provides a remedy by complaint, application or petition to a board of adjustment or the like, and an appeal from and review of its decision by the courts. Provision by law for a remedy by complaint to a municipal board of appeals, whose action is reviewable by the courts, has been held to preclude injunctive relief against a classification of property. Injunctive relief may be granted even in the absence of resort to administrative remedies, however, where the enforcement or threatened enforcement of a zoning ordinance by criminal process against the property owner constitutes irreparable injury.

McQuillin, Municipal Corporations § 25.283 (2d ed. 1976). Likewise, in Yokley, Zoning Law and Practice, § 24-11 (4th ed. 1979), it is stated that:

Many decisions attest the rule that the exhaustion of administrative remedies is a prerequisite to court action in zoning matters.
Where an act affords the right of appeal from an order of an administrative character by a building inspector, one who is dissatisfied with an order of such official revoking a building permit should pursue the statutory method of appeal and not seek the injunctive processes of the courts.

See also Metzenbaum, Law of Zoning, Yol. I, Chapter IX-e-(2) (2d ed. 1955); 101A C.J.S. Zoning & Land Planning §§ 280-281 (1979); 82 Am.Jur.2d Zoning and Planning §§ 331-332 (1976); and Annot. 136 A.L.R. 1378.

In addition to these authorities and the cases cited therein, this Court in Watson v. Norris, 283 Ala. 380, 217 So.2d 246 (1969), applied the exhaustion doctrine in a case involving an attack upon a zoning administrator’s denial of a use permit. The plaintiffs in that case sought relief by filing a petition for writ of mandamus ordering the administrator to withdraw his denial. The defendant administrator demurred to the petition, alleging, inter alia, that the petitioners failed to exhaust their administrative remedies. This Court, Justice Harwood writing, held:

[I]t seems to be the doctrine of the heavy preponderance of the decisions, both state and federal, that where a complainant attacks the constitutionality or reasonableness of specific provisions of a zoning ordinance as it applies to a particular property, he must exhaust the available administrative remedies before resorting to court action. For a full analysis of the above doctrine, together with the authorities in support thereof, we refer interested parties to Metzenbaum, Law of Zoning, 2nd Ed., Vol. 1, Chapter IX-e(l) and (2). See also Davis, Administrative Law Text, Chapter 20.
As observed in Metzenbaum, supra, at page 713:
In each state, there are many thousands of buildings and many thousands of parcels of land.
If each plaintiff were permitted to engage the courts with proceedings attacking the constitutionality or the unconstitutional-unreasonableness of each zoning ordinance as it applies to such complainant’s own property, without first seeking relief by the available administrative remedies, would not the courts of every state be clogged with such actions virtually to the exclusion of other matters?
Would there not be so great a flood of such proceedings as to overwhelm the courts?

We are thus led to the inescapable conclusion that one must exhaust his remedies in a zoning matter before entering a court of law. We fully recognize that this rule is not absolute and without exceptions. As noted in 101A C.J.S. Zoning & Land Planning § 281 (1979), these exceptions generally arise where (1) the question raised is one of interpretation of the statute or (2) the action raises questions of law only and not matters requiring administrative findings of fact or an exercise of administrative discretion. In addition, administrative remedies need not be exhausted where doing so would be futile or where the remedies provided are inadequate. Likewise, one need not pursue administrative remedies when irreparable injury is threatened.

None of these possible exceptions exists in the present case. Appellee proceeded to trial alleging that she was wrongfully denied a building permit by the City of Gadsden. That decision was clearly a matter of administrative discretion. If she wished to contest that denial, she should have filed an appeal to the Housing and Building Board of Adjustments and Appeals, allowing that board to hear evidence and reach a factual determination on the issue. If that board reached an adverse decision, she could have then appealed to the Circuit Court of Etowah County pursuant to Code 1975, § 11-52-82. Having failed to exhaust these remedies, she was not entitled to enter a court of law.

Because the appellee failed to exhaust administrative remedies, the Circuit Court of Etowah County lacked jurisdiction to entertain her claim; therefore, the judgment of that court granting appellee’s prayer for a permanent injunction is due to be reversed and remanded.

REVERSED AND REMANDED.

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

JONES, J., concurs in the result.


author: SHORES, Justice.

text:
    KILGORE HARDWARE AND BUILDING SUPPLY, INC. v. Terry MULLINS et al.
    79-370.
    Supreme Court of Alabama.
    Sept. 12, 1980.
    Michael F. Ford of Martin & Ford, Tus-cumbia, for appellant.
    Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellees.
   SHORES, Justice.

This action was commenced by Kilgore Hardware and Building Supply, Inc., to enforce a materialman’s lien. Defendants are Terry Mullins and his wife, the owners of an equity of redemption in the property upon which Kilgore sought its lien, and First Colbert National Bank, the holder of three mortgages on that property. After a trial, the court entered a judgment denying Kilgore’s claim to a lien. The court’s judgment contained the following findings of fact: (1) that Kilgore had actual knowledge of First Colbert's mortgage; (2) that Kil-gore had a general running account with Terry Mullins; (3) that the amount Mullins owed Kilgore for the materials Kilgore supplied was uncertain; and (4) that it was not clear from the evidence when construction of the house began.

Kilgore appealed. We affirm.

Terry Mullins was a building contractor. He and his wife purchased the lot involved in this litigation and received a deed to it on June 5, 1978.

First Colbert National Bank loaned Mullins money secured by three different mortgages on this lot. The first mortgage was dated June 5, 1978, and recorded June 21, 1978, securing a $40,000 loan. The second mortgage was dated June 27, 1978, and recorded July 5, 1978. The third mortgage was dated August 17, 1978, and recorded the same day. The loans secured by the second and third mortgages were not used to finance the construction of Mullins’s home.

At the same time Mullins was building the house involved here, which was to be his home, he was also building other houses and was receiving loans from First Colbert for the construction of these other houses.

