author: EMBRY, Justice.

text:
    John R. SCHOTTLAND et al. v. Wilbur J. LUCAS et al.
    79-610.
    Supreme Court of Alabama.
    March 26, 1981.
    Alfred M. Naff and John D. Quenelle of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellants.
    Samuel Maples and Douglas Corretti of Corretti, Newsom & Rogers, Birmingham, for appellees.
   EMBRY, Justice.

Defendants, John and Mary Ann Schott-land, appeal from a final judgment which ordered them to specifically perform a contract for the purchase of a house from plaintiffs, Wilbur J. Lucas, Jr., and Janis E. Lucas. Plaintiffs, sellers, sought specific performance of the contract alleging they were ready, willing and able to perform in accordance with the contract but the defendants refused to close the sale.

The Schottlands denied that the contract was enforceable, on the basis that contract provisions that the property be conveyed free of encumbrances and that the contract was subject to the Schottland’s securing a conventional loan of up to 90% of the sales price of the property had not been fulfilled. The trial court, after hearing the evidence ore tenus, concluded that the Schottlands never formally sought a conventional loan of 90% of the purchase price. The trial court also found the Schottlands to be es-topped from asserting as a defense the existence of recorded subdivision restrictions, utility easements, a sewer agreement and building line restrictions, because they had waived the provision in the sales contract that the property be conveyed “free of all encumbrances” as it applied to those items.

In this appeal the Schottlands raise three issues: (1) Whether they waived and frustrated the condition in the sales contract pertaining to financing; (2) whether they are estopped from raising or have waived their objections to the alleged title defects; and (3) whether the trial court erred in ordering specific performance of the contract.

In the summer of 1979 the Lucases offered their home at 3733 River Oaks Circle, Mountain Brook, Alabama, for sale through a real estate broker. In late July 1979 Dr. Schottland, who had accepted employment in Jefferson County and was in the process of moving his family and residence from Longview, Washington, to Mountain Brook, Alabama, inspected the home and offered to purchase it. Dr. and Mrs. Schottland executed a real estate sales contract wherein they agreed to purchase the house from the Lucases for $112,500; $4,000 earnest money and $108,500 cash on closing.

The sales contract described the property as “Lot 7, River Oaks, 1st Sector, Map Book 81, Page 18; otherwise known as 3733 River Oaks Circle.” It provided that the property was to be “conveyed subject to any mineral and mining rights not owned by the undersigned seller and subject to the present zoning classification residential .. ..” No mention was made in the contract of restrictions, easements or encumbrances affecting fee simple title to the property; instead the sellers agreed “to convey said property by general warranty deed free of all encumbrances,” except those set out in the contract and the sellers and purchasers agreed “that any encumbrances not herein excepted or assumed may be cleared at time of closing from sales proceeds.”

The contract was “subject to purchasers securing a conventional loan up to 90% of the sales price.” Purchasers were to take possession and pay $800 per month rent from the date of possession until the date of closing. The sale of the Lucases’ house was to be closed within seven days of the closing of the Schottlands’ house and lot in Long-view, Washington, but in no event later than 27 November 1979.

Prior to entering inte the contract with the Lucases, Dr. Schottland, on 17 July 1979, made a preliminary application for a $90,000 residential mortgage loan from the Jackson Company. The loan application contained a financial statement which listed the value of the Schottlands’ Washington property at $132,900 subject to a mortgage securing a debt in the principal amount of approximately $80,000. On 24 September 1979 a Jackson Company loan officer provided the Schottlands with an estimate of loan charges and expenses for a $90,000 mortgage loan and indicated that the company was willing to extend a loan in that amount on the Lucas house. Rather than borrow this amount from the Jackson Company under the terms and conditions required by it, Dr. Schottland decided to seek an 80% loan because the interest rates were cheaper. The trial court found this to be the case as a matter of fact.

The Schottlands took possession of the Lucas house on 28 August 1979, pursuant to a lease agreement contained in the contract for sale. On 21 September, the Schottlands agreed to sell their house and lot in Washington for $102,000; approximately $30,000 less than the house was listed in his financial statement to the Jackson Company. On 17 October, Dr. Schottland refused to sign a Jackson Company formal loan application in substantially the same form as the 17 July preliminary application. The Schottlands then vacated the Lucas house on or about 22 October. The sale of the Schottlands’ Washington home was closed on 24 October 1979 and they received net proceeds of $6,871.74 from the sale. On 25 October Dr. Schottland submitted a revised financial statement to the Jackson Company showing his net worth at $220.

On 6 November, Dr. Schottland telephoned the loan officer at the Jackson Company to inquire if the new financial information had been received and to ask why the company had not declined the loan. The loan officer stated to Dr. Schottland that it appeared to him (the loan officer) that he (Dr. Schottland) was trying to get out of the loan and that the Jackson Company would neither approve nor disapprove the loan at that time. The trial court found that Dr. Schottland did not seek a 90% mortgage loan from any other lender; the only lender he contacted was the Jackson Company.

Although the contract provision that made it subject to the Schottlands’ securing a conventional loan up to 90% of the sales price is a valid condition precedent to performance by the Schottlands, there is an implied obligation that the purchasers attempt to obtain the requisite financing through the application of a reasonable, good faith effort. See Annot., 78 A.L.R.3d 880, 884 (1977) citing Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719 (1976) and Fry v. George Elkins Co., 162 Cal.App.2d 256, 327 P.2d 905 (1958). Under the facts of this case a reasonable inference can be drawn that the Schottlands did not make a reasonable good faith effort to secure financing but rather frustrated this condition. By their failure to actively seek financing the Schottlands waived that condition and will not be allowed to rely upon the nonoccurrence of that condition as a defense. Canyon Land Park, Inc. v. Riley, 575 F.2d 550 (5th Cir. 1978); Barnes v. Atlantic & Pacific Life Ins. Co. of America, 325 So.2d 143, 295 Ala. 149 (1975).

With regard to the Schottlands’ claims that the Lucases have both failed, and are unable, to transfer title free of encumbrances, we must consider the specific findings of the trial court. It found that the Schottlands’ refusal, or failure, to perform was the result of their not obtaining the price they desired from the sale of the house at Longview, Washington. This finding is substantiated by a letter from Dr. Schottland to the Lucases dated 8 November 1979, which stated adverse changes in his financial situation as the reason for his refusal to purchase the Lucas house. The Schottlands later sought to defend on the basis that the house could not be transferred free of all encumbrances; this is contradictory to Dr. Schottland’s earlier position.

When a purchaser refuses to accept a deed solely on the ground that he is not able to pay the purchase price he cannot afterward defend on the ground of a defect in title. 92 C.J.S. Vendor & Purchaser § 506 (1955). In this case the bona fides of the asserted defense that the title tendered did not conform to the requirements of the contract is, at best, dubious.

The Schottlands complain that the Lucas-es’ contract to sell the property failed to except any encumbrances, when in fact several encumbrances existed; therefore, the Lucases could not perform their obligation under the contract to convey the property free of all encumbrances. We need not address this issue because of what has been previously stated in this opinion which is dispositive of that contention.

Granting or denying relief by way of specific performance is a matter within the trial court’s sound judicial discretion, controlled by fixed rules and principles, in view of special features and incidents of each case. Montgomery v. Peddy, 355 So.2d 698 (Ala.1978); Wray v. Harris, 350 So.2d 409 (Ala.1977). Under the particular facts of this case, and the governing principles of law, we cannot say that the trial court abused its discretion in ordering the contract specifically performed.

Therefore, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ava Nora HOLLEY v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
    79-781.
    Supreme Court of Alabama.
    March 26, 1981.

      Johnnie B. Byrd, Jr. of Caffey & Byrd, Brewton, for appellant.
    Harold Albritton of Albrittons & Givhan, Andalusia, for appellee St. Paul Fire & Marine Ins. Co.
    A. Neil Hudgens and James P. Green of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee Service Master Industries, Inc.
   BEATTY, Justice.

Ava Holley, plaintiff, appeals from the grant of a motion to dismiss in favor of the defendants, St. Paul Fire & Marine Insurance Co. (St. Paul) and Service Master Industries, Inc. (Service Master). We reverse and remand.

This litigation commenced with Holley’s action filed on July 7, 1977 in which she claimed damages for personal injuries suffered in a fall which occurred on the premises of the Abernathy Memorial Hospital in Flomaton on August 10, 1976. Her original complaint named that hospital as defendant. That complaint was amended twice. In February 1980 the first amendment to the complaint was filed:

COUNT II
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the Defendant, Servicemaster Industries, Inc. wherein said Defendant was to maintain the lighting of the premises at Abernathy Hospital in Flomaton, Alabama. That in return for the consideration flowing from Escambia County Hospital Board said Defendant performed inspections of the premises for safety and maintained the lighting of the premises of Abernathy Hospital, Inc. in Flomaton, Alabama.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama due to negligent lighting and other defects in the .premises.
3. The Plaintiff, Ava Nora Holley, was third party beneficiary of the contractual relationship between the two defendants.
4. The Defendant Servicemaster Industries, Inc. breached its agreement with Escambia County Hospital Board directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Wherefore, Plaintiff demands judgment against Servicemaster Industries, Inc. in the sum of $500,000, interest and costs.
COUNT III
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the St. Paul Fire & Marine Insurance Company insuring said Escambia County Hospital Board. That as part of the consideration flowing from the above named insurance company to the Escambia County Hospital Board said insurance company performed inspections of the premises for safety.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama.
3. The Plaintiff, Ava Nora Holley, was a third party beneficiary of the contractual relationship between the two Defendants.
4. The defendant insurance company breached its agreement with Escambia County Hospital Board directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.

