text:
    Mitzi Jo Burkley BUTLER v. Jeffery Lynn HINSON.
    No. 52058.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Zuccaro, Riley, Pintard & Brown, Edwin E. Kerstine, Natchez, for appellant.
    Jeffery Lynn Hinson, pro se.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice,

for the Court.

On February 5,1979, the Chancery Court of Adams County, Honorable Frank W. Walden presiding, entered a decree divorcing Mitzi Jo Burkley Hinson (Butler) from Jeffery Lynn Hinson, adjudicating a property settlement between them, and granting alimony in the sum of forty-four hundred dollars ($4,400), payable in monthly installments of one hundred dollars ($100.00) for forty-four (44) consecutive months. Thereafter, on May 3, 1979, Mrs. Butler filed a petition charging that Hinson was in arrears for the payments due from March through May, 1979, and seeking to reduce those amounts to judgment. She also sought attorney’s fees.

When the petition was heard, the chancellor discovered that appellant had married again. He entered judgment for the amount due from the date of the decree until the time of her remarriage, and awarded one hundred dollars ($100.00) attorney’s fees. However, he modified the original divorce decree, and terminated the alimony as of the date of remarriage.

Mrs. Butler appeals from the decree and the sole question presented is whether or not the lower court erred in terminating the alimony payments.

That part of the final divorce decree, which pertains to alimony, follows:

“Defendant, Jeffery Lynn Hinson, is able and is hereby ordered to pay to the Complainant alimony in the lump sum of Four Thousand Four Hundred Dollars ($4,400.00) to be paid in monthly installments of One Hundred Dollars ($100.00) per month for forty-four (44) consecutive months beginning March 1, 1979, and a like sum of One Hundred Dollars ($100.00) on the first day of each and every month thereafter for forty-three (43) continuous months. Said payments shall be made at the office of the Chancery Clerk of Adams County, Mississippi.” (Emphasis added)

It is significant that the decree recited appellee was to pay unto appellant alimony in the lump sum of $4,400, payable in 44 consecutive months beginning March 1, 1979. The chancellor stated at the petition hearing that he did not intend for the alimony to be lump sum alimony and that, therefore, he had the authority to modify the decree and to terminate the alimony upon appellant’s remarriage.

Bunkley and Morse, Amis on Divorce and Separation in Mississippi, § 6.07, at 186 (1957), sets out the following general statement of the law:

“Where alimony is awarded in á lump sum, it is a final settlement between the husband and wife as to the extent of his duty to contribute to her support which cannot be changed or modified on the application of either party for any cause whatsoever. . . . The allowance cannot be decreased or abated by reason of the remarriage of the wife. . . . ”

In Hopkins v. Hopkins, 379 So.2d 314 (Miss.1980), the lower court modified a final decree relating to alimony, stating that payments of one hundred fifty dollars ($150.00) per month for eight (8) consecutive months provided in the decree was not intended to be permanent, but only temporary, covering the months in which Mrs. Hopkins was disabled. The pertinent part of the final decree modified recited:

“ ‘It is further,
ORDERED, ADJUDGED AND DECREED that the Defendant shall pay unto the Complainant the sum of $2,000.00 on or before Jan. 1, 1977, thereby discharging him from any and all claims of the Complainant. That in addition to the lump sum payment, Defendant is hereby ordered to pay unto Complainant, beginning on January 1, 1978, the sum of $150.00 per month, temporary alimony, for eight (8) consecutive months, in the full sum of $1,200.00 . . .’” 379 So.2d at 315.

This Court held that the lump sum payment of two thousand dollars ($2,000) and the additional twelve hundred dollars ($1,200) paid in eight monthly installments of $150.00, was a final payment and settlement of all claims for alimony.

The decree of February 5, 1979, in the case sub judice was approved by the attorneys and provided that the $4,400.00 was lump sum alimony. The fact that such lump sum alimony was payable in installments does not change the character of it. A court can speak only through its minutes, and the provisions of the decree prevail over the words of the trial judge stating what was his intent.

We are of the opinion that the chancellor erred in modifying the final divorce decree terminating lump sum alimony and the judgment of the lower court is reversed, judgment is rendered here, and the cause is remanded to the lower court for further proceedings consistent with this opinion.

REVERSED, RENDERED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    Tommy NEAL v. STATE of Mississippi.
    No. 52019.
    Supreme Court of Mississippi.
    Aug. 6, 1980.

      Dulaney & Dulaney, J. W. Dulaney, Jr., Tunica, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   BROOM, Justice,

for the Court.

Manslaughter is the offense for which Tommy Neal (defendant/appellant) was convicted at his trial in the Circuit Court of Tunica County upon a murder indictment. Neal was sentenced to twenty years imprisonment. On his appeal, he argues: (1) the cause of death was not sufficiently proven; (2) incriminating statements made by him were admitted into evidence contrary to his Miranda rights; and (3) other evidentiary questions were in issue. We affirm.

Gambling, participation in a crap game at the Whitestone Cafe in Tunica, marked the defendant’s activities prior to his shooting the deceased Ananias “Shorty” Harris. Eyewitnesses testified as to the fact that Neal shot Harris from a distance of approximately fifteen feet. According to Neal, Harris was “cussing” and intimidating him, after which Neal left the Whitestone and went to another place where there were gambling activities. During this interval, Neal went to his home, got his pistol and returned to the Whitestone Cafe. Neal testified that Harris again cursed him and “got after” him. He related that other people nearby “squalled” and began running, at which time he saw Harris behind him with something in his hand. At that time, Neal stated that he pulled his pistol from his pocket and shot Harris, as Harris uttered to him the following threat: I’ll bust your head, shoot you, or something.”

After the shooting, Neal went to the sheriff’s office where he was first seen by Johnny Boyd, the dispatcher-radio operator, a civilian employee of the office. Apparently, no one was in the sheriff’s office except Boyd and Neal. According to Boyd, Neal walked in with a pistol in his hand which Boyd told him to place on the counter. After putting the pistol on the counter, Neal voluntarily told Boyd that he had shot a man. Neal then “volunteered” certain inculpatory statements which he argues were inadmissible under the Miranda rule. Other facts will be set forth where appropriate in this opinion.

The first issue is whether the cause of death was adequately proven by competent evidence. Embalmer-funeral director Crawford, over defense objections that Crawford was not qualified to testify as to the cause of death, gave the only testimony relating to the cause of death. Crawford had been a practicing embalmer for many years and in other cases had testified as to the cause of death.

After the affray, Harris was taken first to the Tunica Hospital and later transferred to a hospital in Memphis. Harris was dead on arrival at the hospital in Memphis, or shortly thereafter. None of the attending physicians who attempted to treat Harris for the gunshot wound were called to testify, and no certified copy of the death certificate was introduced below. We point out that in this type of case, prosecutors should introduce into evidence medical (doctor’s) testimony, if any available, as to the cause of death, along with the official certificate of death. Absent such testimony, some reason or explanation should be given which was not done here.

Neal cites Thompson v. State, 220 Miss. 200, 70 So. 341 (1954), as holding that a certified death certificate is admissible in criminal cases as prima facie evidence of the physical cause of death. In this regard, we have repeatedly held that it is the burden of the prosecution to establish the corpus delicti: that the deceased is in fact dead, and that death resulted from a criminal agency. Of course, our rule is that whether a witness may speak as an expert is a question addressed largely to the trial court’s sound judicial discretion. In the instant case, embalmer Crawford gave testimony outside the presence of the jury that he assumed (but did not positively know) that Harris died from the gunshot wound. In 'the jury’s presence, Crawford testified he discovered on the body of Ananias one wound which was a gunshot wound in the lower part of the chest cavity. Crawford’s opinion, which went to the jury, was that the cause of death was the gunshot wound, and there was no evidence to the contrary. It is well established in this jurisdiction that proof of the cause of death in homicide cases may be by lay testimony. McCraw v. State, 260 So.2d 457 (Miss.1972); King v. State, 251 Miss. 161, 168 So.2d 637 (1964). Upon this record we are unwilling to rule that the lower court erred in allowing Crawford to give his opinion as to the cause of Harris’ death.

The next issue is whether inculpatory oral statements made by Neal to Officer Boyd in the sheriff’s office were erroneously admitted into evidence. Prior to the trial there was a hearing on a motion to suppress testimony as to any statements Neal made to Boyd or any bona fide police officers of the Tunica City Police Department or Tuni-ca County Sheriff’s Department. The lower court held that, as to any statements Neal made to the bona fide officers of the police and sheriff’s department, the motion was sustained. However, he allowed Boyd, the radio dispatcher, to testify as to statements Neal made in Boyd’s presence. The record shows that Neal voluntarily went to the sheriff’s office and complied with Boyd’s request that he put the pistol on the counter. At this time Boyd had no knowledge of the shooting, and Neal voluntarily told him that he (Neal) had shot a man. Boyd then asked Neal where the shooting occurred and Neal replied, “at the White-stone Cafe.” Of course, Boyd acted properly in propounding the tactical question as to where the shooting occurred — he needed to know where to dispatch law officers to investigate what Neal reported to him. Boyd testified that Neal told him that he “shot him in the abdomen” after an argument because the man had a bottle in his hand and kept threatening him. Then Boyd stated that Neal told him he had told the man to wait and that he (Neal) “went home and got my gun.” During this entire exchange, Boyd was the only officer present, but shortly thereafter, other law officers arrived and radio dispatcher Boyd turned the matter over to them.