Kilgore sells building materials. It supplied materials to Mullins for use in building his personal home, as well as materials used in other construction jobs. Under the arrangement between Mullins and Kilgore, Mullins was to be billed each month’s purchases on the 25th of the month and they were to be paid around the 10th of the following month.

At the time construction was commenced on Mullins’s personal home, he had had a running account with Kilgore for approximately two years and there was a small balance outstanding on this account at the time he had a conversation with Mr. Kil-gore, president of the plaintiff corporation, with respect to materials for the construction of his personal home. At this time, Mullins told Mr. Kilgore that he had a construction loan at First Colbert for his home, and Mr. Kilgore checked with First Colbert about the construction loan and was told that the bank would make a construction loan to Mullins on his personal home.

The question presented is whether the bank’s mortgage is superior to Kilgore's asserted materialman’s lien. The trial court held that the bank’s mortgage was superior to the asserted materialman’s lien. We must agree for a number of reasons. First, under Alabama law, a materialman’s lien does not attach until work is begun. Lily Flagg Bldg. Supply Co. v. Medlin & Co., 285 Ala. 402, 232 So.2d 643 (1970); Kansas City Title Ins. Co. v. Gamble’s, Inc., 283 Ala. 409, 217 So.2d 923 (1969). Thus, the materialman’s claim in such instance is subordinate to a construction mortgage even before he begins work on a job, if the construction money mortgage is recorded prior to the start of the construction.

Any construction necessarily was commenced after the construction mortgage was executed. The question then is whether the lien has priority over this mortgage. We think not. Section 35-11-211, Code of Ala.1975, provides:

§ 35-11-211. Priority of lien.
Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement; and as to liens, mortgages or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject of the prior lien, mortgage or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced by a sale of such buildings or improvement under the provisions of this division and the purchaser may, within a reasonable time thereafter, remove the same.

In this case, there is no doubt that the mortgage was executed prior to the commencement of the work. We are unpersuaded by the appellant’s argument that, although this is so, it should not be given priority because the mortgage was arguably not recorded until after the commencement of the work. We are unpersuaded that the statute uses the word “created” to equate “recorded.” But even if we were tempted to read the act to provide that mortgages “recorded” prior to the commencement of the work shall have priority, we would not do so in this case because the materialman knew that the mortgage existed at the time the materials were delivered.

We think this holding is consistent with this Court’s decision in Empire Home Loans, Inc. v. Bradley Co., 286 Ala. 449, 241 So.2d 317 (1970). “The Priority Problem Between Construction Mortgages and Mechanic’s Liens in Alabama,” 6 Cumb.L.Rev. 243.

In any event, the judgment appealed from is due to be affirmed because Kilgore failed to prove that the work was commenced before the execution of the mortgage, which burden it must discharge to prevail. Polakow v. General Roofing & Supply Co., 242 Ala. 497, 7 So.2d 73 (1942).

AFFIRMED.

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


text:
    Charles J. RUTLAND v. GEORGIA KRAFT COMPANY, INC., a corporation, et al.
    79-174.
    The Supreme Court of Alabama.
    Aug. 29, 1980.

      George Young, Birmingham, for appellant.
    No brief for appellee.
   BEATTY, Justice.

This appeal is from a final judgment establishing the true and correct boundary line between plaintiff’s and defendants’ land. We affirm.

This dispute arose when plaintiff, Mr. Rutland, had a survey made of a quarter-quarter section of land he had recently purchased. The survey revealed that the boundary line previously recognized as the line between the, contiguous tracts of real estate owned by the plaintiff and defendants was not the actual boundary line indicated by their respective deeds of conveyance. Plaintiff filed suit to establish the boundary line as defined in the survey and deeds, and also to stop defendant, Georgia Kraft (lessee of the land in question) from encroaching on the land by cutting timber on it and building a road across it to remove the timber. The trial court, however, found the true and correct boundary line to be the line recognized by the landowners for over forty years.

The single dispositive issue presented by this appeal is whether the survey which undisputedly defined the boundary line according to the governmental subsectional lines should establish the boundary line between the lands of the parties to this cause, or whether there was sufficient possession by the defendants of the property in dispute to ripen into title by adverse possession.

At trial Mr. Walter Coleman, a licensed surveyor whose qualifications were accepted, testified that he surveyed the quarter-quarter section purchased by the plaintiff and that the true line of the quarter-quarter as defined by the government survey and the deeds and the markings which had been considered by the parties as the boundary differed greatly.

While it is true that government subsection lines remain fixed and cannot be relocated by acts or agreements of the parties, it is clear that a boundary line between adjacent landowners may be changed by agreement or by adverse possession. Whiddon v. White, 285 Ala. 109, 229 So.2d 498 (1969).

In Alabama the rule of adverse possession is that “if a coterminous landowner holds actual possession of a disputed strip under claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line.” Wills v. Blackwell, 386 So.2d 427 (1980) quoting Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971). Alabama law also has a restriction on adverse possession of woodlands, such as the property under dispute. In Smith v. Brown, 282 Ala. 528, 535, 213 So.2d 374 (1968), the Court said, quoting Smith v. Cook, 220 Ala. 338, 124 So. 898 (1929):

“If the land is woodland, there must ordinarily ‘be such a continuous and persistent cutting of timber or wood from the tract, as to be evidence of a claim of ownership, and an advertisement to the world that the party. is occupying the entire tract’ (Green v. Marlin, 219 Ala. 27, 121 So. 19, 22, and citations), or some other continuous acts of adverse possession (Montgomery v. Spears, 218 Ala. 160, 117 So. 753).” [Emphasis added.]

The trial judge specifically established the boundary line between the tracts after hearing the evidence ore tenus. The order of the trial court stated, “The Court further finds that the common boundaries between the Plaintiff and the Defendants have been accepted and recognized by their predecessors in title for over forty years and that the correct location of said lines [has] been undisputed until the Plaintiff acquired his land.” Clearly the trial court considered the possession to be adverse and for the requisite statutory period. The record reflects reliable evidence to support the trial court’s finding of adverse possession and of the location of the boundary line. Not only had the parties and their predecessors in title recognized the line urged by the defendants as the boundary for over forty years, but they had acted accordingly. The trial court is due to be affirmed unless there is a preponderance of the evidence showing the judgment to be clearly erroneous and manifestly unjust. Wills v. Blackwell, 386 So.2d 427 (1980). We do not find such a preponderance of evidence in this case.