Service Master moved to dismiss Count II of the first-amended complaint:

1. Said count fails to state a cause of action against this defendant upon which the relief prayed for can be granted.
2. Said count fails to allege sufficient facts to show the existence of any contractual relationship whereby the plaintiff would be a third party beneficiary.
3. Said count alleges this defendant breached its agreement with Escambia County Hospital Board but fails to allege the manner of such breach.
4.It affirmatively appears from the allegations of said count that the claim attempted to be stated against this defendant is barred by the one year statute of limitations.

St. Paul moved to dismiss Count III of the first-amended complaint:

1. Said Count fails to state a claim against this defendant upon which relief may be granted.
2. Said Count alleges that this defendant breached an agreement with Escam-bia County Hospital Board, but fails to allege the manner of such breach.
3. It affirmatively appears from the allegations of said Count that the claim attempted to be stated against this defendant is barred by the statute of limitations of one year.

Later, in June 1980 these counts were amended again:

COUNT II
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the Defendant, Servicemaster Industries, Inc. wherein said Defendant promised to relamp lighting fixtures as necessary and/or to maintain a high quality of maintenance service by inspecting the premises at Abernathy Hospital in Flomaton, Alabama. That the Defendant breached its promises as set out above.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama as a proximate consequence of the breach of the contract maintenance.
3. The Plaintiff, Ava Nora Holley, was a third party beneficiary of the contractual relationship between the two Defendants.
4. The Defendant Ser vicemaster Industries, Inc. breached its agreement with Escambia County Hospital Board directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Wherefore, Plaintiff demands judgment against Servicemaster Industries, Inc. in the sum of $500,000, interest and costs.
COUNT III
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the St. Paul Fire & Marine Insurance Company insuring said Escambia County Hospital Board. That as part of the consideration flowing from the above named insurance company to the Escambia County Hospital Board said insurance company agreed expressly and/or implicitly to perform inspections of the premises for safety. That the conduct of the Defendant in making inspections prior to issuing the policy and in the years 1978 and 1979, but not in the year of the injury, coupled with the fact that the rate charged for the policy included specific charges for inspections as part of the premium, together created a contractual obligation or promise implied in fact on the part of the insurer to perform inspections. Further, the course of dealing with the parties, as well as, the usage of trade, imply a contractual obligation to inspect.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama.
3. The Plaintiff, Ava Nora Holley, was a third party beneficiary of the contractual relationship between the two Defendants.
4. The Defendant insurance company breached its agreement with Escambia County Hospital Board by not performing said inspections thereby directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Wherefore, Plaintiff demands judgment against St. Paul Fire & Marine Insurance Company in the sum of $500,-000, interest and costs.

Again, Service Master moved to dismiss the second-amended Count II:

1. Said count fails to state a cause of action against this defendant upon which the relief prayed for can be granted.
2. Said count fails to allege sufficient facts to show the existence of any contractual relationship whereby the plaintiff would be a third party beneficiary.
3. Said count alleges this defendant breached its agreement with Escambia County Hospital Board but fails to allege the manner of such breach.
4. It affirmatively appears from the allegations of said count that the claim attempted to be stated against this defendant is barred by the one year statute of limitations.

And St. Paul moved to dismiss the second-amended Count III:

1. Said Count fails to state a claim against this defendant upon which relief may be granted.
2. Said Count fails to allege sufficient facts to show the existence of any contractual relationship.
3. It affirmatively appears from the allegations of said Count that the claim attempted to be stated against this defendant is barred by the statute of limitations of one year.

After the trial court had granted the motions to dismiss the second-amended Counts II and III, the trial court entered the following order:

The Court having heretofore granted motions to dismiss filed by St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc. by order dated June 26, 1980 and it further appearing to the Court that there are still pending amended complaints against said Defendants, St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc., and it further appearing to the Court that said Defendants have reassigned their motions to dismiss as to said amended complaints and the Court being of the opinion that said motions to dismiss as reassigned to said amended complaints should be granted, it is accordingly,
ORDERED, ADJUDGED AND DECREED that the Amended Complaint filed on February 7,1980 against St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc. and the Second Amended Complaint filed on June 11, 1980 against St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc. be dismissed and the Motions to Dismiss filed by the Defendants herein are granted....

The trial court then made a Rule 54(b) determination, and the plaintiff appealed from the order granting the motions to dismiss.

Initially we must clarify the subject matter of our review because of the trial court’s order. That part of the order granting the motions to dismiss the first-amended complaint we consider as surplusage. It was not necessary for counsel to re-file motions to that amendment because it had been superseded by the second-amended complaint. That second-amended complaint was the only complaint before the trial court when it ruled on the motions to dismiss. As stated in 6 Wright and Miller, Federal Practice and Procedure, § 1476 at 389-390 (1971):

A pleading that has been amended under Rule 15(a) [cf. Rule 15(a), ARCP] supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case and any subsequent motion made by an opposing party should be directed at the amended pleading.

See also Zeigler v. Baker, Ala., 344 So.2d 761 (1977). We need not decide whether this rule would apply to prevent an appellate review of the grant of a motion to dismiss made before a subsequent amended complaint is filed.

In the instant case we take note that the plaintiff’s second amendment occurred before any action had been taken on any of the motions to dismiss, and thus the plaintiff substituted the second-amended complaint, in effect withdrawing the prior pleadings as to all matters not restated in the amended pleading. Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir. 1955).

Service Master maintains that Count II sounded in tort and thus was barred by the one-year statute of limitations. The plaintiff has alleged “a contractual relationship” between the Hospital Board and Service Master involving the latter’s promises to relamp lighting fixtures or to maintain “a high quality of maintenance service by inspecting the premises.” A breach of those promises is alleged to have proximately caused injury to the plaintiff as a third party beneficiary of the contract. According to Service Master, under its contract it only agreed to supervise and manage the maintenance of the hospital, and did not agree to perform this duty in a “reasonably safe or prudent manner.” The contract itself not requiring reasonable care in the performance of the duty allegedly breached, so its argument goes, any duty requiring reasonable care is a duty implied by law. This, states Service Master, makes the action one in tort, not contract.

In her allegations under Count II the plaintiff does not characterize Service Master’s conduct as a negligent failure, and we cannot so interpret it in reviewing the complaint under a motion to dismiss. Under those circumstances the allegations of the complaint are construed in a light most favorable to the plaintiff. Pruitt v. Pruitt, Ala., 343 So.2d 495 (1977). And such a motion can never be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim to entitle him to relief. Watwood v. R. R. Dawson Bridge Co., 293 Ala. 578, 307 So.2d 692 (1975). Although Service Master argues that the terms of its contract obligate it only to manage and supervise the housekeeping functions for the hospital, we cannot at this stage rule out the possibility that, under the allegations of Count II, plaintiff may be able to prove, inter alia, a negligent failure to perform that contract, express or implied in fact, to be such a breach as would entitle plaintiff to some damages. Cf. Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955) and Berry v. Druid City Hospital Board, Ala., 333 So.2d 796 (1976). That being so, the applicable statute of limitations would be six years, not one year. Code of Ala. 1975, § 6-2-34(4).

Service Master also argues that the plaintiff cannot recover under Count II as a third party beneficiary to the contract between it and the defendant hospital board.

One who seeks recovery in contract as a third-party beneficiary must establish that the contract was intended for his direct, as opposed to incidental, benefit. Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965). In that case and in Zeigler v. Blount Bros. Const. Co., Ala., 364 So.2d 1163 (1978) we looked to the complaints and to the surrounding circumstances of the parties to ascertain the existence of that direct benefit. In Zeigler, one of the parties was the Alabama Power Company which had contracted with Blount Brothers to have the latter construct a dam (which later failed) for the former on the Coosa River. The issue was whether Power Company rate-paying subscribers were third party beneficiaries of that contract. After examining the effect of this improvement upon the rate-fixing position of the Power Company vis-a-vis the Public Service Commission, we concluded that the Power Company in making the contract, was not directly concerned with the amount of money subscribers would be charged each month.

On the other hand, we arrived at a different conclusion in Harris v. Board of Water and Sewer Commissioners, 294 Ala. 606, 320 So.2d 624 (1975). That case involved a contract between the City of Mobile and the Board of Water and Sewer Commissioners under which the Board agreed with the City to provide, among other things, functioning fire hydrants. Harris, a motel and restaurant operator, suffered the loss of those properties because the City’s nearby fire hydrants failed to operate. In his action against the Board, Harris claimed the status of a third party beneficiary of the City’s contract with the Board. In agreement with that position, we wrote at 294 Ala. 611, 320 So.2d 624:

[I]n the end, the most direct benefit inures to the people of the City, like Harris, who rely on these city-provided services for the protection of their property.. .. This is not to say that the Board is an insurer against all fire losses, but it should be answerable to all those who are injured by its breach of the contract to supply water or its negligent maintenance of nonfunctioning fire hydrants where damage results proximately therefrom. .. .