Neal argues that his statements to Boyd were inadmissible because Boyd failed to give him warnings about his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Our view is that what Neal stated to Boyd was voluntary and spontaneous, and therefore admissible, even though Boyd did not advise him of his Miranda rights. Nevels v. State, 216 So.2d 529 (Miss.1968).

The next proposition argued is the contention that the lower court erred in permitting the prosecution to question its own witnesses as to the size of Harris, the defendant’s victim. Testimony during the trial established that Ananias Harris was only about four and one-half to five feet tall. Neal contends that this evidence was prejudicial to him. We find no reversible error in this regard and point out that Neal may have benefitted from the testimony concerning Harris’ size because it showed the reason he appeared to be afraid of Harris was because of the threat presented to him in view of the fact that Harris had a bottle or something in his hand. There is no reversible error in this aspect of the case in which no fair-minded juror could have returned any verdict other than that of “guilty.”

Upon excellent briefs and oral argument, we have carefully reviewed this case and find that the evidence is sufficient to sustain the conviction. Although it cannot be said that Neal received a perfect trial, he received a fair trial without any reversible error.

AFFIRMED.

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


author: WALKER, Justice,

text:
    INVESAT CORPORATION v. HARRISON ENTERPRISES, INC., and E. Lee Harrison, Jr.
    No. 51979.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Butler, Snow, O’Mara, Stevens & Canna-da, Stephen W. Rosenblatt, James W. O’Mara, Jackson, for appellant.
    Edward L. Cates, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court.

This is an appeal from an order of the Chancery Court of the Second Judicial District of Jasper County, Mississippi, overruling a motion to dissolve a preliminary injunction. The chancellor allowed the defendant to take this interlocutory appeal pursuant to Mississippi Code Annotated section 11-51-7 (Supp.1979).

In 1977 Invesat Corporation loaned $400,-000 to Mississippi Farmers Association Meat Producers, Inc., a wholly-owned subsidiary of Mississippi Farmers Co-op Association. As part of the same transaction the complainants, E. L. Harrison, Jr., and Harrison Enterprises, Inc., gave Invesat Corporation a deed of trust on certain real property located in Jasper County as security for the loan. In addition, two other parties involved in the transaction assigned certificates of deposit in the amount of $100,000 each to Invesat to secure the loan.

In May of 1979, Invesat declared the loan to be in default and took steps to auction the certificates of deposit at public sale. One of a series of actions designed to postpone this impending sale was the filing of a bill of complaint for injunction and motion for preliminary injunction without notice in the Jasper County Chancery Court, on July 19, 1979. That same day, without notice to Invesat, the chancellor ordered that a preliminary injunction be issued conditioned upon the complainants posting a bond in the amount of $5,000.

Invesat’s motions to dissolve the preliminary injunction or in the alternative to require proper injunction bond in double the value of the property were overruled. However, the chancellor granted Invesat’s petition for an interlocutory appeal.

On appeal Invesat argues several valid assignments of error. We need only consider one, however. The preliminary injunction issued by the Chancery Clerk of Jasper County is void because it was issued without the bond being posted. Miss.Code Ann. § 11-13-5 (1972); International Asso ciation of Bridge, Structural and Ornamental Ironworkers v. Howard L. Byrd Building Service, Inc., 284 So.2d 301 (Miss.1973); Federal Land Bank of New Orleans v. Brumfield, 185 Miss. 487, 187 So.2d 522 (1939).

In Griffith, Mississippi Chancery Practice § 448 (2nd Ed. 1950), the rule is stated as follows:

Before the clerk can validly issue the citation or the writ of injunction the bill must be filed and docketed, and he must not issue the writ of injunction until the bond required is given and approved. Before any preliminary writ or order can have the effect of an injunction, by whatever name the writ may be called, it is essential that bond be required and be given, and if it is not so done the injunction is a nullity.

We have carefully searched the record and can find no evidence that the bond required by the chancellor was ever posted. Further, although the point was argued in Invesat’s briefs, the appellees chose not to reply to that argument and have not filed a suggestion of diminution of record. We must therefore conclude that no bond was ever posted.

Because the complainants failed to post the $5,000 bond required by the chancellor’s order, the purported injunction is void and should be dissolved. We, therefore, reverse the chancellor’s order overruling Invesat’s motion to dissolve the preliminary injunction. We remand the cause to the lower court for ascertainment of the amount of damages to be awarded for wrongfully suing out of the injunction.

REVERSED AND REMANDED FOR ASCERTAINMENT OF DAMAGES.

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


author: SMITH, Presiding Justice,

text:
    Barbara Lott WELBORN v. James Webb WELBORN and Edwin B. Watkins, Trustee for and on Behalf of the Veterans’ Farm and Home Board of the State of Mississippi.
    No. 52088.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Binder & Moore, Russel D. Moore, III, Jackson, for appellant.
    King & Spencer, Robert W. King, Jackson, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court.

Barbara Lott Welborn appeals from a decree of the Chancery Court of Hinds County dismissing her petition for partition of certain real estate which she and her former husband, James Webb Welborn, own as joint tenants, with the right of survivor-ship.

In March, 1978, Barbara Lott Welborn was granted a divorce from her then husband, James Webb Welborn, was awarded custody of the minor child born of the marriage together with alimony to continue for 24 months or until she should find gainful employment.

The property, sought to be partitioned and which is the subject of this suit, consists of approximately 75 acres and is encumbered by a mortgage securing an indebtedness to the Veterans’ Farm And Home Board of Mississippi. It was jointly owned by the parties prior to the divorce. The divorce decree directed, in addition to alimony, that James Webb Welborn pay the monthly installments of the mortgage debt and taxes, and further provided that he pay his former wife $1,000.00 for her attorney’s fee in the divorce suit.

In the divorce decree the chancellor ordered that Barbara Lott Welborn should have the exclusive use and occupancy of the former “marital dwelling and yard,” and that appellee, James Webb Welborn, “except for her (appellant’s) ingress and egress,” should have the exclusive use and occupancy of “pastures, farmlands and buildings” of the said 75 acre tract.

In April, 1979, Barbara Lott Welborn filed the petition for a partition of said land, either in kind or by sale and division of the proceeds, as provided by Mississippi Code Annotated section 11-21-3 (1972), which gave rise to the present litigation.

James Webb Welborn did not answer but moved to dismiss the petition upon the grounds (1) the divorce decree “settled the rights of the parties with respect to the use and occupancy” of the property, and (2) he resided on the property and “obtained homestead exemption” on it (from certain taxes) as shown by a copy of his application therefor attached to the motion. Also attached to the motion was a copy of the divorce decree.

The chancellor, apparently without hearing testimony, sustained the motion and dismissed appellant’s petition upon the grounds that movant was occupying the jointly owned property as his homestead and that a partition would defeat the rights granted to him under the divorce decree as well as his homestead rights.

Mississippi Code Annotated section 11-21-3 (1972) is as follows:

Partition of land held by joint tenants, tenants in common, or co-parceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands or some part thereof, are situated, or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.
However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, re-maindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as complainants or petitioners. (Emphasis added)

Mississippi Code Annotated section 27-33-3 (1972), which provides for the exemption of homesteads from certain taxes does not affect the right of a cotenant or tenant in common to partite property commonly or jointly owned.

Section 91-1-23 appears to be the only section relating to partition as it affects an exempt homestead, and provides:

Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent. [Mississippi Code Annotated § 91-1 — 23 (1972)].

Since both parties are living the above statute has no application in the present case.

Counsel for appellant cite Blackmon v. Blackmon, 350 So.2d 44 (Miss.1977).

In that case Mr. and Mrs. Blackmon already owned certain real property as tenants in common when she was granted a divorce from him. Prior to the divorce they had resided on the property and had obtained a tax exemption on the basis that it was their homestead. The divorce decree awarded Mrs. Blackmon exclusive use of the marital dwelling. Afterward, Mrs. Blackmon filed a petition for partition of what had been their homestead property. The chancellor dismissed the petition and Mrs. Blackmon appealed. This Court reversed and remanded the case with directions to proceed with the partition, saying:

Mrs. Blackmon, as a tenant in common before the divorce with an undivided one-half interest in the property, has the same status following the divorce. Clearly she comes within the purview of § 11-21-3. (Emphasis added).
(350 So.2d at 45).
The Court said:
Appellant’s third proposition is that the existence of homestead rights in one co-tenant does not defeat the right of partition by the other co-tenant. Discussion of this assignment of error is closely related to Assignment No. 2. The right to partition pursuant to Mississippi Code Annotated, Section 11-21-3 (1972), makes no mention of homestead.
(Emphasis added).
(350 So.2d at 47).

In Blackmon, supra, this Court rejected Mr. Blackmon’s contentions in the following language:

The position of the appellee that Mrs. Blackmon’s right to exclusive occupancy defeated her statutory right to partition, however appealing, is without merit. .
(350 So.2d at 45).

The chancellor was in error as to the first ground assigned as a basis for sustaining the motion to dismiss the petition for partition, to the effect that James Webb Wel-born had obtained homestead exemption which barred partition, and also was in error as to the second ground for dismissal that “partition of the property would serve to defeat certain rights granted him (appel-lee) under terms” in the divorce decree.