Let the judgment be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Andrew J. WATERS v. Opal Jeanette WATERS.
    Civ. 2209, 2209-A.
    Court of Civil Appeals of Alabama.
    July 9, 1980.
    Rehearing Denied Sept. 3, 1980.

      Alice L. Anderson, Chancellor, for appellant.
    Denny L. Holloway, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were divorced in July 1978 by decree of the Geneva County Circuit Court. At the time of the divorce, the parties owned approximately one hundred twenty acres of land. Before the divorce the husband rented the tillable land to Randall Morris, Larry Reeder and Harry Reeder, d/b/a R & M Farm (R & M Farm) for an annual rental of $1,500. The divorce decree awarded the parties’ home with forty acres of the land to the wife. There was no mention of the rents to become due under the lease.

When the rental on the land became due both parties demanded payment of the full amount.

In response to these demands, R & M Farm filed an interpleader action pursuant to Rule 22, ARCP, alleging, inter alia, that forty-six percent of the rental land was within the forty-acre tract awarded to the wife and fifty-four percent was within the land retained by the husband.

In a separate action the wife filed a petition for Rule Nisi based on alleged violations of the original divorce decree by the husband. The husband filed an answer which denied the allegations of the complaint and included a counterclaim for malicious prosecution.

The petition for Rule Nisi and the inter-pleader action were consolidated for hearing. After an ore tenus hearing the trial court entered a judgment granting the in-terpleader and dividing the rental payment in accordance with the percentage of the rental property owned by each party. The trial court entered a judgment on the petition for Rule Nisi in favor of the husband and on the husband’s counterclaim for malicious prosecution in favor of the wife.

The husband’s motion for new trial was denied and he appeals.

The husband contends on appeal that the trial court erred in awarding a portion of the rental payment to the wife and in its judgment in favor of the wife on his counterclaim for malicious prosecution.

The husband argues that the original divorce decree did not award a portion of the rental to the wife and that she is estopped by that judgment or by her failure to raise the issue in the divorce action from claiming any part of the rental.

For a prior judgment to bar a subsequent cause of action under the doctrine of res adjudicata, (1) the prior judgment must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) the parties, or those in privity with them, must be identical in both suits; and (4) the same cause of action must be involved in both suits. Stevenson v. International Paper Co., Mobile, Alabama, 516 F.2d 103 (5th Cir. 1975); Abel (as Administratrix of the Estate of Irene Dickie Waters, Deceased) v. Waters, 373 So.2d 1125 (Ala.Civ.App.1979).

If the same cause of action is involved, the doctrine of collateral estoppel may operate as a bar not only as to every matter raised and litigated in the prior suit, but as to every other matter which might have been litigated. However, if the second suit involves a different cause of action, the prior judgment acts as an estop-pel only as to those matters actually litigated. Byrd v. Fowler, 50 Ala.App. 596, 281 So.2d 647 (1973).

In this case, the original suit was a divorce action involving only the husband and wife. The second suit is an interpleader action instituted by a third party. Clearly the parties in this action are not the same and the action was not barred. It is equally clear that this suit involves a different cause of action. Therefore, only those issues actually litigated between these parties would be subject to collateral estoppel. The parties agree that the issue of the rentals was not resolved by the divorce decree; therefore, it was not barred by the previous judgment.

The husband’s final issue is that the trial court erred in its judgment for the wife on his counterclaim for malicious prosecution. He argues that the judgment is not supported by the evidence.

The trial court heard this matter ore tenus. Its judgment is presumed correct and will not be reversed on appeal unless so unsupported by the evidence as to be plainly and palpably wrong and unjust. Stinson v. Adams, 376 So.2d 1108 (Ala.Civ.App.1979). We have reviewed the record in this case and find the trial court’s judgment for the wife on the husband’s counterclaim to be supported by the evidence.

The appellee requests an attorney’s fee on appeal. We know of no authority for an award to a party, other than an innocent stakeholder, of an attorney fee in an interpleader action under Rule 22, ARCP, at the trial level. Mims v. Alabama Power Co., 262 Ala. 121, 77 So.2d 648 (1955); Pratt v. First National Bank of Fayette, 243 Ala. 257, 9 So.2d 744 (1942). We further know of no authority for such award in any event on appeal after there has been interpleader and dismissal of the stakeholder. The second consolidated issue on appeal is the ruling on the cross-complaint for malicious prosecution. No statutory right to an award of attorney’s fee in such a case exists. Therefore the request of appellee must be denied.

The trial court’s judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Vera ROBERSON v. Honorable Gary L. McALILEY, Judge, et al.
    Civ. 2249.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    Rehearing Denied Sept. 3, 1980.

      James M. Sizemore, Jr., Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for appellees.
   HOLMES, Judge.

The Juvenile Court of Coffee County (District Court) on petition of the Department of Pensions and Security and after an ore tenus hearing awarded custody of a minor child to the Department of Pensions and Security. The minor child’s grandmother, by writ of prohibition or mandamus, sought relief in the circuit court. The .circuit court denied the relief sought and the grandmother appeals.

The dispositive issue is whether the district court had jurisdiction to take the action as indicated above. We find no lack of jurisdiction and affirm.

The record reveals the following facts: The Circuit Court of Talladega County, in 1975 in a divorce action, awarded custody of the minor child to the grandmother. Thereafter, in 1979, the Department of Pensions and Security petitioned the Juvenile Court of Coffee County for temporary custody. The child was physically present in Coffee County at all times pertinent to these proceedings. The petition alleged that the child was in dire circumstances and needed immediate care. Based on the petition, the juvenile court found “exigent circumstances” and granted temporary custody to Department of Pensions and Security. A hearing was then set for September of 1979. The grandmother participated in the September hearing.