Can there be any doubt that the hospital board does not make a maintenance contract for the direct benefit of the board members themselves? For whom does the board maintain the hospital? Obviously for those who will inhabit it for purposes of treatment, rehabilitation and cure. We may take judicial knowledge that visitors are not discouraged from using hospital facilities but, in fact, have physical hospital facilities provided for them. Thus they are expected to play a role in the scheme of patient hospitalization. Hospital maintenance, therefore, is necessary for their presence as it is for other expected occupants of hospital facilities, and the parties to a contract providing. such maintenance intend visitors to derive a direct benefit from the rendition of those services. In the application of third party beneficiary principles we perceive no fundamental difference between Harris and the instant case.

St. Paul contends that the plaintiff’s allegations in Count III properly were subject to attack by motion to dismiss because they were lacking in specificity, citing Berry, supra, at 801. That decision requires that “a complaint grounded in implied contract must state facts and circumstances — the acts and conduct of the parties from which the contract alleged can be inferred.” Tested by that requirement, the allegations of the implied contract and its breach met our approval, i. e., we found that the complaint did allege sufficient facts for the jury to find an implied contract and a breach of it.

We reach the same result in this case. Count III alleged: a contractual relationship between the hospital board and St. Paul insuring the hospital board; that part of the consideration supported St. Paul’s express or implied agreement to perform safety inspections; that St. Paul’s contract in performing inspections before issuing the policy and in 1978 and 1979, but not in the year of injury, together with the premium rate which included charges for inspections, created a contract implied in fact to perform the inspections. Comparison of these allegations with those contained in Berry compels the conclusion that these are at least as explicit as those in Berry, and so, against the attack of insufficiency they cannot fail. The case of Mann v. Highland Insurance, 461 F.2d 541 (5th Cir. 1972) cited to us for the proposition that insurance carriers who are allowed to have premium rates include an allowance for inspections nevertheless do not impliedly contract for such inspections, is inapposite. That case deals with workmen’s compensation insurance. We cannot conclude from the allegations before us that the contracts of insurance are alike or that the decision is analogous to this situation.

To St. Paul’s argument that this plaintiff cannot be a third party beneficiary of the insurance contract between St. Paul and the hospital board with respect to St. Paul’s alleged contractual duty to perform safety inspections for the board, we need only refer to our earlier discussion. Considering the circumstances, the allegations support an intention to have persons such as the plaintiff benefit directly from performance under the policy.

For the reasons expressed we conclude that it was error to grant these defendants’ motions to dismiss. The judgment, therefore, must be and is, reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

JONES and SHORES, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur in the result.


text:
    OPINION OF THE JUSTICES.
    No. 275.
    Supreme Court of Alabama.
    March 26, 1981.
   To the Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

This will acknowledge H.R. 57, and the subsequent resolution, H.R. 107, requesting our opinion as to the constitutionality of H.J.R. 56. H.R. 57 is not framed so as to question whether the proposed resolution H.J.R. 56 contravenes designated constitutional provisions, but H.R. 107 specifically seeks our opinion on whether H.J.R. 56 violates Ala.Const. art. IV, §§ 45, 61, 62 or 63:

HR. 107 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H.J.R. 56.
BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending resolution, H.J.R. 56, a copy of which is attached to this resolution and made a part hereof by reference:
1. Do the provisions of H.J.R. 56 violate Section 45 of the state constitution which reads in part: “No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.”?
2. Does H.J.R. 56 violate either section 61, 62 or 63, or any part thereof, of the state constitution?
RESOLVED FURTHER, That the Clerk of the House is hereby directed to send a sufficient number of true copies of the pending resolution, H.J.R. 56, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.

Since our advisory opinions are limited to questions on the constitutionality of pending legislation under stated sections of the Constitution, we must decline to answer the question propounded in H.R. 57. See, Opinion of the Justices, 294 Ala. 604, 320 So.2d 622 (1975). H.R. 107, however, is sufficiently specific to enable us to address the questions presented in that resolution.

In our opinion, H.J.R. 56 violates Ala. Const, art. IV, § 61, which requires that all laws be passed by bill. Since we opine that H.J.R. 56 is violative of § 61, we believe it unnecessary to discuss the applicability of Ala.Const. art. IV, §§ 45, 62 and 63, the constitutional provisions setting down the required content and form of bills and procedure for their passage.

H.J.R. 56, now pending, reads as follows:
H.J.R. 56 TO EXTEND THE PERIOD OF TIME FOR THE LEGAL OPERATION AND APPLICABILITY OF ACT NO. 80-738, S. 533, 1980 REGULAR SESSION, ALSO APPEARING AS SECTION 8-8-14, CODE OF ALABAMA, 1975, TO JULY 1, 1983.
WHEREAS, Enrolled Act No. 80-738, S. 533,1980 Regular Session (Act 1980, p. 1502), also appearing in substance as Section 8-8-14, Code of Alabama 1975, as such Act was enacted by the legislature and approved by the Governor, provides in Section 5 thereof that the provisions of said Act 80-738 shall terminate on July 1, 1981, unless continued by Act or resolution of the legislature; and
WHEREAS, the legislature now desires to extend the termination date to July 1, 1983; now therefore,
BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That the provisions of Act No. 80-738, S. 533, 1980 Regular Session (Acts 1980, p. 1503) (Section 8-8-14, Code of Alabama, 1975), shall remain in full force until July 1, 1983, and shall terminate on said date unless continued further by Act or resolution of the legislature.

The joint resolution seeks to extend until July 1, 1983, the operation of 1980 Ala. Act No. 80-738, (appearing substantially at Code 1975, § 8-8-14), which by its terms will expire on July 1, 1981, unless “continued by Act of the Legislature or joint resolution ....”

In Opinion of the Justices, 381 So.2d 183 (Ala.1980), we addressed an issue which we believe dispositive of the question here propounded. There a joint resolution was proposed to alter certain legislative procedures, i. e., the legislative order of business for the review of agencies under the “Sunset Law,” Code 1975, §§ 41-20-1 through -15. Since the order of business was prescribed by § 41-20-10, we viewed the resolution as an attempt to amend that statute. We found that an amendment must comport with the same constitutional requirements as an original statute, and, because Ala.Const. art. IV, § 61 provides “[n]o law shall be passed except by bill ...,” we stated that no law could be amended except by bill.

In the opinion we recognized the power of the legislature to adopt its own rules, not inconsistent with the Constitution. We said:

If the Joint Resolution dealt only with an internal rule of the legislature, not set forth in a state law, it would be a valid exercise of power. However, the Joint Resolution does not merely change a rule of procedure. In actuality, it amends a state law.

Id., 381 So.2d at 185.

The Constitution requires that laws be amended by bill, and the power of the legislature to adopt rules of procedure notwithstanding, a joint resolution cannot be used to amend a statute.

Likewise, H.J.R. 56 in effect seeks to amend a statute, because the resolution is an attempt to extend the term of a statute otherwise expiring. Since we have said the constitution requires that amendments be passed by bill, it is clear that a resolution of the legislature is ineffective to amend the provisions of Act 80-728, even though that act provides for a continuation of its terms by joint resolution. In order to accomplish the result sought by H.J.R. 56, a bill is required.

Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice

HUGH MADDOX,

JAMES H. FAULKNER,

RENEAU P. ALMON,

JANIE L. SHORES,

T. ERIC EMBRY,

SAM A. BEATTY,

OSCAR W. ADAMS, Jr., Associate Justices


author: MADDOX, Justice.

text:
    Elliott REED et al. v. James W. WALTERS et al.
    78-822.
    Supreme Court of Alabama.
    March 27, 1981.

      Richard O. Fant, Jr., Tuscaloosa, for appellants.
    Douglas Hendrix, Tuscaloosa, for appel-lees.
   MADDOX, Justice.

This is an appeal from a jury verdict in favor of the proponent in a will contest. The contest involved the will of Etta Clementine Maddox who resided in northwest Tuscaloosa County until her death on May 19, 1977.

In July, 1969, Mrs. Maddox executed a will leaving all of her estate to two nephews, James W. Walters and L. B. Hallman, share and share alike, and naming them co-executors. At the time the will was executed, Hallman had the authority to sign checks on an account opened by Mrs. Maddox at the Citizens Bank of Fayette. After they had a dispute, she removed Hall-man’s name from the checking account and named James W. Walters, the appellee, as the joint owner of the account with her. Further, Mrs. Maddox made Mrs. Walters, the appellee’s wife, a joint owner of a savings account opened by Mrs. Maddox in the First National Bank of Fayette.

At a later date, Mrs. Maddox informed her sister, Ethel Reed Cannon, that she had made a new will leaving her estate to James W. Walters. After the death of Mrs. Maddox, Walters removed certain items of furniture from the home of Mrs. Maddox, withdrew the balance in the checking account, and Mrs. Walters withdrew the balance of the savings account.

The second will of Mrs. Maddox, which left all of her estate to the appellee, was admitted to probate on October 18, 1977, and letters testamentary were issued to the appellee as executor of the estate. On March 15, 1978, the appellants filed a civil action in the Circuit Court of Tuscaloosa County and named the appellee and his wife as defendants. Mrs. Walters was later dismissed from the case, and the case was submitted to the jury, which was instructed to, and did, return a verdict in favor of the proponent, the appellee.

The appellants raise the following issues on appeal:

(1) Did the trial court err in refusing to allow a witness to testify concerning a conversation the witness allegedly had with the testatrix on the ground that allowing her to testify would violate Code 1975, § 12-21-163 (The Alabama Dead Man’s Statute);

(2) Did the trial court err in ruling as a matter of law that there was not a scintilla of evidence with respect to undue influence or a confidential relationship on the part of the appellee?