The divorce decree had provided that Barbara Lott Welborn should occupy the dwelling and have custody of the minor child born of the marriage, with alimony for 24 months or until she became gainfully employed. This was a reasonable and proper provision under the circumstances for the wife and child. The decree also provided that James Webb Welborn should have the right to occupy and farm a portion of the property, not described but apparently consisting of all except the dwelling house and yard and right of way for ingress and egress to and from the same. Patently the decree made no attempt to grant to either party an estate for life or for years or any other estate or title in derogation or diminution of the title already vested in them respectively as joint tenants; such title already was firmly and indefeasibly vested in Barbara Lott Welborn and James Webb Welborn, and the provision in the divorce decree that James Webb Welborn might farm a portion of the land was ineffectual to deprive her of her vested interest or to restrict the exercise of her rights with respect to the same.

In appellee’s “Statement of the Case” it is asserted, (dehors the record, but not disputed by appellant), that Barbara Lott Wel-born no longer occupies the dwelling but has moved to Hancock County where she now resides.

James Webb Welborn’s rights to the use of the common or jointly owned property are well established in law. The circumstances of the present case are not such as to require Barbara Lott Welborn, as the injured party in the divorce suit, to occupy the former dwelling permanently or indefinitely or to forfeit rights vested in her as joint tenant. Under the divorce decree James Webb Welborn acquired no permanent right, title, interest or estate in the property or to the indefinite or permanent use thereof to the exclusion or in derogation of the right, title, estate and interest of the other joint tenant, Barbara Lott Welborn.

In Bunkley and Morse’s Amis On Divorce And Separation In Mississippi section 6.06 (1957), appears this statement:

The Supreme Court has held that the chancellor cannot, simply by decree or judicial fiat, divest real property out of the husband and invest it in the wife. . [B]ut the court cannot by its order or decree divest out of one and invest in the other.

The provision for the wife and child to occupy the former home must be considered as a temporary measure for their protection following the divorce, as was the award of alimony for 24 months or until Mrs. Wel-born became gainfully employed. The provision that she and the child should have the privilege of occupying the house and yard was reasonable under the circumstances at the time. She was before that, and is now, a joint tenant with the right of possession. She has elected to move elsewhere and to ask for a partition of the property. She is entitled to have it under the statute. In effecting a partition James Webb Wel-born will be deprived of nothing to which he is entitled. He will share in the value of the entire estate, the dwelling and yard as well as the farmland.

It was error to enter a decree sustaining the motion to dismiss the petition for partition. The decree appealed from is therefore reversed and the case remanded with directions that the petition be reinstated and that proceedings for the partition of the land proceed as provided by statute.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    Nelson HUNTER v. STATE of Mississippi.
    No. 51909.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Rehearing Denied Aug. 27, 1980.
    Richard L. Stradley, Walnut Grove, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    James Edward PARNELL v. Jeannie Faye PARNELL.
    No. 52046.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Rehearing Denied Aug. 27, 1980.
    Warner, Ray & Cobb, Harvey B. Ray, Meridian, for appellant.
    Goldman & Goldman, Robert M. Dreyfus, Jr., Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


author: PER CURIAM. JONES, Justice

text:
    NOBILITY HOMES, INC. v. James A. BALLENTINE and Nelly R. Ballentine; Rollin Homes Corporation.
    78-363.
    Supreme Court of Alabama.
    May 16, 1980.
    As Corrected on Denial of Rehearing Aug. 8, 1980.

      Richard B. Garrett of Rushton, Stakely, Johnston & Garrett, P. A., Montgomery, for appellant.
    George H. B. Mathews, Montgomery, for James A. Ballentine and Nelly R. Bal-lentine.
    J. Floyd Minor of Wood, Minor, Parnell & Sforzini, P. A., Montgomery, for Rollin Homes Corporation.
   PER CURIAM.

This case concerns a suit for misrepresentation and breach of warranty against both the retailer and the manufacturer of a mobile home purchased by appellees, James and Nelly Ballentine. The trial judge entered judgment for the Ballentines on both counts pursuant to a jury verdict. We affirm, in part, reverse, in part, and render.

The questions presented and discussed are:

(1) Is the jury’s verdict which passed all compensatory damages awarded against the retailer on to the manufacturer supported by the weight and preponderance of the evidence?

(2) Did the trial court err in allowing the misrepresentation claim to go to the jury when the uncontroverted evidence was that the representation in the manufacturer’s brochure was entirely and literally accurate yet could possibly mislead the purchaser?

(3) Did the trial court err in awarding the attorney’s fees and costs to the purchasers to be paid by the manufacturer under the federal Magnuson-Moss Warranty Act?

During the month of September, 1977, plaintiffs James A. and Nelly R. Ballentine placed an order with Bill Dickinson, president of defendant Rollin Homes Corporation, for the purchase of a Georgetown model mobile home manufactured by defendant Nobility Homes. During the negotiations for the sale of the home, Dickinson gave the Ballentines a sales brochure distributed by Nobility on the Georgetown home. The brochure made the following representation under the heading of “Construction Quality Features”: “Floor decking is %" tongue and groove for added strength.”

The contract finally agreed upon between Dickinson and the Ballentines provided that the home would be upgraded in certain respects. Dickinson failed to include some of these options in the final sales order and the Ballentines were reimbursed by him for these deficiencies. The Ballentines ordered an air conditioning unit for the home which was purchased by Rollin Homes from a Montgomery dealer. Nobility did not supply the air conditioning unit.

The mobile home was delivered from Rol-lin Homes’ lot to the plaintiffs’ site in El-more County, Alabama, on October 13,1977. The home was then set up over a period of three or four days by Bill Dickinson and other employees of Rollin Homes. Since this was a doublewide mobile home, the set-up included fastening the two halves together, leveling the trailer, connecting pipes and ducts between the two halves, and installing molding, outside lap board and other items where the two halves of the home joined. “Corner lapping” was installed by Rollin Homes as part of the set-up, as were gutters on the front and back of the home.

During the months after the Ballentines took possession of the home, they discovered numerous deficiencies in the home. Rol-lin, Nobility and other firms attempted to remedy the situation. They could not satisfy the Ballentines.

During the attempted remedy of the deficiencies in the home, Ballentine had cause to examine the hidden sub-flooring or floor decking in his home. He found that it was constructed with six-foot wide particle board with tongue and groove joints at each six-foot interval. Particle boards are made from compressed sawdust and glue.

The Ballentines filed suit against Rollin Homes alleging that Rollin breached its implied warranty of merchantability in that the home did not heat or cool properly; the vinyl floor covering was creased; the floor was uneven; the ceiling tile was defective; the roof and bay window periodically leaked; the exterior paneling was broken and chipped; the exterior fasteners were corroded; and, there were staples imbedded in the carpeting. The Ballentines demanded $10,000 in damages, plus costs and an attorney’s fee pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(2). Rollin Homes filed a third-party complaint against Nobility and alleged that if Rollin was found liable for any or all of the damages that the Ballentines demanded, then Nobility should be held liable for any or all of such damages because Nobility impliedly warranted to Rollin that the home was merchantable. Subsequently, the Ballentines amended their complaint by adding Nobility as a defendant and adding a count in fraud against Nobility alleging that Nobility fraudulently represented to the Ballentines, through its brochure, that the home had tongue and grove flooring when in fact the flooring was constructed of tongue and groove particle board.

The total invoice price of the home, including all the options ordered and before Dickinson’s refund for options Ballentine did not get because Dickinson failed to order them, was $26,291.55. The stock price of the home without options was $24,830. Ballentine testified that in his opinion the home was actually worth “ . . less than $16,000, fifteen or sixteen, or something like that.”

The jury returned a verdict against Rollin in the. amount of $8,000 on the warranty claim. It then passed that entire amount on to Nobility pursuant to the third-party complaint. On the fraud count, the jury returned a verdict against Nobility in the amount of $15,000. Judgment was entered pursuant to the jury’s verdict.

I

Nobility appeals, contending the trial court erred in not granting a new trial when it alleged in its motion for J.N.O.V. or new trial:

“The verdict of the jury in favor of Rollin Homes Corporation against Nobility was against the weight and preponderance of the evidence.”

Although the plaintiff correctly states that an allegation that the verdict is contrary to the evidence is insufficient to bring the issue of damages before the trial court, we do not believe that this issue is an allegation that the damages were excessive. Rather, the issue is whether the jury erred in finding that Nobility is liable for all the damages assessed against Rollin on the warranty claim.

As earlier noted, there were several alleged deficiencies in the home which the Ballentines contended constituted a breach of warranty. A review of the evidence indicates that some of these deficiencies were the sole responsibility of the manufacturer; some were the sole responsibility of the retailer; and in some areas the retailer and manufacturer shared the responsibility. Ballentine testified that the home had a value of between $15,000 and $16,000. The invoice price was $26,291.55; therefore, the evidence is adequate to support a jury finding that the $8,000 represents damages for only those deficiencies which were the sole responsibility of Nobility and does not represent the loss in value of all the alleged deficiencies in the home. That being the case, we cannot overturn the verdict of the trier of fact.

We should point out that during trial the judge refused to submit special interrogatories for the jury which were offered pursuant to Rule 49, ARCP. The interrogatories would have ascertained for which specific deficiencies the jury was assessing damages.

Although the submission of interrogatories is within the sole discretion of the judge, it appears that submission of them would have been helpful in this case.