After the ore tenus September hearing the juvenile court found the child was in need of care. We would point out at this juncture that it is not necessary to detail the child’s circumstances. Suffice it to say there was ample evidence to support the juvenile court’s conclusion that the child needed care and protection.

The juvenile court ordered the care, custody, and control of the minor child be placed with the Department of Pensions and Security.

The grandmother, in October of 1979, filed the above mentioned writ of prohibition, etc.

The petition for the writ of the grandmother to the circuit court contains the following:

4. The issue presented to the court is whether or not the District Court, sitting as the Juvenile Court, in Coffee County, Alabama, has jurisdiction to affect the custody of the said minor, Teresa Diane Roberson in view of the previous order of the Circuit Court of Talladega County placing said custody in petitioner.

The learned trial judge found that the action of the juvenile court was within its statutory jurisdiction and dismissed the grandmother’s petition.

The grandmother, through able counsel, contends the Circuit Court of Talladega County was the proper forum and not the Juvenile Court of Coffee County, even though the child was located in Coffee County,

In so arguing, the grandmother relies on the general rule that a circuit court hearing a divorce case has inherent power to protect the welfare of any minor child born of the marriage. Moreover, once the circuit court obtains jurisdiction over such a child, that court retains jurisdiction during the child’s infancy. Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970); Rowe v. Hill, Ala.Civ.App., 365 So.2d 1247 (1979).

However, this rule is not followed without exception. Under certain circumstances, the court where the child is then residing may gain jurisdiction concurrent with that of the original court. These circumstances are those “which create an emergency as to the immediate welfare of the child." Ferguson v. State, 251 Ala. 645, 648, 38 So.2d 853 (1949). Indeed, the case of Rowe v. Hill, supra, upon which the grandmother principally relies recognizes this exception. As we said in Rowe:

We do hasten to point out, however, that this is not a case where the Shelby County District Court is being called on to preserve the best interest or protect the safety and well-being of the child; the sole question posed to the court was the custody of the child.

365 So.2d at 1249.

Here, the jurisdiction of the Juvenile Court of Coffee County was invoked pursuant to § 12-15-30(c)(l)a., which grants such a court original jurisdiction in a case concerning any child “who is in a situation subjecting him to physical, mental or emotional abuse or is in clear and present danger of suffering lasting damage . . . Clearly, this was not a case where the sole question posed was the custody of the child. That is to say, the juvenile court was called on to protect the safety and well-being of the child who was then residing within its territorial jurisdiction.

As we have indicated, there is ample evidence to support the juvenile court’s finding that the child was in immediate need of care. On such facts, § 12-15-30(c)(l)a. was properly called into play and was sufficient to bestow upon the Juvenile Court of Coffee County concurrent jurisdiction with the Circuit Court of Talladega County.

We would note that the grandmother also argues the Circuit Court of Coffee County erroneously dismissed her petition because that court concluded it lacked jurisdiction to entertain such a petition. However, as set out above, the principal issue before the circuit court was the authority of the juvenile court to effect the custody of the child. The circuit court correctly found the juvenile court had acted within its statutory jurisdiction. Thus, there is no reversible error.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Melvin W. RIKARD v. Barbara Ann RIKARD.
    Civ. 2257.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    Rehearing Denied Sept. 3, 1980.

      H. Neil Taylor, Russellville, for appellant.
    Robert I. Rodgers, Jr., of Bedford, Bed-ford & Rogers, Russellville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This involves the third divorce between the parties.

The husband appeals, and the sole question presented for review is whether, under the evidence in the case, the parties reconciled two days after the divorce complaint was filed by the wife.

If the parties so reconciled, the effect in Alabama is clear, for a reconciliation between the parties in a pending divorce action abrogates the cause of action; and, ordinarily, the only allowable judgment thereafter is one dismissing the cause. McNutt v. Beaty, 370 So.2d 998 (Ala.1979); James v. James, 369 So.2d 811 (Ala.Civ.App.1979). Thus, in this case, if the parties reconciled, the circuit court erred in rendering the final divorce judgment.

We have located no case in Alabama which defines “reconciliation” or even where the question was contested as to whether the parties had indeed reconciled. In McNutt, supra, it is clear that the parties reconciled since they jointly signed a letter addressed to the trial court stating such fact and requesting that the court dismiss their divorce case. In James, supra, a review of the record discloses no contest of the fact that there had been a reconciliation of the parties pending the litigation. Our previous cases have generally been concerned with the effect of reconciliation rather than as to whether a reconciliation occurred.

In the case at bar the wife’s evidence upon this issue was that she left her husband because of his actual cruelty to her, and, shortly thereafter, on December 17, 1979, she filed her divorce complaint. She testified that two days later:

“I went back to him, because it was right before Christmas, because of Kim, you know, to see if I could make it with him . . He said he would be good to me, that he wanted to try to make it with me and that was before Christmas and I thought well, it would be best if I could try for Kim’s sake.”

Kim was the seven year old daughter of the parties. They lived together in the same house from around December 19, 1979 until January 10, 1980, when they again separated.

The husband’s testimony as to this aspect of the case was that the summons and complaint were served upon him on January 10, 1980, but he had read of her filing the case in the papers. He stated that, “[t]he last time she left, before the[y] served the papers, I went to her mother’s and she came back and lived with me, but she kept on telling me she wanted me to leave and everything and she wasn’t going to drop the divorce.” She lived with him, “but during that time, she said she would have me arrested for Assault with a Deadly Weapon, but she said that she would drop those charges to keep me from going to Jail and I told her, I didn’t care, I would go to Court and see if I went to Jail.”

The foregoing constituted all of the evidence by either party as to the reconciliation question.