I

The issue involving application of the Dead Man’s Statute arose when the trial court sustained an objection to a question asked of the witness, Ethel Reed Cannon:

Q. All right. Let me ask you this. Did she make any statement to you concerning making a will?
A. Yeah. She said—
MR. HENDRIX: Now, we object, if Your Honor please.
THE COURT: State your grounds, Mr. Hendrix.
MR. HENDRIX: Well, of course, under the death statute, in other words, Mrs. Maddox is not here to review it. And this lady is one of the parties to this suit.
THE COURT: Sustain.

Mrs. Cannon was later permitted to testify, without objection, as follows:

Q. All right. And did you later find out that she had made a second will, and made it over to Mr. Jim Walters?
A. In ’77, I did.
Q. All right. And was that after the funeral or before?
A. That happened when?
Q. January 4, 1977.
A. ’77 is when I really learned she had made the will — she told me.
* * * * * *
Q. And what type of visit did you have on that occasion?
A. Well, she told me she had made the will.
* * * * * *
Q. Did she say anything about the will she had made to Jim Walters?
A. Not that day, no.
Q. Did she ever make a statement about the will she had made to Jim Walters?
A. Yeah, in our conversations, she would, along.
Q. What did she say about that?
A. She said they agreed to take care of her as long as she lived, and see that she did not want for anything.
Q. Did they promise her anything else? What other promises did they make?
A. They said if she needed somebody to stay with her, they would get it.
Q. All right. What was her summary? Did she say they were living up to their promises?
A. She said they had not been — They was supposed to come that Sunday evening, but they had not been in four days. And I said, “Well, you should call them and tell them that you are much worse than you have been being.” And she said, “They are supposed to come this evening.”
Q. And that is the last conversation you had with her?
A. That is the last conversation I had with her, yeah.
Q. That’s all.
* * * * * *
Q. Yes. And you say that she told you about going to make this last will?
A. She told me them and her had had the conversation, and she thought she would.
* * * * * *
Q. But she did at the time, say that she intended to go make a will, leaving things to Jim and Vista; right?
A. Provided they took care of her, yeah.

It is apparent that evidence similar to that excluded was later elicited from Mrs. Cannon; therefore, the trial court’s action in sustaining the objection to the appellants’ first attempt to elicit the testimony, even if error, was harmless error. Lawson v. Garrett, 286 Ala. 125, 237 So.2d 648 (1970); Decker v. Hayes, 282 Ala. 93, 209 So.2d 378 (1968); and Garrison v. Grayson, 284 Ala. 247, 224 So.2d 606 (1969).

II

Appellants’ second contention is that the trial court erred when it directed a verdict in favor of the proponent and instructed the jury to find for the proponent because the contestant had not shown by even a scintilla of evidence that a confidential relationship existed between Walters and Mrs. Maddox and that Walters exercised undue influence on Mrs. Maddox. ,

The scintilla rule applies in this state and a mere spark of evidence or an inference drawn from the evidence in support of the theory of the case against whom the affirmative charge is sought is sufficient to compel the denial of the affirmative charge. Smith v. Moore, 278 Ala. 173, 176 So.2d 868 (1965). In this case we must examine the evidence to determine whether there was, in fact, a scintilla of evidence on contestant’s theory of undue influence and the existence of a confidential relationship.

In order to support a challenge to a will based upon undue influence the contestant has the burden of showing:

(1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will.

Pruitt v. Pruitt, 343 So.2d 495 (Ala.1976). Further, in Pruitt, this Court stated:

Whether the beneficiary, or one acting for him, was the dominant party in the relationship between the two is usually a question of fact, but in any case there must be some evidence of controlling influence over the testator’s purposes by the other.

After an examination of the evidence presented by the contestant, we agree with the trial court that there was not a scintilla of evidence presented in support of the claim of undue influence. While there was evidence which might have supported speculation of undue influence, there was no evidence which would provide a reasonable inference. In Arrington v. Working Woman’s Home, 368 So.2d 851 (Ala.1979), this Court opined:

The scintilla rule is not satisfied by speculation. Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1957). Moreover, evidence to support undue influence must provide at least a reasonable inference, rather than mere suspicion. Locke v. Sparks, 263 Ala. 137, 81 So.2d 670 (1955).

To have found undue influence in the present case, the jury would have had to engage in speculation since there was no evidence presented showing undue influence; therefore, the contestant failed to meet his burden of proof. The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Robert WILKINSON, Am-Vets Post 65, Amer-Vet Athletics, Inc., Wayne O. Coats, and Peter L. Wilkinson v. STATE of Alabama, ex rel., Earl C. MORGAN as District Attorney, etc., Melvin Bailey, Sheriff of Jefferson County, Alabama and B. R. Myers, Police Chief of the City of Birmingham, Alabama.
    78-846.
    Supreme Court of Alabama.
    March 27, 1981.

      John Martin Galese of Galese & Chambers and R. Clifford Fulford and Max C. Pope of Fulford, Pope & Minisman, Birmingham, for appellants.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., Catherine S. Roberts and J. Terry McElheny of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellees;
   ALMON, Justice.

The State of Alabama sought and received a permanent injunction to abate an alleged gaming nuisance under the provisions of Code 1975, § 13-7-90, viz.:

All places maintained or resorted to for the purpose of gaming and all places where gaming tables or other gaming devices are kept for the purpose of permitting persons to game thereon or therewith are declared to be common nuisances and may be abated by writ of injunction issued out of a court upon a complaint filed in the name of the state by the attorney general or any district attorney whose duty requires him to prosecute criminal cases in behalf of the state in the county wherein the nuisance is maintained, ....

The State alleged that the conducting of bingo games by defendants constituted “gaming” within the purview of the statute. Defendant Gateway Malls, Inc., is the owner of the property on which the bingo games were played. The other defendants are the alleged operators of the games.

Defendants raised a defense of discriminatory enforcement, claiming other bingo operations and additional gambling activities were taking place with impunity in Jefferson County and throughout the state. They also filed counterclaims to enjoin the state from an alleged discriminatory enforcement of Code 1975, § 13-7-90. These were denied in the trial court’s decree granting the state a permanent injunction.

Appealing the injunction order, defendants raise several issues, primarily a contention of selective enforcement of Code 1975, § 13-7-90, in violation of equal protection under the law. However, we find it unnecessary to address these issues, as the decree of permanent injunction is due to be dissolved as a result of the repealing of the Code section on which it is premised.

Code 1975, § 13-7-90, was expressly repealed by the Alabama Legislature in its enactment of Title 13A of the Code, Alabama’s new criminal code. It was not a clerical error as appellees contend. The legislative act which enacts Title 13A contains a list of laws repealed by the legislature. Act No. 607, § 9901 (1977 Regular Session). This list specifically designates Code 1940, tit. 14, § 293 [current version at Code 1975, § 13-7-90] as a repealed statute. In addition, a table of repealed sections in an appendix to Title 13A specifically includes Code 1975, § 13-7-90. Appellees’ reliance on Lewis v. Hitt, 370 So.2d 1369 (Ala.1979), is misplaced. That case involved an assertion of an implied repeal of a portion of a statute as opposed to the express repeal involved here.

What effect does this express repeal of Code 1975, § 13-7-90, have on the permanent injunction decreed below? The effective date of Title 13A was January 1, 1980. Code 1975, § 13A-1-11. The proceedings below reached final judgment on July 24, 1979, prior to this effective date.

It is the general rule in Alabama that statutes are considered prospective unless their language shows that they were intended to be retrospective. Baker v. Baxley, 348 So.2d 468 (Ala.1977). In Saad v. Cline, 51 Ala.App. 668, 670, 288 So.2d 731 (1974), the Court of Civil Appeals said:

There can be no question that the effect of the repeal of a statute or part thereof is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed. [Emphasis added.]

Thus, a case which is tried and decided prior to the effective date of a code which repeals a former section on which that case relied is not affected by the repeal. Payne v. City of Birmingham, 30 Ala.App. 559, 10 So.2d 36 (1942).

However, unlike the “proceedings past and closed” referred to in Saad, the injunction is a continuing order over which a court, sitting in equity, maintains jurisdiction for the life of the decree. This Court recognized this peculiar nature of the injunction decree in Ex Parte Myers, 246 Ala. 460, 21 So.2d 113 (1945). There, this Court quoted, with approval, the California case, Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, 690 (1941), stating:

[T]he decree, although purporting on its face to be permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon proper showing, to modification or dissolution by the court which rendered it. The court’s power in this respect is an inherent one.

246 Ala. at 463, 21 So.2d 113.

Thus, the life of the injunction, by its very nature, is subject to pertinent events that occur subsequent to the decree. In the words of the Myers Court, “The injunction relates to matters of future continuous operation.” 246 Ala. at 464, 21 So.2d 113.

By this same reasoning, the saving clauses cited by appellees, Code 1975, §§ 13A-1-8 and -9, are inapplicable. They claim these clauses preserve their right to the injunction order. Such clauses are generally provided to continue in force a repealed law as to existing rights and pending actions. 1A J. Sutherland, Statutes and Statutory Construction, § 23.39 (4th ed. 1972). However, because of the inherent vulnerability of injunctions to changed circumstances, including changes in law, injunctions do not come within the purview of saving clauses.