The judgment of the court below on the third-party complaint is due to be affirmed.

II

The trial court not only erred in submitting the fraud count to the jury but also instructed the jury incorrectly on the law of fraud in Alabama. Ballentine contends that “tongue and groove” implies a three or four-inch wide board and not a six-foot wide particle board. He testified, and his counsel stipulated, that the flooring in the home did in fact have a tongue and groove joint. The jury was instructed that a representation, though literally true, which is misleading may constitute a misrepresentation actionable under our statutes. There is no Alabama authority which supports such a proposition.

This Court has heretofore consistently adhered to the position that a mis representation as envisioned by the statute must in fact be a false representation. The most recent expression of our view on the subject of misrepresentations actionable under § 6-5-101 is found in Pugh v. Kaiser Aluminum & Chemical Sales, Inc., 369 So.2d 796 (Ala.1979), wherein it was said:

“In actions for fraud, it is necessary that there be a false representation concerning a material existing fact. The plaintiff must rely on that false representation and must be damaged as a proximate result.” (Emphasis added.) 369 So.2d at 797.

In another recent case, International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977), this Court enunciated the elements of legal fraud under § 6-5-101 in the following manner:

“Regardless of whether the representations were made wilfully, recklessly or mistakenly, it has been held that there must be (1) a false representation, (2) the false representation must concern a material existing fact, (3) the plaintiff must rely upon that false representation, and (4) the plaintiff must be damaged as a proximate result.” (Emphasis added.) 350 So.2d at 394.

At least as early as 1940, this Court pointed out that the essence of legal fraud lies “ . . .in the assertion of that to be true which is not true . . ..” Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940); see Rudman v. Hooks, 252 Ala. 280, 40 So.2d 866 (1949).

The transaction in this case was an arm’s length business transaction. As this Court observed in a 1945 suppression case, Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550 (1945):

“[W]hen both parties are intelligent and fully capable of taking care of themselves and dealing at arms’ length with no confidential relations, ... no duty to disclose exists when information is not requested, and . . . mere silence is then not a fraud.” 247 Ala. at 377, 24 So.2d at 562.

Under the facts of this case, no duty to disclose arose because no request for information regarding the material comprising the decking was made; plaintiff simply assumed that the decking was made of wood.

The judgment entered on the fraud count is due to be reversed; and this Court renders a judgment for Nobility on the fraud count.

Ill

The last issue raised on this appeal concerns the trial court’s award of attorney’s fees and costs to Rollin Homes against Nobility. Nobility correctly points out that the federal Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(2), under which the award was made, applies only for the benefit of consumers and does not affect the relationship between manufacturers and retailers. Nevertheless, the error here complained of was harmless because the benefit of the award inured in fact to the Ballen-tines, the consumers in this case, and not to Rollin Homes.

The trial court awarded fees and costs to the Ballentines against Rollin Homes, in the first instance, and then passed on this award to Rollin Homes against Nobility on the third-party complaint. The effect was to award fees and costs to the consumer against the manufacturer. Although the court technically erred in making the award through the retailer, the error was harmless and, thus, not reversible error, inasmuch as the court could have just as easily made the award directly to the plaintiffs on their complaint against Nobility. Therefore, this portion of the judgment below is due to be, and hereby is, affirmed.

AFFIRMED, IN PART; REVERSED, IN PART, AND RENDERED.

TORBERT, C. J., and MADDOX, FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.

JONES and SHORES, JJ., concur in part and dissent in part.

JONES, Justice

(concurring in part and dissenting in part):

I concur in each aspect of the majority opinion except that portion reversing the award of punitive damages based on the fraud, claim. For the purpose of clarity, it should be noted that the materiality of the alleged misrepresentation lies in the nature and character of the product sold. Plaintiffs purchased a doublewide mobile home composed of two units, which, when combined form a single dwelling. It is essential that the flooring material be of such strength that the floor of each component can be leveled, thus allowing the units to be tied together at the sides and roof.

The term “tongue and groove for added strength,” used in this context, denotes the very construction characteristic sought by the purchaser; and the jury could have reasonably inferred from the evidence that this representation was a material consideration in inducing the Plaintiffs to purchase the product. The floor, in fact (after repeated attempts by the retailer), could not be leveled so as to bring the two separate units into satisfactory alignment, thus accounting for a substantial number of Plaintiffs’ complaints.

Here, the jury could have reasonably inferred from the evidence that Nobility’s brochure, though literally true, was nevertheless misleading and, thus, a misrepresentation. Nobility’s mobile homes contained floors made up of interlocking particle board panels so that the description, “floor decking is %" tongue and groove for added strength,” was in fact accurate so far as it went. Plaintiffs’ expert witnesses, however, testified that the designation “tongue and groove” commonly refers to solid wood strips and would have suggested such to any consumer having some familiarity with building materials but not enough to realize that interlocking particle board panels might also be described as “tongue and groove.”

Furthermore, the suggestion that “tongue and groove” referred to solid wood, rather than particle board, was enhanced by the words contained in the brochure, “for added strength.” Here, too, the description was misleading though literally true as a statement of fact. Interlocking particle board panels having a width of six feet might provide greater support than the same panels without “tongue and groove” connections, but the jury was free to find, as a reasonable inference, that “for added strength” was intended to create, in the mind of the purchaser, the false impression that the subflooring was composed of solid wood tongue and groove boards, and that the purchaser, in reliance thereon, acted to his detriment in purchasing a mobile home of inferior quality.

Significantly, also, Nobility’s intracompa-ny documents specifically referred to its mobile home floor decking as “tongue and groove Novodeck panels.” The omission of the word “panels” from the company’s brochure suggests, or may imply, within the fact finder’s prerogative, that the misleading nature of the brochure was not in fact inadvertent. There was sufficient evidence, therefore, from which a jury could have found both the existence of fraud and the intent to defraud or deceive, thereby justifying the award of punitive damages.

Nobility’s brochure stated its mobile home flooring to be of tongue and groove (decking) for added strength. It failed to state, however, that the decking in fact was made up of particle board panels and not of solid wood boards. Due to the misleading nature of the description, the jury’s finding that such omission amounted to fraud, whether of the concealment or misrepresentation variety, is amply supported by the evidence. Section 6-5-102, Ala.Code 1975, expressly provides that the “[s]uppression of a material fact which the party is under an obligation to communicate constitutes fraud.” The statute goes on to state that the “obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” (Emphasis added.) Nobility’s brochure was accurate so far as it went; however, a finding that the misleading nature of the terminology, “tongue and groove for added strength,” obligated Nobility to go further and communicate additional facts was within the province of the jury in adjudging Nobility guilty of misrepresentation.

Ordinarily, there is little difficulty in distinguishing between fraud resulting from a false statement and fraud resulting from the suppression, or concealment, of some fact which ought to have been revealed. The distinction is somewhat more elusive in the case of a half-truth, such as exists in this case. A half-truth is defined, in general, as an assertion which is literally true so far as it goes but which would be materially qualified were additional facts brought out rather than concealed. See American Bonding Co. of Baltimore v. Fourth National Bank, 206 Ala. 639, 91 So. 480, 482-483 (1921), quoted in Jackson Company v. Faulkner, 55 Ala.App. 354, 315 So.2d 591, 599-600 (1975). See, also, First Virginia Bankshares v. Benson, 559 F.2d 1307 (5th Cir. 1977).

It is only through the assertion of certain selected facts that the other party is induced to act at all, but it is the concealment or suppression of other facts which induces him to act contrary to his interest. By definition, then, a fraud resulting from a half-truth consists of both the commission of an act and, at the same time, an omission. Assuming, therefore, that an action for fraud resulting from a half-truth is correctly analyzed under § 6-5-102 for suppression, rather than under § 6-5-101 for misrepresentation, Appellees’ failure to correctly classify the nature of the fraud committed is of no import. Appellant had notice from Appellees that fraud, generally, was being alleged and that the basis for that fraud lay in the misleading nature of Appellant’s brochure. As stated by the Court in Huntsville Dodge, Inc. v. Furnas :

“Where, with intent to deceive, a party to a contract conceals material facts which good faith requires him to declare or disclose, it is the equivalent of false misrepresentation and fraudulent concealment.” 361 So.2d 585, 588 (Ala.Civ.App.1978), citing Southern Land Development Co. v. Meyer, 230 Ala. 40, 159 So. 245 (1935).

To allow this type of literal truth to fall outside the ambit of misrepresentation contemplated by our fraud statutes is to place a premium on the craftiness of the drafter. For the reasons stated, I find no error in any of the trial Court’s rulings with respect to the fraud aspect of the case.

SHORES, J., concurs.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Ex parte CUMMINGS, GAZAWAY & SCOTT, INC., et al. In re John A. THAMES, Trustee of National Accounts Service Association, Inc. v. CUMMINGS, GAZAWAY & SCOTT, INC., A. J. Gazaway, Jr., et al.
    79-118.
    Supreme Court of Alabama.
    May 30, 1980.
    Rehearing Denied Aug. 8, 1980.

      Crawford S. McGivaren, Jr. and Vernon L. Wells, II, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for petitioners.
    D. Leon Ashford and John W. Haley of Noojin, Haley & Ashford, Birmingham, for respondents.
   FAULKNER, Justice.

A. J. Gazaway, Jr. and Cummings, Gaza-way & Scott, Inc., filed a petition for writ of mandamus requesting the Court to order the Lamar County Circuit Court to transfer this case from Lamar County to Madison County on the ground that venue in Lamar County is improper. We deny the petition.