In addition to our subsequent comments, we adopt as correct the summary of the law as to what is meant by “reconciliation” as authored by Homer F. Clark, Jr., in The Law of Domestic Relations in the United States, p. 541, wherein it was stated as follows:

It is not difficult to define reconciliation, although its application may be puzzling at times. For the present purpose it means a voluntary resumption of marital cohabitation in the fullest sense. This ordinarily requires a living together as husband and wife, having sexual relations, and, where possible, a joint domicile. The intention of the parties must be to resume married life entirely, and not merely to enjoy each other’s society temporarily, for limited purposes, or as a trial of whether they want to be reconciled. The state of mind required somewhat resembles that usually held necessary for condonation, but the cases do not seem to require that there be proof of forgiveness of past offenses. Isolated acts of intercourse alone would not be enough. [Footnotes omitted.]

For other definitions and authorities, see Black’s Law Dictionary, 5th Ed., p. 1144 (1979), and comprehensive annotations in 92 A.L.R.2d 1009, 1014 (1963), 35 A.L.R.2d 707, 747-753 (1954), and 40 A.L.R. 1227, 1239 (1926).

“A resumption of cohabitation in its fullest sense” simply means what it says; that they act as husband and wife. They resume their status, positions, services, privileges and duties as marital partners in all material respects.

If there was, initially, an intention by both parties to resume the marital relationship permanently and normally, and the parties cohabited, the duration of their cohabitation is immaterial. Some questions may arise as to whether the parties intended to resume married life entirely where they shortly again separate, but that is a factual matter to be considered by the trial judge along with all of the other evidence in the case and reasonable inferences therefrom.

Separated married couples who later cohabit on a trial basis do not have a present intent to resume married life entirely and on a permanent basis. They utilize the trial cohabitation as an instrument to assist them in making up their minds. The requisite intent is not present. They do not intend to settle their differences on a permanent basis, but rather conditionally. After a separation, if the parties casually cohabit, or if the cohabitation is sporadic, or if it is conditional or provisional, there is no reconciliation because of the absence of the required intent.

Reconciliation is largely a state of the minds of both of the parties to be determined from all of the evidence and reasonable and proper inferences therefrom.

The trial judge in the instant case could have determined from the evidence that the wife had no intent to permanently resume marital cohabitations in the fullest sense, but that she lived with her husband through the Christmas holidays for the sake of the child only; that the cohabitation was temporary and for a limited or trial purpose. The quoted portions of the husband’s testimony are highly indicative that the wife did not intend to resume marital cohabitation on any permanent basis, for she consistently informed her husband that she desired that he leave and that she would not dismiss the proceedings.

In Keller v. Keller, 122 Cal.App. 712, 10 P.2d 541 (1932), the court stated:

The real question before the court was whether the circumstances as a whole showed a mutual intention to effect a reconciliation and unite in mending the break in the matrimonial yoke. This was a question of fact for the determination of the judge, who had the parties before him and patiently listened to each. The record, as we view it, indicates that he exercised his judgment fairly and discreetly.

While we affirm this case, we offer a caveat to the bar in all cases, contested or uncontested, where reconciliation might be a valid issue. Attorneys should not gamble with the domestic lives of their divorce clients. When in serious or substantial doubt as to whether the parties effected a reconciliation and subsequently decided to proceed to a divorce, valor dictates a voluntary dismissal without prejudice of the old divorce action and a new beginning with a fresh complaint. It is far better to suffer a short delay than to be haunted and embarrassed by a divorce judgment which is, at least, voidable upon appeal.

This case is affirmed.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Jesse E. DEATHERAGE and Mrs. James Good v. Harvell J. WALKER.
    Civ. 2199.
    Court of Civil Appeals of Alabama.
    Aug. 20, 1980.

      James L. Hunt, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen. and L. Gilbert Kendrick and Benjamin Cohen, Asst. Attys. Gen., for amicus curiae.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a consolidated appeal by two defendants in two malicious prosecution cases which were consolidated for trial purposes with separate jury verdicts in favor of the plaintiff.

SUMMARY JUDGMENT

The defendants each contend that the trial court erred in denying their separate motions for a summary judgment with supporting affidavits. The plaintiff made and filed opposing affidavits in each case indicating a factual dispute. The circuit judge overruled each motion. “A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law.” (Citations omitted.) Imperial Group, Ltd. v. Lamar Corp., Ala., 347 So.2d 988, 989 (1977). The lower court did not err in overruling the motions for summary judgments.

DIRECTED VERDICT MOTION AND SUFFICIENCY OF THE EVIDENCE

At the conclusion of the plaintiff’s evidence, the trial judge overruled each defendant’s motion for a directed verdict. The defendants then introduced much defensive evidence. The motions for directed verdicts were not renewed at the conclusion of all the evidence. No post judgment motion, such as a motion for a new trial, was filed. The defendants contend that the trial court erred in denying defendants’ motions for directed verdicts and that the jury verdicts should be set aside because the evidence was insufficient.

In a case with the same procedural posture as this one, the Alabama Supreme Court has recently joined the Fifth Circuit in requiring that a timely post-trial motion for judgment notwithstanding the verdict is necessary to permit an appellate court to consider the sufficiency of the evidence. Great Atl. & Pac. Tea Co. v. Seaiy, Ala., 374 So.2d 877 (1979). We follow that case law and pretermit these issues.

VERDICTS CONTRARY TO THE GREAT PREPONDERANCE OF THE EVIDENCE

Since the trial court was never requested to rule upon the contention that the verdicts were contrary to the great preponderance of the evidence, this matter may not be considered by this court. Such issue is normally raised by a motion for a new trial under Rule 59, ARCP; but since no such motion was filed in this case, it is outside our authority to pass upon whether the verdicts were contrary to the great preponderance of the evidence. It is too late to make such contention for the first time upon appeal. 2 Ala. Digest Appeal and Error Key 302(6).

ATTORNEY’S FEES

The defendants are correct in their statements of the law to the effect that, in malicious prosecution cases, attorney’s fees normally may not be recovered unless they were specially pled as damages and that, in the absence of proof that such fees are reasonable, attorney’s fees are not recoverable. However, no objection was made during the trial as to the admissibility of any such evidence, and the trial court was not requested in any manner to pass upon the adequacy of the evidence as to attorney’s fees as this issue has been raised in this court. Accordingly, our hands are tied and the trial court cannot be placed in error as to these propositions.