The rule allowing the modification or dissolution of injunctions is recognized in most jurisdictions, viz.:

Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction, because no such vested right exists.

42 Am.Jur.2d, Injunctions, § 334 (1969) (emphasis added) (footnotes omitted).

We have recognized in Alabama that a change in law subsequent to an injunction decree and pending appeal may work a dissolution of the decree. Reynolds v. State, 279 Ala. 331, 185 So.2d 123 (1966). In Reynolds, the circuit court issued an injunction based on a finding that the Voting Rights Act of 1965 was unconstitutional. The order restrained a Judge of Probate from fulfilling the requirements of this Act. Pending appeal, the United States Supreme Court held the Act constitutional. Finding itself compelled to find the injunction dissolved, the Reynolds Court reasoned:

The injunction here is issued on the premise that the federal examiner provisions are unconstitutional and void. The Supreme Court of the United States holds to the contrary. The premise on which the injunction was issued is thus destroyed by the federal court.

279 Ala. at 333, 185 So.2d 123 (emphasis added).

Although Alabama has not addressed a change in law worked by legislative action in this context, other jurisdictions have found that an injunction based on a statute later repealed or changed to be subject to modification or dissolution. See cases collected in Annot. 136 A.L.R. 765 (1942).

The United States Supreme Court had an opportunity to address this question in System Federation No. 91, Railway Employes’ Department, AFL-CIO v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1960). The District Court had enjoined a railroad and some unions from discriminating against nonunion employees. Subsequently, the Railway Labor Act was amended to permit, under certain circumstances, a union shop. The Supreme Court held that the unions were entitled to a modification of the injunction decree, reasoning:

The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.... [T]he court cannot be required to disregard significant changes in law or facts if it is “satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.”

364 U.S. at 648, 81 S.Ct. at 371.

An Iowa case considers a situation similar to the case at bar. Johnston v. Kirkville Independent School Dist., 240 Iowa 1328, 39 N.W.2d 287 (1949). There, taxpayers successfully enjoined the local school district from exceeding the expenditure limits for student transportation set by statute. Pending an appeal of the injunction, the pertinent statute was repealed. The plaintiffs’ right to injunction was claimed on the basis of the repealed statute; the decree of injunction also relied on the statute. Finding the question involved to have become moot, the court stated: “It seems further to be conceded that this change in the law has in effect worked a dissolution of the injunction or in any event that defendants are no longer bound thereby.” 240 Iowa at 1329, 39 N.W.2d at 287. The court added that, should the plaintiffs attempt to enforce the injunction notwithstanding the change in the applicable law, the trial court might and should dissolve the injunction.

Appellees contend that the repeal of Code 1975, § 13-7-90, works merely a procedural change in the law and is thus not due the consideration given in the cases discussed above. We disagree. The repealed section declares as a matter of law that gambling places are a common nuisance. This Court recognized this in State v. Guardian Realty Co., 237 Ala. 201, 186 So. 168 (1939). After quoting Code 1923, § 4281 [current version at Code 1975, § 13-7-90], this Court stated: When the owner’s premises are put to the illegal use of a gambling resort, such premises, eo in-stante, become a public nuisance, and the nuisance may be abated by bill in equity.” 237 Ala. at 205, 186 So. 168. This Court went on to say that the owner’s lack of knowledge of the illegal use of his property had no bearing on his liability as the statute set no such requirement. In that case, as well as the instant one, the statute was the basis of the claim and controlled the proceeding.

The complaint in the instant case relies solely on the repealed statute for its cause of action. Likewise, the final decree of permanent injunction relies solely on Code 1975, § 13-7-90, for its finding of a nuisance. There are no independent claims or findings of a nuisance; remove the statute and the decree of injunction has no grounds for support. As in Reynolds v. State, the premise on which the injunction was issued has been destroyed.

Appellees also argue that even if Code 1975, § 13-7-90, was repealed, the court below still had authority to issue the decree, citing Try-Me Bottling Co. v. State, 235 Ala. 207, 178 So. 231 (1938). We agree that a court of equity may have the authority to enjoin a nuisance, even if it also constitutes a crime, in some circumstances.

Our decisions recognize the general rule that courts of equity have no jurisdiction to enjoin the commission of offenses against the criminal laws of the State. Pike County Dispensary v. Mayor, etc., Brundidge, 130 Ala. 193, 30 So. 451.
On the other hand, if the facts presented disclose the need of equity intervention for the protection of rights cognizable by equity, then injunctive relief may be granted, though as an incident thereto the writ may also restrain the commission of a crime.

Try-Me Bottling Co., 235 Ala. at 210, 178 So. 231 (Emphasis added).

However, that authority has not been established in the instant case. For instance, there are no findings here, as made in Try-Me, that the mere prosecution for a misdemeanor would not give complete relief. The Try-Me court was also concerned with the detrimental effect of the lottery scheme on children. Children were found to be rooting about in trash piles to find bottle caps with lucky numbers. Any such findings in the instant case were pretermitted by complete reliance on Code 1975, § 13-7— 90, to establish an enjoinable nuisance.

To hold appellants to a continuing order enjoining their bingo activities in light of the clear removal of the sole basis of that order, would turn the decree into “an instrument of wrong.” System Federation No. 91. The repeal of Code 1975, § 13-7— 90, leaves the order with no leg on which to stand. This is indeed a substantial change in circumstances justifying a dissolution of the order.

The learned trial judge has not had an opportunity to address the issue of statutory repeal because jurisdiction of this cause has been vested in this Court. Due to the unusual posture of this case, we have nevertheless addressed this issue because to do otherwise would only further delay the parties and waste judicial time. We think it proper under the circumstances to express our views and remand the cause so that the trial judge may dissolve the injunction.

We further note that, pending this appeal, bingo was legalized with some reservations in Jefferson County by Amendment 386 to the Constitution of Alabama, adopted by the electorate of this State on September 2, 1980. The amendment contains several criteria to be met by would-be bingo operators, such as the value of prizes awarded and the age of participants, before the operation is considered legal. Although the instant injunction order is due to be dissolved for the reasons previously discussed, we do not doubt that the parties will wish to pursue below the propriety of the appellants’ bingo operation under the new criteria set out in Amendment 386.

REMANDED WITH INSTRUCTIONS.

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


author: FAULKNER, Justice.

text:
    Mabel Elliott WIGGINS and Jessie B. Wiggins v. TUSCALOOSA WAREHOUSE GROCERIES, INC.
    79-582.
    Supreme Court of Alabama.
    March 27, 1981.
    Perry Hubbard, Tuscaloosa, for petitioners.
    McCoy Davidson, Tuscaloosa, for respondent.
   FAULKNER, Justice.

Mrs. Wiggins and her husband filed suit for damages against Tuscaloosa Warehouse Groceries for injuries suffered by Mrs. Wiggins resulting from a fall. The process papers were served on an assistant store manager on November 9, 1979. He submitted them to the manager, who notified the insurance carrier, and forwarded the papers to it. The carrier failed to forward them to its attorney within the 30-day answer period.

On December 11, the Wigginses applied for an entry of default, and requested the trial court to determine the amount of damages. On December 14, a default judgment was entered for them for $25,000.00. On January 9, 1980, Tuscaloosa Warehouse made its first appearance by filing a motion to set aside the default. The trial judge entered an order setting aside the default on March 10, and restored the case to the trial docket. Following this, the Wigginses, on April 11, moved to reconsider and to reinstate the default because, they allege, the judge lacked jurisdiction, and because Tuscaloosa Warehouse failed to show grounds warranting setting aside the default. This motion was denied on April 15.

Next, the Wigginses filed a petition for a writ of mandamus asking this Court to order the trial court to grant their motion for reconsideration, to strike its order setting aside the default, and to reinstate it. They further prayed for a writ of prohibition to prevent the trial court from exceeding its jurisdiction by considering the motion to set aside the default after thirty days had elapsed from entry of judgment, and by staying execution on the default judgment. We deny the petitions for writs of mandamus and prohibition.

Under Rule 55(c), ARCP, a trial court, in its discretion, may set aside a judgment by default within 30 days after its rendition. After 30 days has passed since the entry of the default judgment, Rule 60, ARCP, becomes available to a party who has had a default judgment entered against him. Under Rule 55(c), the defaulting party must have the trial court act to set aside the default within 30 days after the rendition of the judgment. Merely filing a motion to set aside the default without any action by the trial court within the 30-day period is not sufficient. This interpretation of the rule is in keeping with the decisions of this Court before adoption of the Rules of Civil Procedure. Cf. Kelley v. Chavis, 225 Ala. 218, 142 So. 423 (1932). In Kelley, Mr. Justice Foster stated,

It was not the duty of the Clerk to call the motion to the attention of the judge, but such duty is upon the movant. It is an absolute duty, and the failure to cause him to act on or continue it terminates the power of the court to act upon the motion.

See also Barton v. Burton Mfg. Co., 202 Ala. 180, 79 So. 664 (1918); Dulin v. Johnson, 216 Ala. 393, 113 So. 397 (1927). Here, Tuscaloosa Warehouse filed its motion 29 days after entry of the default judgment, but did nothing to have the trial judge to act — to set aside or to continue — within the 30 days time period. Consequently, under Rule 55(c), ARCP, the trial judge had no jurisdiction to set aside the judgment on March 10, 1980.

But, we have treated Tuscaloosa Warehouse’s motion as an ARCP, Rule 60(b) motion. And, in doing so, we find sufficient evidence to sustain the trial judge’s order denying the Wigginses’ motion to reconsider and reinstate the judgment.