John A. Thames, a resident of Jefferson County and acting as trustee of National Accounts Service Association, Inc. (NASA), filed suit against Cummings, Gazaway & Scott, Inc., A. J. Gazaway, Jr., Travelers Insurance Company (Travelers), Ernest C. McAlister, Joseph J. Rostan, Jr. and Charles J. Steen, claiming that they defrauded the creditors of NASA. According to the petition, NASA’s principal place of business was Madison County. A. J. Gazaway is a resident of Madison County. Cummings, Gazaway & Scott, Inc.; is an Alabama corporation with its principal place of business located in Madison County. Travelers is a foreign corporation, qualified to do business in Alabama, and was doing business by its agent in Lamar County at the time of the filing of this action. Ernest C. McAlister is a resident of Madison County. Joseph J. Rostan, Jr. and Charles J. Steen are residents of Mississippi.

On June 22,1979, pursuant to a pro tanto settlement between Travelers and Thames as trustee, the trial court entered an order dismissing Travelers. Gazaway and Cummings, Gazaway & Scott, Inc., then moved for a transfer of the case from Lamar County to Madison County, claiming that the only basis for venue in Lamar County had been destroyed by the dismissal of Travelers. Thames answered the motion, claiming that venue in Lamar County was still valid because defendant Rostan had entered a general appearance in Lamar County and had not contested venue, and that because venue as to Rostan was valid, venue as to the other defendants was also valid under Rule 82(c). The trial court denied the motion to transfer. This petition for writ of mandamus followed.

Petitioners contend that venue is improper in Lamar County since Travelers has been dismissed, on the basis that Travelers was the only defendant in the case which had any contact with Lamar County. However, Thames correctly submits that defendant Rostan, the Mississippi resident, entered a general appearance in Lamar County and did not contest venue. Service of process originated from Lamar County and was delivered by certified mail. Ros-tan accepted service. Since Rostan entered a general appearance, it is clear that Lamar County Circuit Court had jurisdiction over him. Cooper v. Watts, 280 Ala. 236, 191 So.2d 519 (1966).

We hold, in addition, that venue as to defendant Rostan was proper. Rule 82(b)(2) of the Alabama Rules of Civil Procedure provides:

(b) Venue of actions.
* sf: * sf: *
(2) Against Nonresident Individuals. Actions against nonresident individuals may be brought in any county of the state where such nonresident is found, or in the county where the subject of the action or portion of the same was when the claim for relief arose or the act on which the action is founded occurred or was to be performed.

The Committee Comments to Rule 82(b)(2) make it clear that “any county where [such nonresident] is found” comprehends both counties where the nonresident is physically present, and counties “where he enters an appearance.” This is consistent with the common law venue rule in effect prior to the adoption of the Alabama Rules of Civil Procedure as to actions at law against nonresident defendants.

Notwithstanding, petitioners insist that Rule 82(b)(2) was intended to change the venue law in Alabama as to nonresident individuals, and limited proper venue in such circumstances to those counties where the nonresident can be physically found and personally served, or where the cause of action arose. Because the instances are rare when a nonresident defendant is physically present within the state, such a construction would have the effect, in most cases, of limiting venue to that county where the cause of action arose. Limitation of venue in such a manner would not only ignore the stated purpose of the Rule, but would also unjustifiably discriminate between resident and nonresident individual defendants.

According to the Committee Comments, which were considered by this Court in adopting the final draft of the Rules, Rule 82 was intended to facilitate the merger of law and equity by providing a uniform rule of venue for all actions, whether traditionally brought at law or in equity. The Rule reconciled existing statutes and rules by incorporating “the more liberal provision as to venue in any particular situation.” The common law rule of venue as to actions at law against nonresident defendants (who were not covered by the general venue statute regarding actions at law against individuals, Code 1940, Title 7, § 54) allowed suit to be brought against nonresident individuals in any county in the state. Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126 (1916), Conner v. Wiliet, 265 Ala. 319, 91 So.2d 225 (1956). In actions seeking equitable relief, however, Code 1940, Title 7, § 294, required that the action be brought “in the county where the subject of the suit or any portion of the same, is when the cause of action arose, or the act on which the suit is founded was to be performed.” Because the common law rule is the more liberal of these two, it is clearly that which was intended to be adopted by the Rule.

Further, adoption of the construction urged on us by petitioners would allow a nonresident defendant, not present in the state, to force a plaintiff to bring suit only in the county where the cause of action arose; where a defendant was a resident of the state, however, a plaintiff would retain a choice between the county where the defendant resides, and the county where the cause of action arose. We fail to discern any justification for such a distinction. As stated in Conner v. Willet, supra, a case cited by the Committee Comments as stating the correct rule, “If we limit the plaintiff to suing the nonresident in the county where the injury occurred, we are discriminating against our own residents.” For these reasons, we hold that venue as to defendant Rostan was proper.

We now turn to the question of whether venue as to the other defendants was also proper. Rule 82(c) provides:

(c) Venue Where Claim or Parties Joined. Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13,14, 22 and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties. [Emphasis added.]

By operation of this rule, joinder of the other defendants is proper. Venue would not be proper as to the petitioners had there been no nonresident defendants in this case. Rule 82(b)(1). However, regardless of venue requirements, multiple defendants may be joined as ancillary to the plaintiff’s cause of action. Rule 82(c). Cf. Harrelson v. Gowin, 348 So.2d 789 (Ala.Civ.App. 1977), where the Alabama Court of Civil Appeals construed Rule 82(c) to allow joinder of multiple claims in one circuit even though venue as to each individual claim rested in different circuits. We therefore hold that the trial court, did not err in denying petitioners’ motion to transfer. The petition for writ of mandamus is accordingly denied.

WRIT DENIED.

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

TORBERT, C. J., dissents.

BLOODWORTH, J., not sitting.

TORBERT, Chief Justice

(dissenting).

The holding of the majority results in a rule of law never intended by our statutes, case law or Rules of Civil Procedure. Additionally, this holding is contrary to sound public policy. The majority holds that in a multi-party action against both residents and individual nonresidents of this state, venue would be proper in any county of the state.

Our case law has long applied the rule of law allowing legal actions of a transitory nature against nonresident individuals to be brought and maintained in any county within the state if the nonresident is personally served with process. Smith v. Gibson, 83 Ala. 284, 3 So. 321 (1887); Steen v. Swadley, 126 Ala. 616, 28 So. 620 (1899); Lee, pro ami v. Baird, 139 Ala. 526, 36 So. 720 (1903); Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126 (1916); Conner v. Willet, 265 Ala. 319, 91 So.2d 225 (1956). The rationale of this rule is clear:

The general rule is, that every country has jurisdiction over all persons found within its territorial limits, for the purposes of actions in- their nature transitory. It is not a debatable question, that such actions may be maintained in any jurisdiction in which the defendant may be found, and is legally served with process.

Smith v. Gibson, 83 Ala. 284 at 285, 3 So. 321 (1887).

But the statute makes no provision as to venue in transitory actions against nonresidents. By coming here, however transiently, defendants have submitted themselves to the jurisdiction which every state exercises over all persons within its limits in respect to matters purely personal, which, in contemplation of law, have no locality; and we apprehend there is no good reason why they should have the benefit of a personal privilege of mere convenience which the statute has conferred only upon persons having a permanent residence in this state.

Jefferson County Savings Bank v. Carland, 195 Ala. 279 at 282, 71 So. 126 (1916).

The cases which established the above rule of law did not involve a suit against both a nonresident individual and a resident of this state, the former having no venue privilege, but the latter being protected by statute as to the proper court authorized to entertain an action. This Court is now confronted with a case in which both a nonresident individual and a resident are joined as defendants. It is conceded by all, that but for the joinder of the defendant Rostan, a nonresident, venue would not be proper in Lamar County.

The majority reasons that venue is proper in Lamar County because (1) Rostan, a nonresident defendant (served by certified mail) entered a general appearance, (2) Ros-tan did not contest venue, (3) the term “found” in Rule 82(b)(2) comprehends both physical presence in the county or the entering of the general appearance. The majority then concludes that venue, being valid as to one defendant, is thus proper as to all. ARCP, 82(c); Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala. 1978).

Both petitioners and respondent discuss the effect of the “changes” in our venue law intended by the adoption of the Rules of Civil Procedure, specifically Rule 82(b)(2). Both the Constitution and the statutes of Alabama provide that our Rules “shall not . . . affect the jurisdiction of circuit and district courts or venue of actions therein.” Section 6.11, Amendment 328, Constitution of Alabama of 1901; Code 1975, § 12-2-7(4) (emphasis supplied). Therefore, the only legal effect of the Rules of Civil Procedure is simply to set forth, and perhaps clarify, the statutes and case law of this state as to venue.

The fact that the nonresident defendant entered a general appearance and did not contest venue has no effect on the personal right of petitioners to claim the benefit of our venue law. If one defendant waives his venue objection, this does not waive any objections to venue his co-defendants may have. 15 Wright, Miller & Cooper, Federal Practice and Procedure, (1976), § 3829, at 192-193; Ex parte Central of Georgia Ry. Company, 243 Ala. 508, 10 So.2d 746 (1942); and W. S. Fowler Rental Equipment Company v. Skipper, 276 Ala. 593, 165 So.2d 375 (1965). “The privilege, which a resident of this state has, of being sued in the county of his permanent residence, is personal to him.” Jefferson County Savings Bank v. Carland, 195 Ala. 279 at 282, 71 So. 126, 282 (1916).