This court much prefers to decide appeals upon their merits. It is most distasteful to base any decision upon procedural matters rather than upon the substance of the appeal. This is especially true and applicable in the case at bar, for most able counsel have earnestly and studiously filed excellent briefs on behalf of the defendants. However, we cannot ignore procedural requirements in order to place a trial judge in error for issues and matters neither advanced in, nor decided by, the trial court. These cases, consolidated on appeal, must be affirmed.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code of Alabama 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the judges concur.


text:
    Douglas H. WALTON v. Penelope F. WALTON.
    Civ. 2306.
    Court of Civil Appeals of Alabama.
    Sept. 3, 1980.

      James K. Davis of Fite, Davis & Fite, Hamilton, for appellant.
    Nelson Vinson of Vinson & Guyton, Hamilton, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case whereby the only appellate issue raised by the defendant husband concerns whether the trial judge abused his discretion in a division of property between the parties.

We will summarize only tendencies of the evidence, giving due consideration to the presumptions applying to a judgment rendered by a trial judge after personally presiding over a non-jury evidentiary trial.

The parties married on December 24, 1969, the wife then being twenty-nine and the husband being thirty years óf age. It was the first marriage for each party. They had one child, a daughter, who was three years of age at the time of the trial. Custody of their daughter was awarded to the mother.

The wife earned an excellent salary during the entire marriage except for approximately one year after the birth of the girl. The husband was employed as a registered pharmacist for two and one-half years and the balance of his time during the marriage was expended in farming chores and improvement, and livestock management and operations for the parties and for his parents.

In March 1972 the parties purchased a 320-acre farm and some farming equipment for a total of about $81,000. A joint deed with right of survivorship was executed to them. As to the down payment of $30,000, the husband paid $20,000 and the wife $10,000. Since then, according to the wife’s records, the following contributions were made by the respective parties toward family living expenses, purchase of the farm and farm expenses: $88,542.12 by the wife and $36,319.21 by the husband. From July 1974 until July 1979, it was the plaintiff’s evidence that she contributed $31,289 (99.5%) as compared to $156 (.5%) from the husband to their joint farm bank account. During that five-year period, deposits to their joint personal account were $26,782 (99%) by her and $296 (1%) by him. Including interest, they owed around $17,000 upon the farm at trial time. The entire farm had been appraised at $158,000. They had expended over $25,000 for farm improvements.

The wife owned a 1977 Chevrolet automobile with an indebtedness of $2,000 against it due to her father. They owned a John Deere tractor, along with two others, and owed the wife’s father $8,900 upon the John Deere. Much farming equipment was depreciated on their joint federal income tax returns.

In the divorce judgment, the circuit judge divided the property after a prolonged trial before him. Generally, the plaintiff was granted all household effects and furniture, her 1977 Chevrolet and the John Deere tractor (with the plaintiff to pay her father for the debts against them), 160 acres of land upon which was situated the home of the parties, and one-half of all farm machinery and equipment depreciated on the 1978 federal income tax return of the parties. The defendant was expressly granted the other half of such farm machinery and 160 acres of land. Each party was required to pay one-half of the existing farm mortgage indebtedness.

A division of property in a divorce case need not be equal but our law requires a graduated division according to the nature of the ease. Bouler v. Bouler, 366 So.2d 290 (Ala.Civ.App.1979); Lindsey v. Lindsey, 361 So.2d 601 (Ala.Civ.App.1978); Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977); Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App.1977); Nix v. Nix, 348 So.2d 802 (Ala.Civ.App.1977).

When a trial judge hears the evidence ore tenus, his decision is presumed to be correct upon appeal and will not be disturbed if the judgment is supported by legal evidence unless it is unjust or palpably wrong. Cobb v. Cobb, supra; Shirley v. Shirley, supra; Nix v. Nix, supra. In Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833, 835 (1975), the following especially applicable language appears:

Division of property, after consideration of equities and contribution by the parties is a matter for the discretion of the court. The exercise of such discretion will not be disturbed on appeal except upon showing of palpable abuse. (Citations omitted.)

We have conscientiously reviewed all of the evidence and it is obvious that the decision of the trial judge was supported thereby. The division of property was not unjust nor palpably wrong; but, to the contrary, the judgment of the circuit court was most equitable toward the husband; especially if the contributions of the respective parties toward the purchase of the farm, farm improvements and family expenses are considered and compared; especially since the trial court did not disturb the ownership or interest, if any, of the husband in much livestock; and especially when consideration is given to the extreme vagueness and absolute evasiveness of the defendant and his mother during examination by the plaintiff’s attorney, which could definitely affect the weight, if any, to be given to their entire testimony by a trial court. The circuit judge certainly did not abuse his discretion in the property divisions.

We affirm.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama (1975). His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Neil TAYLOR, Jr. v. Shirley TAYLOR.
    Civ. 2357.
    Court of Civil Appeals of Alabama.
    Sept. 3, 1980.

      Dave L. Beuoy, Russellville, for appellant.
    Robert L. Gonce of O’Bannon & Gonce, Florence, for appellee.
   HOLMES, Judge.

This is a child custody case.

The father appeals from a decree of the Circuit Court of Franklin County which denied his petition for custody of his two minor children.

The father contends the trial judge erred (1) by abusing his discretion in refusing to award custody of the children to the father, (2) by failing to recuse himself on account of bias, prejudice, or expressed fixed opinion, and (3) by failing to find or recite a finding of the best interest or welfare of the children in question.

We find no error or abuse of discretion and affirm.

The parties were divorced in June, 1977. The divorce decree awarded custody of the parties’ two minor sons to the mother. In December, 1977, the father petitioned for custody of the children. The circuit court denied the petition and was affirmed by this court in Taylor v. Taylor, Ala.Civ.App., 372 So.2d 337, writ denied, 372 So.2d 341 (1979).

The father again seeks custody of the children.