At the hearing on Tuscaloosa Warehouse’s motion to set aside, Mr. Davidson, counsel for Tuscaloosa Warehouse, stated that the insurer, Travelers Insurance Company, had a new employee who did not recognize the significance of a summons and complaint, and did not tell his supervisor. Consequently, by the time Mr. Davidson received the documents, the answer period had expired. While this statement may not have been the true and proper form that it should have been, Mr. Davidson is an officer of the court, and we assume that it is a true statement. Without stating it, apparently the trial judge found excusable neglect, a ground in Rule 60(b)(1), which justified setting aside this default judgment. This is what the trial judge said:

THE COURT: Well, let me say this. It has been sort of the rule of “do it” around here, around this bar where opposing counsel, where opposing counsel are on what you might say pretty good terms, to deal with each other on a reasonably friendly basis. I mean I don’t ask for anybody to agree to anything, but I will be inclined where somebody comes in and says they have got a good defense to have their day in court.

We opine that the trial judge’s orders setting aside the default judgment, and denying the motions to reconsider and reinstate the judgment were correct.

THE PETITIONS FOR WRITS OF MANDAMUS AND PROHIBITION ARE DENIED.

JONES, ALMON, EMBRY and ADAMS, JJ., concur.


text:
    Alfred KITTRELL, Carl Kittrell, Martha Kittrell Harris, Mary Lee Hollinger et al. v. Fannie Mae BENJAMIN et al.
    79-785.
    Supreme Court of Alabama.
    March 27, 1981.

      Henry R. Sanders, Selma, and Michael A. Figures, Mobile, for appellants.
    T. M. Brantley of Brantley & Vargo, Bay Minette, for appellees.
   MADDOX, Justice.

On June 7, 1979, a complaint was filed by Fannie Mae Benjamin, Patricia Ann Thomas and Cornell Benjamin against other tenants in common seeking a sale for division of the Northwest one-quarter (NW Vi) of Section 22, Township 3 North, Range 3 East, situated in Baldwin County. Several tenants in common had varying percentages of ownership in the land. The plaintiffs each own approximately 8/no of the property, while one of the defendants, Willie Sheffield, owns approximately 83 percent of the property.

On June 25,1979, several defendants filed a general answer alleging that the subject land could be equitably divided. On July 23, 1979, certain defendants filed a motion to dismiss and also filed a request to purchase the plaintiffs’ interest in the property pursuant to Code 1975, § 35-6-100 (effective date July 17, 1979). This request was denied by virtue of the trial court’s final decree, although no specific mention of it was made.

On August 14,1979, the plaintiffs filed an amended complaint and on September 6, 1979, certain defendants filed an answer and as their first affirmative defense alleged that the statute on which the action was based, Code 1975, § 35-6-20, was unconstitutional. This argument was again raised at trial and rejected by the trial court. On June 4, 1980, the matter was called for trial and the court, after denying all of the plaintiffs’ motions, received testimony. On June 17, 1980, the trial court issued its decree finding that the land could not be equitably divided and ordering a sale for division.

There are three issues presented on appeal:

(1) Whether Code 1975, § 35-6-100, is applicable to the facts of this case inasmuch as the action was filed prior to the effective date of the statute;

(2) Whether the trial court denied the appellant-defendants due process and equal protection of the law by ordering a forced sale of the property pursuant to Code 1975, § 35-6-20;

(3) Whether the trial court, which heard the case ore tenus, should be reversed unless its judgment is clearly erroneous or unsupported by the evidence.

In considering the applicability of § 35-6-100, we note that the present action was filed prior to the effective date of that statute and that there is no provision for the retrospective application of § 35-6-100 within that statute.

The general rule is that retrospective application of a statute is not favored and legislative intent to make a statute retrospective must be clearly expressed before the statute will be construed to operate retrospectively. City of Brewton v. White’s Auto Store, Inc., 362 So.2d 226 (Ala.1978).

Since the legislature did not manifest an intent to have § 35-6-100 operate retrospectively, the essential question is whether a retrospective application of § 35-6-100 is required under the facts of this case.

As already stated, the complaint in the instant case was filed on June 7, 1979. The trial of the matter, however, was not had until June 4, 1980, and the trial court’s decree was not issued until June 17, 1980. The effective date of § 35-6-100 was July 17, 1979.

The problem presented in the instant case is that some of the pleadings had been filed prior to the effective date of the statute, but the case remained pending for nearly eleven months subsequent to the effective date of § 35-6-100.

It is clear that if a statute is procedural in nature, it may be applied on appeal even if the effective date of that statute occurred while the appeal was pending, and even if the effective date of the statute was after the judgment in the trial court. Smith v. Colpaek, 235 Ala. 518, 179 So. 520 (1938). It is equally clear that if a statute is substantive in nature and its effective date occurs after the judgment of the trial court, it may not be applied on appeal. Smith v. Colpaek; Jenkins v. Raulston, 214 Ala. 443, 108 So. 47 (1926).

We have been unable to find any case which addresses the precise question here, the effect of a statute which has an effective date subsequent to the filing of a complaint in the action in which its application is sought, but prior to the trial of and final adjudication of the issues. This Court’s decision in Brown v. Bateh, 362 So.2d 841 (Ala.1978), however, provides a useful analogy.

In Brown, there was a question raised concerning the applicability of a statute which reduced the redemptive period after a foreclosure on a mortgage from two years to one. The statute became effective after the execution of the mortgage, but prior to the foreclosure. The Court noted that the statute stated that the one-year period began to run from the date of sale. Thus, the date which was important in the determination of the applicability of the statute was the date of the foreclosure sale. Since that date was after the effective date of the statute, the statute was held to require no retrospective application and was applicable to that case.

Section 35-6-100 states:

Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not. [Emphasis supplied.]

Thus, under § 35-6-100, the date which is important in determining whether the statute requires an impermissible retrospective application or whether' it is applicable prospectively is the “date set for trial.” If § 35-6-100 was effective prior to the date set for trial and if the defendants’ request was made “not later than 10 days prior to the date set for trial,” § 35-6-100 should have been applied.

We are unable to determine from the record when the trial was originally set, although it is clear that trial was not actually held until June 4, 1980. We do note from the record that the publication of notice of the pending action gave the defendants until August 6,1979, to respond to the complaint before a default could be taken. August 6, 1979, appears to be the earliest possible date of trial and § 35-6-100 was clearly effective ten days prior to that date.

The defendants’ request to purchase the property was filed on July 23, 1979. This, too, was ten days prior to August 6, 1979. Therefore, the defendants’ request complied with the time requirements of § 35-6-100.

Since the effective date of § 35-6-100 was at least ten days prior to the earliest possible date on which trial could have been set and since the defendants’ request was filed at least ten days prior to that date, § 35-6-100 would be applicable in the present case. Therefore, the trial court erred in not applying § 35-6-100 and the judgment of the trial court in that regard is due to be reversed.

Appellants also contend that the application of § 35-6-20 denies them due process and equal protection of the law. We cannot agree, since the proceedings under § 35-6-20 require a judicial determination that the land cannot be equitably divided before there can be an order requiring a sale for division. This procedure clearly provides for all parties to have their “day in court.” Likewise, although § 35-6-20, prior to the addition of the procedure in § 35-6-100, appears to operate in a manner which would cause the unfortunate occurrence of the passing of title to a stranger, Ragland v. Walker, 387 So.2d 184 (Ala.1980), there appears to be no unequal application of that statute to any one particular class.

In Ragland, this Court hypothesized a classic example involving an estate and several joint owners, and discussed the operative effect of § 35-6-20 and § 35-6-100 when applied to that hypothetical situation. In this opinion, we will expand our discussion of the operative effect of § 35-6-100 especially, and we do this because we have been asked increasingly by parties, in partition cases which have been appealed, and by petitioners who seek supervisory writs in partition cases, to determine the constitutionality and operative effect of our current law in this field.

To facilitate our discussion of the procedure for partition or sale under current law, we use again another hypothetical fact situation.

A, B, C and D are joint owners or tenants in common (each owning an undivided Vi interest), of a tract of land containing 160 acres. A, proceeding under § 35-6-20, files a petition in which he avers that the 160 acres cannot be partitioned and agrees that it should be sold for division. C, in his answer to the petition, states that the land can be equitably partitioned, but he also notifies the court, not later than ten days prior to the date set for trial of the case, that he wants to purchase the interest of A, the petitioner, and that of B, who agrees to the sale. D files an answer in which he denies that the 160 acres cannot be equitably divided.

Under these hypothetical facts, A could obtain a partition of the land between him and B, C and D, as a matter of right, but A’s alternative right to have the land sold for division is statutory, and would be conditioned upon A’s averment and proof that the property could not be equitably divided or partitioned among them. Raper v. Belk, 276 Ala. 370, 162 So.2d 465 (1964).

C, provided he notified the court as required by § 35-6-100, could purchase A’s interest, because A was the petitioner; C also could purchase B’s interest, because B agreed to the sale asked for by A. The fact that C asked to be allowed to purchase the interests of A and B would not waive C’s right to insist on partition. Ragland v. Walker, supra.