Our law which established venue of transitory actions against nonresident individuals was based upon personal service in this state; therefore, the use of the word “found” in Rule 82(b)(2) must be construed to mean “personally served” in this state. To hold otherwise would make meaningless the last clause of Rule 82(b)(2) which authorized actions to be brought “in the county where the subject of the action or portion of the same was when the claim for relief arose or the act on which the action is founded occurred or was to be performed.” The majority would rewrite the Rule to say: “Actions against nonresident individuals may be brought in any county of the state.” This is not the rule at all.

The majority would have us believe that the adoption of petitioners’ views would discriminate against our own residents. Quite to the contrary, the holding in this case discriminates against Alabama residents. Except for the joinder of a nonresident individual defendant, petitioners would have the right to cause this action to be transferred to the county of their residence. The holding in the instant case is now authority for a nonresident plaintiff to bring any legal cause of action against numerous residents of our state in any county selected by the nonresident plaintiff if there be one nonresident individual joined as a party defendant. Our case law did not contemplate this result, nor do I believe this Court intended this result when it adopted the Alabama Rules of Civil Procedure.

Jurisdiction is the power of the court to entertain a cause of action. Venue, as distinguished for jurisdiction, relates to the court in which, for the sake of convenience or policy, the cause should be tried. Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974). It is my opinion that the correct rule is that “One who resides in the state is not to be denied the right to be sued in the county wherein he resides by being joined with a defendant who is not a resident of the state, although the venue is proper as to such person.” 92 C.J.S. Venue § 100 at 809 (1955).

This Court has been presented with a venue question where one foreign corporate defendant was entitled to a change of venue and the other defendants were not. Hodges v. General Shale Products Corporation, 346 So.2d 416 (Ala. 1977). This Court, reversing an order abating the action as to the defendant objecting to improper venue, pointed out two alternatives other than dismissal — transfer of the case as to all defendants, or transfer of the case as to the defendant as to whom venue was improper.

I would grant the writ and order the case transferred to the proper county based upon the venue rights of our residents.


author: BEATTY, Justice.

text:
    Mary E. CARVER v. METROBANK.
    79-111.
    Supreme Court of Alabama.
    June 13, 1980.
    Rehearing Denied Aug. 8, 1980.
    Charles A. J. Beavers, Jr., of Odom, May & DeBuys, Birmingham, and Lipscomb & Lipscomb, Bessemer, for appellant.
    William A. Scott, Jr., of McDaniel, Hall, Parsons & Conerly, Birmingham, and Norman K. Brown, Bessemer, for appellee.
   BEATTY, Justice.

Affirmed on the authority of Hinrichs v. Tranquilaire Hospital, Ala., 352 So.2d 1130 (1977) and Martin v. Tapley, Ala., 360 So.2d 708 (1978).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

JONES, J., dissents.


author: SENTELL, Clerk.

text:
    OPINION OF the CLERK, Supreme Court of Alabama.
    No. 28.
    Supreme Court of Alabama.
    Aug. 1, 1980.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FEES FOR MISCELLANEOUS FILINGS— CONTEMPT PROCEEDINGS FOR FAILURE OF PARTY TO ANSWER INTERROGATORIES

Mr. M. D. Murphy, Circuit Clerk of Henry County, has asked me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code 1975, the following:

Should a filing fee be paid at the time of filing a proceeding for contempt and the signing of the order, where a party is seeking an order requiring an opposing party to appear and show cause why he should not be held in contempt for failure to answer interrogatories?

It is my opinion that the question should be answered in the affirmative.

Rule 7, Alabama Rules of Judicial Administration, — Fees for Miscellaneous Filings— as applied to contempt proceedings has been interpreted in several opinions. See Opinion of the Clerk, No. 25, March 12, 1980, Ala., 381 So.2d 58.

The factor for determining whether a filing fee should be paid in contempt proceedings is not whether the petition is filed prior or subsequent to the final judgment in the main case but whether the alleged contempt is direct or indirect. Opinion of the Clerk, No. 17, October 3, 1978, Ala., 363 So.2d 97.

A contempt is indirect when all the facts necessary to constitute the contempt are not in the personal knowledge of the judge. Opinion of the Clerk, No. 21, September 27, 1979, Ala., 375 So.2d 1067.

A proceeding for indirect contempt should be treated as a separate and independent case. Opinion of the Clerk, No. 3, May 4, 1977, Ala., 345 So.2d 1338.

A filing fee should be paid in proceedings for indirect contempt. Opinion of the Clerk, No. 21.

When an attorney, seeking an order for indirect contempt, submits the petition directly to the judge and obtains an order for the alleged contemnor to show cause, the filing fee may be paid at the time of filing the order, together with the petition, in the office of the clerk. Opinion 21.

Rule 33(a), Alabama Rules of Civil Procedure, reads as follows:

(a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.

Rule 37(a), Alabama Rules of Civil Procedure, states the procedure for compelling an answer if a party fails to answer an interrogatory submitted under Rule 33.

Any contempt for failing to obey an order to answer interrogatories filed by an opposing party is an indirect contempt. See In Re Tarpley, 293 Ala. 137, 141, 300 So.2d 409, 413 (1974); International Brotherhood of Electrical Workers, et al. v. Davis Constructors and Engineers, Inc., et al., Ala., 334 So.2d 892, 895 (1976); Tetter v. State, Ala., 358 So.2d 1046 (1978).

It is my opinion that in a proceeding for contempt for failure to file interrogatories the filing fee should be paid at the time of filing the petition or, if the petition is submitted directly to the judge, at the time the order, together with the petition, is filed in the office of the clerk.


text:
    OPINION OF THE CLERK,
    No. 29.
    Supreme Court of Alabama.
    Aug. 8, 1980.
   SENTELL, Clerk.

RULE 40(A), ALABAMA RULES OF JUDICIAL ADMINISTRATION — APPLICABILITY TO COURT REPORTER’S FEE FOR TRANSCRIPTS

Mr. Melvin G. Cooper, Executive Director of the State Ethics Commission, has submitted to me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code 1975, the following inquiries:

1. Does Rule 40(A), Alabama Rules of Judicial Administration, apply to the official grand jury reporter for the Fifteenth Circuit of Alabama in preparing transcripts of testimony before the grand jury on request of attorneys representing grand jury witnesses?
2. May court reporters employed by the state retain as personal income the fees provided in Rule 40(A) for the preparation of transcripts and copies of the original?
3. If so, are such court reporters permitted to use state time, equipment and materials for this purpose?

The first question is answered in the negative.

The second question is answered in the affirmative.

The third question is not answered.

The first paragraph of Rule 40(A) reads, in part, as follows:

“Pursuant to the authority and responsibility of section 12-17-276, Code of Alabama, all court reporters shall be allowed a fee of $1.65 for the preparation of the original impression only for each page of the transcript of the proceeding .

The second paragraph of Rule 40(A) reads:

“Fees for copies will be allowed at a rate of 10 cents per page for each copy of the original impression.”

I

The information submitted with the first question shows that the office of Official Grand Jury Reporter for the grand juries of the counties comprising the Fifteenth Judicial Circuit was created by Act No. 705, Acts of Alabama, 1978. The act provides that the official Grand Jury Reporter shall be appointed by, and serve at the pleasure of, the district attorney elected for the circuit.

Section 4 of the act reads, in part, as follows:

“When directed by the elected District Attorney for such Circuit, the Official Grand Jury Reporter shall attend, in person, except as otherwise provided, the sessions of each Grand Jury held in such circuit and . . . shall take full stenographic notes of the oral testimony and proceedings . . . ”

Rule 40(A), Alabama Rules of Judicial Administration, was adopted by the Supreme Court pursuant to § 12-17-276, Code 1975, which reads as follows:

“Notwithstanding any statutes existing on October 10, 1975, which prescribed fees to be paid to court reporters for producing transcripts of their stenographic notes, the amounts of these fees may be fixed and adjusted by the supreme court at such time as it shall determine.”

Rule 40(A) fixes and adjusts only those fees which were prescribed for court reporters in statutes existing on October 10, 1975. If statutes existing on October 10, 1975, did not prescribe fees to be paid for transcripts of grand jury proceedings, such fees are not fixed or adjusted by Rule 40(A).

Statutes existing on October 10, 1975, which prescribed fees to be paid to court reporters for producing transcripts of their stenographic notes, were Title 7, § 827(2), (Act No. 80, Acts of Alabama, 1953, Section 4) and Title 13, § 263, Code of Alabama, Recompiled 1958.

Title 7, § 827(2), prescribed a fee for preparing transcripts on appeal of “causes tried.” See Title 7, § 827(1), Code, Recompiled 1958.

The proceedings of a grand jury are not a trial. Adams v. State, Ind., 17 N.E.2d 84, 118 A.L.R. 1095 (1938). See also Berness v. State, 263 Ala. 641, 646, 83 So.2d 613 (1955).

Title 13, § 263, Code, Recompiled 1958, excepts proceedings before the grand jury from its coverage.

Rule 40(A) does not prescribe or adjust fees for the preparation of transcripts of grand jury proceedings.