Testimony was heard by the trial judge on two days, January 15,1980, and March 3, 1980. In the interim the father filed a motion for temporary custody of the children. This motion was denied on January 22. On January 23, before the parties were given formal notice of the denial, counsel for the father spoke with the trial judge by telephone. The subject matter of this conversation was the father’s motion for tern-porary custody. The father’s counsel was told that the evidence presented on January 15 did not warrant granting the father’s motion for temporary custody and that the motion was being denied.

The father then moved for a mistrial and recusal on the grounds of bias, prejudice, or expressed fixed opinion. This motion was also denied.

Viewing the record with the attendant presumption accorded the trial court’s decree, we find the following: The father testified that he was financially unable to support the children. The father relied on his father, grandfather of the children, for financial support. The grandfather assured the trial court that he would provide for the children if his son could not.

The' mother remarried on October 23, 1979. The record shows that this marriage has been marked by several separations and reconciliations. At the time of trial the mother was living with her present husband.

The record further shows that the mother had some difficulty in choosing between her present husband and another man. She had been engaged to both men for short periods at separate times prior to her remarriage.

During a period of approximately six weeks commencing in early October, 1979, the mother and the children changed residences three times. These changes in residence were related to the mother’s engagements, her marriage, and the separations from her present husband.

The father and several members of his family testified to the effect that the instability of the mother’s household created emotional disturbances in the children.

The oldest child’s teacher testified to the effect that that child was well adjusted and doing well in school.

The only testimony concerning the emotional state of the youngest child was that of the father and his family. This testimony was to the effect that the child was disturbed.

In November, 1979, the oldest child was ill with stomach cramps, nausea, and vomiting. The father testified that it was his belief that illness was the product of emotional distress.

The physician who treated this child’s illness testified that he saw nothing unusual in the child’s emotional state.

There was testimony that the children were well clothed, well fed, and generally well cared for and that they showed no signs of physical abuse.

I

When a party to a divorce seeks modification of the child custody provisions of the original decree he must show a material change in circumstances which adversely affects the welfare of the children. Hodges v. Nelson, Ala.Civ.App., 370 So.2d 1020 (1979). The trial judge who hears the evidence ore tenus is in the best position to ascertain whether there has been a change in circumstances which requires a custodial change and he “will not be reversed on appeal save for plain and palpable error and abuse of discretion.” Smith v. Smith, Ala.Civ.App., 334 So.2d 915 (1976).

In all eases involving child custody the predominant consideration is the best interest and welfare of the child. Gandy v. Gandy, Ala.Civ.App., 372 So.2d 1016, writ denied, 370 So.2d 1019 (1979).

Applying these principles to the above indicated facts, particularly the father’s inability to support the children, we cannot say that the trial court abused its discretion by refusing to transfer custody of these children to the father.

II

With respect to the trial judge’s refusal to recuse himself we find no error. Canon 3 C(l), A.C.J.E., Code of Ala. 1975, provides in pertinent part:

A judge should disqualify himself in a proceeding in which . . .his impartiality might reasonably be questioned

Canon 3 C(l) does not, however, require disqualification “upon mere accusation of bias unsupported by substantial fact.” Taylor v. Taylor, Ala.Civ.App., 359 So.2d 395 (1978); Wallace v. Wallace, Ala.Civ.App., 352 So.2d 1376 (1977). In other words, the party seeking recusal must come forward with evidence establishing the existence of bias or prejudice.

The father relies on the telephone conversation between his counsel and the trial judge as evidence of bias, prejudice, and expressed fixed opinion. First of all, it must be noted the conversation concerned the father’s motion for temporary custody rather than his petition for permanent custody. Further, at the time of the conversation the motion for temporary custody had already been denied. The trial judge did no more than communicate his reasons for denying the father's motion, i. e., the evidence presented thus far did not warrant granting temporary custody to the father. The trial judge’s statement was not the expression of a fixed opinion. It was no more than an explanation of the denial of the motion for temporary custody.

There is no evidence suggesting that the trial judge was biased or in any way predisposed towards this particular mother on the issue of permanent custody.

There is no evidence to support the father’s charge of bias, prejudice, and fixed opinion. There was no error in the trial judge’s refusal to disqualify himself. See, Taylor v. Taylor, Ala.Civ.App., 359 So.2d 395 (1978).

Ill

The father contends the trial court erred by failing to find or recite a finding of the best interests or welfare of the children in its final order. There is no error here. The trial court need not include a recital of findings of fact or conclusions of law in its final order unless a statute specifically requires it to do so. Rule 52(A), ARCP. There is no statute requiring such recital in this case.

. The mother has requested an award of attorney’s fees for this appeal. An award of $500 is hereby granted.

This case is due to be and is hereby affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    G. Kyser LEONARD v. STATE of Alabama, for the Use and Benefit of TALLADEGA COUNTY, and Talladega County.
    Civ. 2352.
    Court of Civil Appeals of Alabama.
    Sept. 10, 1980.

      Bill Thompson, Talladega, for appellant.
    Robert L. Rumsey, III, Dist. Atty., 29th Judicial Circuit of Alabama, Talladega, for appellee.
   BRADLEY, Judge.

This case arises from the payment to former Talladega County Probate Judge G. Kyser Leonard of $3,124.00 for unused vacations accumulated during his term of office.

Leonard took office on January 18, 1971 for a six year term as Probate Judge of Talladega County. Approximately thirty-three days before his term was up he retired because of a disability. The date of retirement was December 15, 1976. Before Leonard left office he paid himself $3,125.00, less $55.35 for social security, as payment for two and one-half months’ unused vacations for the years 1972 through 1976. This was for two weeks’ paid vacation for a five year period which Leonard said he had not taken. Leonard said this payment was made with the knowledge of the county commission and without any objection by them.

On February 3, 1978 the State of Alabama and Talladega County filed a summons and complaint seeking the repayment of the $3,125.00 plus interest and costs. The complaint also demanded judgment from United States Fidelity and Guaranty Company, as the surety for Leonard’s performance bond.

After various motions, Leonard filed his answer on May 1, 1979 denying every allegation of the complaint.