If the trial court determined that the land could not be equitably partitioned, then the court, giving effect to C’s request to purchase under § 35-6-100, would follow the procedure provided for in § 35-6-101, § 35-6-102, and § 35-6-103:

§ 35-6-101. Appointment of appraisers; report.
In such circumstances as described in section § 35-6-100, and in the event the parties cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall approve, appointed for such purpose by the court. The appraisers or commissioners appointed under this section shall make their report in writing to the court within 30 days after their appointment. (Acts 1979, No. 79-334, p. 532, § 2.)
§ 35-6-102. Payment of appraised value into court; time period; transfer of title.
After the report of the appraisers or commissioners, the tenants in common or joint owners seeking to purchase the interests of those filing the petition shall have 30 days to pay into the court the price set as the value of those interests to be purchased. Upon such payment and approval of same by the court, the clerk shall execute and deliver or cause to be executed and delivered the proper instruments transferring title to the purchasers. (Acts 1979, No. 79-334, p. 532, § 3.)
§ 35-6-103. Effect of failure to pay purchase price.
Should the joint owners or tenants in common fail to pay the purchase price as provided in section 35-6-102, the court shall proceed according to its traditional practices in such cases as described in section 35-6 — 100. (Acts 1979, No. 79-334, p. 532, § 4.)

Because the value of a fractional interest in a larger tract, if sold separately, may be of lesser value than if the entire tract was sold, we determine that the words “the value of the interest or interests to be sold” in § 35-6-101 would be determined as follows: The appraisal would be of the entire tract, and the value of the interest to be sold would be determined proportionately, based upon the fractional ratio the interest to be sold bears to the property as a whole. For example, in the hypothetical, if C could not agree with A and B on the price of the interests of A and B, the appraisal would be of the entire tract. A’s undivided one-fourth interest would be one-fourth of that total value. B’s undivided one-fourth interest would be one-fourth of that total value. Assuming C paid A and B for their respective interests as provided by § 35-6-101, then C would own three-fourths of the interest in the tract, and D would own one-fourth. If either C or D, or their successors in interest, subsequently desired to file a partition proceeding, their rights would not be barred under principles of res judicata by reason of the adjudication made in the pending partition proceeding.

We find that the trial court here followed substantially the procedure we have outlined herein; therefore, we find no merit in the contention by the appellants that they were denied due process and equal protection of the law.

Because we reverse the judgment on other grounds, we do not discuss the issue of whether the judgment was supported by the evidence.

REVERSED AND REMANDED.

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


author: TORBERT, Chief Justice.

text:
    John T. WIGINGTON and Jimmy R. Cobb v. HILL-SOBERG COMPANY, INC., a corporation.
    79-818.
    Supreme Court of Alabama.
    March 27, 1981.

      Herbert P. Feibelman and William S. Shulman, Mobile, for appellants.
    Erling Riis, Jr. and Thomas E. Sharp, III of Vickers, Riis, Murray & Curran, Mobile, for appellee.
   TORBERT, Chief Justice.

Appellants, John T. Wigington and Jimmy R. Cobb, were employed by Hill-Soberg Company, Inc. (Hill-Soberg), as salesmen. They were each paid a base salary plus commission, which was premised on each salesman’s gross sales during the six-month periods ending June 30 and December 31 of each year. At the end of each six-month period, the commissions were computed. Each commission was equal to fifteen percent (15%) of the difference between (1) the gross profit (gross sales less the cost of the merchandise sold) from the salesman’s sales during the period, and (2) his salary for the same period. Each commission was thereafter paid to the salesman in six equal monthly installments at the end of each month for the following six months.

Both Wigington and Cobb were initially employed by Hill-Soberg pursuant to oral agreements. Subsequently, Hill-Soberg entered into a written agreement with Cobb on May 6, 1975, and entered into a similar agreement with Wigington on November 9, 1977. The contracts provided, in the part pertinent to this action, as follows:

Employee further agrees that upon termination of his employment, whether voluntarily or for cause, or for any reason, that employee shall be entitled to receive no commissions earned or accrued by him which have not been paid to him as of the date of the termination and employee waives any claim to or right to any commissions earned by him or accrued to his benefit but which have not been paid to him as of the date of the termination .... [Emphasis added.]

The employment of both Wigington and Cobb with Hill-Soberg was terminated on April 30, 1979, when Hill-Soberg sold all of its assets to All-Phase, Inc., and thus no longer had the need for employees. On September 24, 1979, Wigington and Cobb brought this action against Hill-Soberg to recover commissions earned but not paid prior to April 30. Hill-Soberg filed a motion for summary judgment based upon the above quoted contract provision and the trial judge granted the motion. On opposition to this motion, the plaintiffs produced affidavits from ■ each of themselves and from Preston Yonge, a former officer of Hill-Soberg who had signed the employment contracts in dispute here. Wigington, Cobb, and Yonge all swore in their respective affidavits that it was not their intent to deprive Wigington and Cobb of commissions earned but not paid if they were involuntarily terminated through no fault of their own.

Appellants contend that the words “or for any reason,” contained in the employment contract, render the contract ambiguous on its face. Therefore, they argue, the contract should have gone to the jury so that it could determine the proper meaning of the phrase. Appellants then set out nine propositions of law that deal with construction of ambiguous contracts.

Alabama law requires the trial court to determine whether a contract is ambiguous, and if it is not, to determine the force and effect of the terms of the contract as a matter of law. Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980); Universal Development Corp. v. Shader, 382 So.2d 1115 (Ala.1980); C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). Extrinsic evidence may be admitted to interpret a contract only if the trial judge finds as a matter of law that the contract is ambiguous. U. S. Fidelity & Guaranty Corp. v. Elba Wood Products, Inc., 337 So.2d 1305 (Ala.1976); Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973); Southern Ry. Co. v. Louisville & N.R. Co., 241 Ala. 691, 4 So.2d 400 (1941). The trial court in the present case determined that the contract was not ambiguous. Appellants have failed to show, at trial or on appeal, that the phrase “or for any reason” is ambiguous. For that reason, we must look to the clear meaning of the words used in the contract to ascertain the intent of the parties. Sisco v. Empiregas, Inc. of Belle Mina, 286 Ala. 72, 237 So.2d 463 (1970); Todd v. Devaney, 265 Ala. 486, 92 So.2d 24 (1957); Houlton v. Molton, 244 Ala. 88, 11 So.2d 850 (1942); Long v. Holden, 216 Ala. 81, 112 So. 444 (1927).

Looking to the definition of the disputed phrase, we fail to find any basis for setting aside the decision of the trial court. The courts of this state have not ruled on the meaning of the words “any reason.” The courts of our sister states Georgia and Texas, however, have made such rulings. The Court of Appeals of Georgia held, in Wright v. Stewart, 22 Ga.App. 655, 97 S.E. 193 (1918), that the words “any reason,” used there in a statute stating in pertinent part “if for any reason the business of the court cannot be disposed of in one day, such court may hold over from day to day,” meant for any reason whatsoever, whether related to court business or not. In Long v. State, 59 Ga.App. 389, 1 S.E.2d 32, 32 (1939), that same court held that “ ‘[a]ny reason’ ... does not mean a good reason or a valid reason.” The Court of Civil Appeals of Texas construed “any reason” in Hime v. City of Galveston, 268 S.W.2d 543 (Tex.Civ.App.1954). The Texas court held there that the words used in the phrase must be given their ordinary meaning. The ordinary meaning of “any” is “each,” “every,” or “all.” The contract we are concerned with here provided that the employee would not be entitled to commissions earned but not paid as of the date of termination of his employment, whether the employment was terminated voluntarily, for cause, or for any reason. If the phrase “for any reason” is to have any effect, its meaning must be different from both “voluntarily” and “for cause.” Otherwise, the phrase “for any reason” would be mere surplusage.

The plain language of the contract pertinent to this action clearly absolved Hill-So-berg from liability for commissions to be paid to the plaintiffs after their employment with Hill-Soberg was terminated. The trial court, therefore, did not err in granting Hill-Soberg’s motion for summary judgment, and we affirm.

AFFIRMED.

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


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 34.
    Supreme Court of Alabama.
    April 2, 1981.
   SENTELL, Clerk.

RULE 40, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FEES FOR TRANSCRIPTS PREPARED BY COURT REPORTERS

Mr. J. B. Vines, Circuit Clerk and Register, Bessemer Division, Tenth Judicial Circuit, has submitted to me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code of 1975, the following questions:

(1) What is the amount of the fee that may be charged by a court reporter for preparation of the original impression of each page of the transcript of proceedings on appeal to the Court of Civil Appeals?
(2) Is there a distinction between the charge permitted by an official court reporter and the charge permitted by a “roving court reporter” who is as- ' signed by the Office of Court Management to fill a temporary vacancy created by the absence of an official court reporter?

The answer to the first question is $1.65 for the preparation of the original impression for each page of the transcript and 10 cents per page for each copy of the original impression.

The answer to the second question is no.

I

Rule 40, Alabama Rules of Judicial Administration, provides that all court reporters shall be allowed a fee of $1.65 for the preparation of the original impression for each page of the reporter’s transcript and 10 cents per page for each copy of the original impression. This fee schedule is applicable not only to appeals to the Court of Civil Appeals but also to the Supreme Court and the Court of Criminal Appeals.

This rule was adopted by the Supreme Court pursuant to the provisions of § 12-17-276, Code of Alabama 1975, which reads:

Transcript Fees.
Notwithstanding any statutes existing on October 10, 1975, which prescribe 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 times as it shall determine.