II

Rule 40(A), pursuant to § 12-17-276, Code 1975, fixes and adjusts fees “to be paid to court reporters.”

The first paragraph of Rule 40(A) provides that “all court reporters shall be allowed a fee . . . The second paragraph reads: “Fees for copies will be allowed . . .

A definition of “allow,” pertinent to the context of Rule 40(A), is: “to give or assign as a share or suitable amount (as of time or money) to a particular person or for a particular purpose.” Webster’s Third New International Dictionary (1976).

It is my opinion that court reporters may retain as personal income the fees provided by Rule 40(A) for preparation of transcripts and copies of original transcripts.

III

The third question is not answered for the reason that it is not within the limits of the authority granted to the Clerk of the Supreme Court by § 12-2-19, Code 1975, which provides that “The clerk of the supreme court shall give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the supreme court to any other officer or official of the state who shows a need for such opinion and requests the same.” There is no rule of administration, promulgated by the Supreme Court, dealing with the matters presented in the third question.


text:
    Nathan O. RALEY et al. v. ROYAL INSURANCE COMPANY LIMITED et al.
    79-18.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    James M. Prestwood of Prestwood & Prestwood, Andalusia, for appellants.
    Griffin Sikes of Tipler, Fuller & Sikes, Andalusia, for appellees.
   FAULKNER, Justice.

The Raleys appeal from a summary judgment in a suit brought by them against Royal Insurance, and Royal Globe for conversion. We reverse.

May 21, 1975, the Raleys executed a mortgage to the Covington County Bank on Lot 20, Conecuh Subdivision, that secured a promissory note for $11,859.12. Meanwhile, on April 14, 1975, Mr. Raley executed an installment note to the Bank of $1,247.40, secured by a 1974 Chevrolet pick-up truck. On or about August 24, a fire destroyed the Raley dwelling situated on the mortgaged property. The dwelling and its contents were insured, as required by the terms of the mortgage, with Royal Globe Insurance Company. The loss payee under the policy was the Bank. Royal Globe investigated the fire loss, and took the position that it was not liable. The Raleys’ suit filed on January 15, 1976, against Royal Globe in the Circuit Court of Covington County was transferred to the United States District Court, Middle District of Alabama, where the case was tried on October 14. A jury awarded the Raleys the whole amount sued for less living expenses. However, the jury, on direction of the trial judge, deducted $9,143.23 from the verdict. This deduction resulted from Royal Globe’s representation that it had paid the Bank as mortgagee, and was therefore entitled to a credit against the award to the Raleys.

The record shows that, instead of Royal Globe paying off the Raleys’ mortgage, it had the Bank transfer the mortgage to Royal Globe by giving the Bank a check dated August 23, 1976, for $9,143.23. The mortgage transfer, signed by the Bank’s Vice-President, J. T. Kirkland was dated August 23. The mortgage was not satisfied of record until May 3, 1978.

Now, as far as the pick-up truck is concerned, it does not appear that it was involved in the Federal Court suit, yet Mrs. Raley stated by affidavit that the amount due on the truck was also deducted from their jury verdict. A former agent of Royal Globe stated by affidavit, that his Company did not receive the truck note. But, Mr. Raley testified that Royal Globe, the insurer of the truck, took possession of it. As an aside, it appears that the pick-up had been involved in a wreck, and was a total loss. We are not shown whether any insurance proceeds were paid to the Raleys for loss of the truck.

The Raleys allege in their complaint that Royal Globe converted to its own use $9,143.23 — property belonging to them. Royal Globe answers, in effect, that it paid off the mortgage to the Bank, therefore, there has been no conversion. But, Royal Globe did not pay off the mortgage, and extinguish the debt before the Federal Court suit. On the contrary, it had the mortgage transferred to it. Therefore, at the time of the suit, Royal Globe had not paid any loss resulting from the fire. It had merely placed itself in the Bank’s position as mortgagee. For aught that appears, Royal Globe could have demanded mortgage payments from the Raleys. Even though it did not demand payments on the mortgage, Royal Globe still had the legal title to the Raleys’ property.

In Ott v. Fox, 362 So.2d 836 (Ala.1978), this Court stated that a wrongful conversion constituted a wrongful taking, wrongful detention or interference, or illegal assumption of ownership, or illegal use or misuse. See also Webb v. Dickson, 276 Ala. 553, 165 So.2d 103 (1964). In our opinion, when Royal Globe had possession of the mortgage, and failed to have it satisfied for almost two years, it was interfering with Raley’s right of possession of his property, and was thereby guilty of conversion. Ra-ley either had a right to the full amount of the jury award or the right to have the mortgage satisfied. The fact that the mortgage was eventually satisfied does not correct the evil done.

We hold that summary judgment was improper here. Our cases, since the adoption of the Rules of Civil Procedure, are legion that summary judgment is only appropriate where it appears that the non-moving party could not prevail under any set of discernible circumstances. Whitehead v. Danison Oil Co., Inc., 352 So.2d 1339 (Ala.1977). Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975).

REVERSED and REMANDED.

JONES, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

Plaintiffs below claim defendants converted $9143.23, the property of plaintiffs, and further claim punitive damages on the basis that defendants “knowingly and fraudulently” converted plaintiffs’ money. The underlying facts of this case are unusual, and the cause of action for conversion of money upon such facts is novel.

The case law of Alabama establishing the essential requisites for the maintenance of a cause of action in conversion has long been firmly established. There are four different actions which constitute conversion: (1) A wrongful taking; (2) an illegal assumption of ownership; (3) an illegal use or misuse; and (4) a wrongful detention. Only the fourth action requires proof that the plaintiff demanded the return of the converted property and that the defendant refused that return.

It is believed that all conversions may be divided into four distinct classes.
1. By a wrongful taking;
2. By an illegal assumption of ownership;
3. By an illegal user or misuser; and
4. by a wrongful detention — Bull.N.P. 44; 2 Saund. 47, E.
In the first three named classes, there is no necessity for a demand and refusal, as the evidence arising from the acts of the defendants, is sufficient to prove the conversion. In the latter class alone, is such evidence to be required, as the mere detention of a chattel furnishes no evidence of a disposition to convert it to the holder’s use, or to divest the true owner of his property.

Glaze v. M’million, 7 Port. 279, 281-82 (1838) (emphasis added). See also, Claybrooke Warehouse and Gin Company v. Farmers Cooperative Warehouse and Gin Company, 260 Ala. 518, 71 So.2d 88 (1954).

The building insured by defendant, Royal Globe, burned, and Royal Globe paid the mortgagee bank, as loss payee under the plaintiffs’ fire insurance policy, the sum of $9143.23, representing the balance of the indebtedness owed by plaintiffs to the bank. In turn, Royal Globe took an assignment of the bank’s note and mortgage, apparently for the reason that Royal Globe denied liability to plaintiffs under the insurance contract. The bank did not satisfy the mortgage of record, having transferred ownership to Royal Globe.

In the federal court action by plaintiffs against defendants on the insurance contract, plaintiffs recovered for their fire loss, and the $9143.23 paid by Royal Globe to mortgagee bank was deducted from the jury verdict against Royal Globe. Until the jury determined that the insurance company’s defense on the policy was without merit, the insurance company was entitled to take an assignment of the mortgage from the mortgagee bank, on the theory that if the jury determined Royal Globe was not liable on its policy, Royal Globe would be entitled to some security for the money which it paid on behalf of the plaintiffs to the bank. Therefore, because the “taking” of an assignment of the mortgage by Royal Globe was not wrongful, the only possible category of conversion into which Royal Globe’s actions could fall is the fourth category listed above, i. e., wrongful detention.

In the recent case of Tenneco Oil Company v. Clevenger, 363 So.2d 316 (Ala.Civ.App. 1978), the Court of Civil Appeals recognized that the statutory penalty for failure of a mortgagee to satisfy a mortgage (Code 1975, § 35-10-30) is penal in nature and therefore not the exclusive remedy to recover damages against a mortgagee. The Court of Civil Appeals held there is a field of operation for a civil cause of action for damages on behalf of a mortgagor based upon the wrongful failure of the mortgagee to satisfy his mortgage.

Inasmuch as the statute is penal and not remedial, the penalty is not in lieu of compensatory damages suffered by the mortgagor and resulting from the mortgagee’s wrongful failure to exonerate. When, as here, the mortgagor pleads and proves damages quite apart from the penalty arising from the fact of failing to discharge the statutory duty to exonerate, the mortgagor is not precluded from asserting other theories to recover his damages.

Tenneco Oil Company v. Clevenger, 363 So.2d 316, 318 (Ala.Civ.App.1978).

Although the remedy provided by § 35-10-30 is not exclusive, in order to maintain a cause of action in conversion for detention, plaintiffs must prove that they demanded the return of the converted property. See, Glaze v. M’million, supra, Claybrooke Warehouse, supra. There is evidence in the record to the effect that Mr. Raley made several trips to the bank , to obtain information on whether his mortgage had been exonerated or assigned and, if assigned, to whom. “[However,] a demand, to be effective, must be made on the person who has the actual possession or control of the property claimed, who is obligated to surrender it, and who has the power to deliver it up, if he would.” 89 C.J.S. Trover and Conversion § 58 (1955). In the instant case, though the Covington County Bank was the mortgagee of record, evidence in the record shows that the mortgage was transferred to Royal Globe, which, as the assignee of the mortgagee, became the true owner of the mortgage. The question determinative of this appeal is whether a sufficient demand was made on Royal Globe for the return of the $9143.23 which the Company took as a credit against the Raleys’ judgment, or whether a sufficient demand was made for the return of the mortgage marked “paid.”