On October 3, 1979 the State of Alabama served Leonard’s lawyer with plaintiff’s request for admissions from G. Kyser Leonard. On October 18, 1979 the State of Alabama also served United States Fidelity and Guaranty Company with plaintiff’s request for admissions.

Neither party answered these requests for admissions within the thirty day time limit set out in Rule 36(a) of the Alabama Rules of Civil Procedure. On November 15, 1979 after Leonard failed to reply to the request for admissions, the State of Alabama filed with the court a motion, and affidavit in support of the motion, that the request for admissions be deemed admitted pursuant to Rule 36(a). On November 19, 1979 the court issued an order holding the request for admissions admitted.

On February 22, 1980, after the United States Fidelity and Guaranty Company failed to reply to the request for admissions, the State of Alabama filed a motion and a supporting affidavit that the request for admissions be deemed admitted pursuant to Rule 36(a). On February 25, 1980 the court ordered the request for admissions deemed admitted.

In summary, what the admissions consisted of were as follows:

1. Admit that Probate Judge Leonard retired on December 15, 1976.
2. Admit that Act No. 1002, Acts of Alabama 1969, fixed the salary for Probate Judge Leonard of Talladega County at $15,000,
3. Admit that Leonard began receiving a salary on January 18, 1971 and stopped receiving a salary on December 15, 1976.
4. Admit that the check for $3,069.65 ($3,125.00 less $55.35 for social security) was for unused vacation time and that Leonard signed the check and received the proceeds.
5. Admit that the Office of Probate Judge of Talladega County during the years 1971 through 1976 did not have a policy of vacations.
6. Admit that Leonard did not have prior approval of the county commission to pay himself for two and one-half months’ vacation.
7. Admit that there was not a policy or resolution whereby a probate judge in Talladega County during 1971 through 1976 could be paid for vacation time allegedly not taken.
8. Admit that no Talladega County employees received pay for unused vacation time from January 18, 1971 through December 15, 1976.
9. Admit Leonard knew his salary was limited to $15,000.00.
10. Admit Leonard was wrongfully paid for unused vacation time to which he was not legally entitled by law.
11. Admit Leonard has not repaid the $3,125.00 as demanded by the Department of Examiners of Public Accounts.
12. Admit that Leonard is covered by a $50,000 bond as probate judge and a $3,000 bond as chairman of the county commission, both bonds with the United States Fidelity and Guaranty Company of Baltimore, Maryland and both bonds are in full force and effect.

On December 27, 1979 the State of Alabama served Leonard’s counsel and counsel for United States Fidelity and Guaranty with a motion for summary judgment, along with supporting affidavits, pleadings, and admissions, pursuant to Rule 56 of the Alabama Rules of Civil Procedure.

The motion for summary judgment was heard on February 25, 1980. Leonard was the only witness at the hearing. Leonard’s testimony was essentially the same information which was contained in the request for admissions. On April 9, 1980 the court granted plaintiff’s motion for summary judgment. Judgment was given against Leonard in the sum of $3,125.00 together with interest at six percent from December 15, 1976 in the amount of $621.58 and for court costs in the amount of $48.00. Leonard appeals from the granting of the summary judgment. We affirm.

The issue presented in the trial court was whether Leonard could be paid for unused vacation time for the period 1972 through 1976. However, on appeal Leonard admits that he cannot exceed his annual salary of $15,000.00 and therefore cannot recover for unused vacation time for years preceding 1976 and we agree. Morgan County v. Fidelity & Deposit Co., 200 Ala. 690, 77 So. 233 (1917); Act 1002, Acts of Alabama 1969.

Act 1002, Acts of Alabama 1969, provides in part:

Section 1. The following officers of any county having a population of not less than 65,000 nor more than 95,000 according to the most recent federal decennial census shall be entitled to compensation, payable out of the county treasury as follows:
(a) For the probate judge, a salary of $15,000 per annum;
Section 2. A. The salaries of the county officers as provided in Section 1 of this Act shall be the entire compensation received by any such officers for [their] services.

Leonard contends, however, that a probate judge, entitled by custom and practice to two weeks’ vacation per year, may retire two weeks early with pay as his vacation if he has had no vacation that year and does not exceed his annual salary limit of $15,-000.00. Leonard further contends that the trial court committed reversible error when it granted summary judgment because:

The effect of the trial court’s judgment was that there was not a scintilla of evidence to submit to a jury that Judge Leonard was entitled to a vacation in 1976 and as a matter of law, he was not entitled to a vacation.

The trial court in granting the motion for summary judgment did not say that Leonard was not entitled to a vacation in 1976. The trial court held as a matter of law that Leonard was not entitled to pay in lieu of a vacation in 1976. Such a construction of Act 1002 is fully applicable here because nowhere in the statute does it provide that a probate judge may receive a paid vacation, or pay in lieu of a vacation. In the absence of a provision granting such vacation pay, none will be implied. Persons accepting public office must look to the statute for express authority for compensation. Mobile County v. Williams, 180 Ala. 639, 61 So. 963 (1913). 15A Ala. Digest Officers-Compensation §§ 93, 94. Where no pay for unused vacation time is provided for in the statute, none will be implied. Therefore, the trial court properly found that no material issue of fact existed and the State is entitled to a judgment as a matter of law pursuant to Rule 56(c) of the Alabama Rules of Civil Procedure.

This conclusion is bolstered by Leonard’s admission that he was paid a pro rata portion of his salary through December 15, 1976. This is the correct amount due Leonard since he admitted that he gave up his office on December 15, 1976. In Morgan County v. Fidelity & Deposit Co., supra, our supreme court stated that:

When official services are compensated by a fixed annual salary, and the term served includes a fraction of a year, the intendment is that such fraction shall be compensated pro rata.

Continuing in Morgan County the court said:

Whatever he has received or retained in excess of such amounts belongs to and is recoverable by the county .

It is clear from the evidence that Leonard left his office on December 15, 1976. On this date his services terminated and he was not entitled to any further compensation.

AFFIRMED.

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