It is necessary to distinguish the type of demand contemplated in Code 1975, § 35-10-30, the statutory penalty for a mortgagee’s wrongful failure to exonerate, from that type of demand essential for the maintenance of a compensatory common law action in conversion for wrongful detention. In order for a mortgagee to be subject to the imposition of the statutory penalty for wrongful failure to exonerate, the mortgagor must have requested in writing the satisfaction of his mortgage. Code 1975, § 35-10-29. The legislature chose the stringent requirement of a written request as a precondition to imposing the statutory penalty, but conversion is not dependent upon statute. “[Cjonversion had its real genesis in the old common law action of trover.” W. Prosser, Handbook on The Law of Torts § 15 (4th ed. 1971). A demand need not be in writing to give rise to a compensatory common law cause of action for wrongful detention.

There is no particular formality required in making a demand for the return of property. Thus, efforts of the plaintiff to remove the property, and acts of the defendant preventing such removal may be sufficient to constitute a demand and refusal.

18 Am.Jur.2d Conversion § 64 (1965).

“No formal words are required to constitute a demand, whether it is oral or in writing, but it should be a request for present delivery of the property, and must be clothed in absolute unequivocal terms.” 89 C.J.S. Trover and Conversion § 58 (1955).

The record is replete with evidence, including letters and depositions, which raises a genuine issue of fact whether the Raleys demanded from Royal Globe the return of their mortgage and note marked “paid.” It was error for the trial court to enter summary judgment for the defendants when a genuine issue of material fact was raised as to whether or not a sufficient demand was made upon the Royal Globe Insurance Company for surrender of the mortgage marked “paid.”

If the factfinder determines that the Ra-leys did demand that Royal Globe surrender their mortgage marked “paid,” then the question of damages arises.

The rule is settled by the decisions of this court, that the measure of damages in actions of trover is the value of the goods at the time of the conversion, or at any time subsequent thereto and before the trial, with interest on such value.
This rule we think a correct one, and we feel no disposition to depart from it; but it is only applicable to those cases where the owner had not regained possession of the goods before the trial. If the owner has regained the possession of the goods, he cannot recover their value, and is only entitled to the damages he has sustained by the wrongful deprivation of his possession, and such damages should be commensurate with the injury. If the chattel has been injured, he is entitled to compensation for such injury; and as he has been deprived of the use and service of the chattel, his damages should be commensurate with the value of the use or service, otherwise this action would be inadequate or incapable of doing complete justice. The hire or value of the service of the chattel must, in such cases, be one of the criteria by which the damages are to be ascertained.
We also think that the plaintiff may retake his goods, if he can do so without committing a breach of the peace; and having this right, if he is put to expense, necessary and reasonable, to regain possession, (otherwise than by suit at law), he may recover such expenses from the wrongdoer; for it was his wrongful act that induced the expenditure of the money, and there is no injustice in holding him liable for it.

Ewing v. Blount, 20 Ala. 694 (1852) (emphasis added) (citations omitted). See also, Mitchell v. Corbin, 91 Ala. 599, 8 So. 810 (1890); Roebuck Auto Sales, Inc. v. Wallace, 293 Ala. 231, 301 So.2d 546 (1974).

Plaintiffs’ complaint also seeks punitive damages based on their allegation that Royal Globe “knowingly and fraudulently” converted the $9143.23. “[I]f evidence is presented to the jury which shows that a party has converted property in known violation of the owner’s rights and in violation of the law, punitive damages may be assessed.” Gunite Contracting Co. Inc, v. Mize, 341 So.2d 694 (Ala.1977); Roy Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975).

If the plaintiffs can prove no actual losses resulting directly from the mortgagee’s wrongful failure to exonerate their mortgage and the plaintiffs can prove no conduct of such a nature which would give rise to exemplary damages, then any award the plaintiffs receive should be limited to nominal damages.

      . Plaintiff may recover expenses incurred in regaining possession other than attorney’s fees. Electric Lighting Co. v. Rust, 131 Ala. 484, 31 So. 486 (1901); 89 C.J.S. Trover and Conversion §§ 174, 175 (1955).


author: JONES, Justice.

text:
    STATE of Alabama v. Lee Ella ALLEN.
    79-163.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Maurice F. Bishop, Birmingham, Robert A. MaCrory, Montgomery, Kenneth Cooper, Bay Minette, for appellant.
    Lloyd E. Taylor and Sam W. Irby of Taylor, Benton, Irby & Gibson, Fairhope, for appellee.
   JONES, Justice.

This suit to quiet title to land in the Gulf Coast area of the State comes before this Court on appeal by Plaintiff State of Alabama. Title to land resulting from littoral accretion is disputed. A recital of the rather complicated facts will not be given here because we find that the cause must be remanded for jury trial for reasons expressed herein.

Demand for jury trial in this case was made initially in February, 1962, by the State. The case was docketed as a jury case. Motion for reference to a Master was made by the State on October 7, 1976. No waiver of the right to jury trial was made in this motion. In December, 1978, while the case was under submission to the Master, the case was transferred from the jury to the nonjury docket without explanation in the record for this change. On June 7, 1979, after the Master’s Report was completed, the State filed objections and exceptions and renewed its jury demand, saying:

“Reference to a Master under Rule 53(e) [ARCP] even with the affirmative consent of the parties is not a waiver of jury trial, and the parties may present to the jury any other evidence they desire and are free to call witnesses who were heard by the Master.”

Appellee’s motion to strike this jury demand was granted by the trial Court. We must reverse this holding and remand the cause for jury trial. Appellant’s interpretation of Rule 53 is correct. ARCP 53(e)(3); see, also, Committee Comments, Rule 53(e). Despite Appellee’s contention that the State affirmatively waived its right to a jury trial at a pretrial hearing, we find no evidence of such waiver in the record, and, without such support in the record, Appellant cannot be deprived of its right to a jury trial.

This cause is hereby remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON, EMBRY and BEATTY, JJ., concur.

BLOODWORTH, FAULKNER and SHORES, JJ., not sitting.


author: WRIGHT, Presiding Judge.

text:
    William E. FURLOW v. Mary G. FURLOW.
    Civ. 2064.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied May 14, 1980.

      Edward B. McDermott and Constance S. Aune of McDermott, Deas & Boone, Mobile, for appellant.
    Julian L. McPhillips, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married thirty-six years. They had three children, all of whom are of legal age and self-supporting. The parties owned various articles of personal property, and three lots (Lots 2, 3, and 4) in Jackson Oaks Sub-division where they made their home.

The trial court’s decree dated March 12, 1979, divorced the parties on the ground of incompatibility and made a division of their real and personal property. The wife was given all of Lot 2 including the residence and one-half of Lot 3. The husband was given all of Lot 4 and the remaining half of Lot 3. The wife assumed responsibility for the mortgage on Lot 2 and the husband was ordered to pay the mortgage payment for Lots 3 and 4. If the husband failed to make the mortgage payment on Lots 3 and 4, the wife was given the right to pay the overdue payment. The payment becomes a lien against the property to the extent of the payment. In the event the wife decides to sell her half of Lot 3, the husband must obtain a release from the mortgage for this portion of the lot. The decree also made a division of personal property.

On March 20, 1979, the trial court, at the request of both parties, amended the provision of the decree granting a water line easement to the husband across Lot 2 to include a water line easement across the wife’s half of Lot 3.

On April 20, 1979, in response to the wife’s motion to alter or amend the decree, the trial court amended the decree to grant an easement for ingress and egress over the property’s existing driveway which crossed all three lots.

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

The husband argues that the trial court’s division of property is so disproportionate as to constitute an abuse of discretion. A division of property in a divorce decree need not be equal, but must be equitable according to the circumstances. Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979). We do not find the division in this instance to be inequitable.

The husband’s remaining issue concerns the provisions in the decree dealing with payment of the mortgages on the three subdivision lots. He contends that the trial court committed reversible error in requiring him to pay the mortgage on the wife’s half of Lot 3, in ordering him to obtain a release of the mortgage in the event she decides to sell her half of Lot 3, and in granting the wife the right to pay the mortgage on Lots 3 and 4. The husband argues that these provisions of the decree burdened him with excessive liabilities and granted the wife excessive control over the property awarded to him. We do not agree. Clearly, the purpose of these provisions is to give the wife the right to protect the property awarded to her from a foreclosure of the mortgage which covers Lots 3 and 4. The husband can keep his property free of any interest of the wife simply by paying the mortgage payments. If he fails to do so and the wife must make the payments to protect her interest in Lot 3, a lien on the property in the amount of the payment is a reasonable method of insuring repayment. A court of equity in a divorce case has the power to use any reasonable means to effect a just property settlement and adjust the equities between the parties. Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978). The provisions of this decree concerning the mortgage payments were matters within the discretion of the trial court and we find no abuse of that discretion.

The husband’s request for attorney’s fee on appeal is denied. The wife’s request for attorney’s fee on appeal is granted in the amount of $500.

The wife’s request that the court award damages for a frivolous appeal is denied.

The trial court’s decree is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex Parte William E. FURLOW. In re William E. FURLOW v. Mary G. FURLOW.
    79-676.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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