Furthermore, the power to adopt this rule was granted by § 6.11 of the Judicial Article (Amendment 328 to the Constitution of Alabama of 1901) which provides, among other things, the following:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; ...”

II

The rate of $1.65 per page for the original impression and 10 cents for each copy of the transcript on appeal applies to “roving reporters.” Rule 40(A), Alabama Rules of Judicial Administration, specifically governs all court reporters. § 12-17-272, Code of Alabama, 1975, contains the following sentence:

“Transcript fees of special roving reporters and special reporters shall be paid at the rate set for court reporters, pursuant to section 12-17-276.”


author: EDWARD N. SCRUGGS, Retired Circuit Judge. EDWARD N. SCRUGGS, Retired Circuit Judge.

text:
    TUCKER MOTOR COMPANY, INC. v. Murray DAVENPORT.
    Civ. 2372.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1980.
    Rehearing Denied Jan. 7, 1981.

      William P. Gray, Jr. and Mary R. McKay of Tucker, Gray & Espy, Tuscaloosa, for appellant.
    Steven W. Ford of Ford, McElvy & Ford, Tuscaloosa, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The complaint, which was filed on December 28, 1978, sought damages for a breach of warranty in the sale of a truck, the primary allegation being that Tucker Motor Company (Tucker), the defendant seller, contrary to the contract, did not convey good title to the plaintiff purchaser (Davenport) and that, as a proximate result of such breach, Davenport lost the possession, title and use of the truck.

Third, fourth, fifth and sixth party defendants were added, which individuals and/or entities were alleged to be predecessors to Tucker in the truck’s chain of title. This built up a voluminous record, the clerk’s portion alone being over two hundred pages. What appears to be most complicated at first blush is simplified somewhat since the present appeal involves only the two original parties. In an attempt to separate the wheat from the chaff, the recital of facts shall be limited in scope so as to primarily touch those issues here decided.

In this case on January 19, 1979 and again on January 30, 1979, Davenport filed a motion stating that on October 11, 1978 the Tuscaloosa Police Department took the truck into their possession and refused to release it to him. He sought an order from the court for the release of the truck to him as the rightful owner. On February 1,1979 the State of Alabama, through an assistant district attorney, answered Davenport’s motion and filed a “counter motion” seeking to condemn the truck as contraband since its true identification numbers were obliterated so as to make scientific identification of the true identification numbers impossible and since false numbers had been substituted on the truck. The record fails to disclose that anyone was given a copy of the State’s motion. The record is silent as to notification of the trial date to any party, which trial was held on February 2, 1979 as to Davenport’s motion and as to the State’s motion. No record was made of the evidence presented at the trial. Admittedly, Tucker was not present in person or by attorney. On February 2, 1979 the trial court entered the following judgment:

The Court having heard the pleadings and evidence, it is hereby Ordered that the 1974 Ford Ranger XLT Pick-Up truck, Serial Number F10YLT10820, is contraband according to law, because said serial number is false and the true serial number has been obliterated and cannot be ascertained by scientific identification, making possession of such vehicle illegal under 32-8-86(c) and (d), Code of Alabama 1975. It is further ordered that said vehicle is forfeited to the City of Tuscaloosa for use by the Detective Division of the Tuscaloosa Police Department for law enforcement purposes, and further that the City of Tuscaloosa deliver said vehicle to the Sheriff of Tuscaloosa County, Alabama for destruction according to law when such use for law enforcement purposes has ended, and upon said destruction, said Sheriff of Tuscaloosa County is hereby ordered to submit a certificate of destruction of said contraband to the Clerk of this Court, at the cost of plaintiff.

On March 2,1979 Tucker moved the court to reconsider the condemnation of the truck because Tucker had had no notice of the filing of the State’s motion nor of such hearing. Tucker’s motion was overruled.

In September 1979, Davenport filed his motion for a summary judgment against Tucker alleging that, as a breach of warranty, Tucker sold the truck to Davenport but did not transfer good title to it, that the truck was contraband and that he was caused to forfeit and lose the possession of the truck. The only supporting evidence as to such averments was an attached copy of the February 2, 1979 condemnation judgment or references to such judgment. In short, the proof was inadequate except for the judgment or allegata pertaining thereto. The circuit court ordered that a summary judgment be granted as to Tucker’s liability to Davenport and that the amount of damages be determined by a jury.

On November 15, 1979 the court sent a memorandum to the six attorneys representing all parties that, “If and when the Plaintiff Davenport is paid in full and satisfied, then the other Defendants, Cross Plaintiffs, Cross Defendants, etc. may have their claims heard and ruled on.”

The court ordered that the case be first tried solely as to assessing Davenport’s damages against Tucker. The jury’s verdict on January 29, 1980 ascertained such damages at $4,200; and, on the same date, the following additional entry was made by the court on the case action summary, “Judgment accordingly herein in favor of plaintiff and against defendant and in the said sum of $4,200.00 in accordance with jury verdict herein.”

After numerous motions and rulings thereon as to the third, fourth, fifth and sixth party matters, on April 30, 1980 the court rendered the following judgment:

IT IS, FURTHER, ORDERED, ADJUDGED AND DECREED .by the Court that there is no just reason for delay in entering the judgment against Defendant Tucker Motor Company, Inc., in favor of Plaintiff Murray F. Davenport as a final judgment. The Court expressly directs the entry of this judgment as a final judgment on the issues, and the same hereby is entered as a final judgment on said issues.

Tucker filed its notice of appeal on June 10, 1980.

Motion to Dismiss the Appeal

Davenport contends that there was a severance of this case from the other actions, and that this appeal is untimely since the appeal should have been taken within forty-two days of the January 29, 1980 judgment. Hence, he argues that this appeal is due to be dismissed.

As we construe the record, the trial court ordered a separate trial under ARCP Rule 42(b) but not a severance under Rule 21. This finding is buttressed by the action of the circuit court in clearly making the judgment final as is authorized by Rule 54(b) on April 30, 1980. Tucker could not have appealed prior to that April judgment. Walker County Petroleum Council v. Walker County, 368 So.2d 862 (Ala.1979). The appeal in this case was timely. We overrule Davenport’s motion to dismiss the appeal.

Merits

We have researched and studied the appellate decisions of this state and have found no occasion where the condemnation or forfeiture of personal property has been allowed except in those limited instances when the legislature has permitted such proceedings to be instituted. Alabama’s Uniform Certificate of Title and Anti-theft Act, § 32-8-1 et seq., Code of Alabama 1975, makes it a crime to possess a vehicle knowing that an identification number of the vehicle has been removed or falsified. However, that legislative act fails to render such a vehicle contraband and no right is granted therein either to condemn it or for its forfeiture. Without proper statutory or constitutional authority, the power of government to condemn or to forfeit the private property of its citizens does not exist.

It was not decided in State v. One Ford XLT, 387 So.2d 219 (Ala.Civ.App.1980), that a right to condemn a vehicle bearing a falsified identification number had been granted by the legislature to the state, or any agency thereof. That opinion merely affirmed the decision by the circuit court that the evidence was inadequate to prove a violation of the statute. All other issues in that case were pretermitted.

We now specifically hold that a condemnation or forfeiture right does not exist as to vehicles knowingly possessed in violation of Alabama’s version of that uniform act. Jackson v. Evans, 379 So.2d 1236 (Ala.1980); Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975).

Since there was absolutely no statute which authorized either the condemnation or the forfeiture of the truck, the court lacked jurisdiction to render the February 2, 1979 condemnation judgment. That judgment was void upon its face and is subject to either direct or collateral attack.

“The presumption as to the validity does not, however, extend to a case where it appears from the record that the court was without jurisdiction of either the person or the subject-matter. If a want of jurisdiction appear on the face of the record, the judgment or decree is void and will be treated as a nullity, and is subject to collateral attack.” 15 R.C.L. § 358, p. 880.

Louisville & N. R. v. Tally, 203 Ala. 370, 83 So. 114 (1919); 13 Ala.Dig., Judgments, § 16.

The effect of a void judgment is enunciated in 46 Am.Jur.2d 347, Judgments, § 49 as follows:

A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based thereon.
Although it is not necessary to take any steps to have a void judgment reversed or vacated, it is open to attack or impeachment in any proceeding, direct or collateral, and at any time or place, at least where the invalidity appears upon the face of the record. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose.
In short, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It accordingly leaves the parties litigant in the same position they were in before the trial. [Footnotes omitted.]

Since the judgment is a nullity, we must ignore it and all references to it and reliances upon it in our consideration of the propriety of the action of the circuit court in partially granting Davenport’s motion for a summary judgment. Without the condemnation judgment, the foundation for the motion collapses for lack of a valid record to support the averments of the motion. The interlocutory summary judgment on the issue of liability should not have been rendered, which necessitates a reversal and remand of the case.

Even if the condemnation judgment were not void, a reversal would be required for failure to provide procedural due process to Tucker. As previously indicated, no notice was given to Tucker of the filing of the “Counter motion” by the State nor of the hearing which was held on February 2, 1979. That motion and its hearing were filed and held in a case wherein Tucker was an original party defendant. Tucker’s liability to Davenport was largely decided without Tucker having the opportunity to participate in the trial thereon. This results in constitutional due process error.

Other issues vigorously argued by the parties are nonessential for decision in view of the above.

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

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

EDWARD N. SCRUGGS, Retired Circuit Judge.

In his application for a rehearing, Mr. Davenport has indicated a possible ambiguity in our original opinion in this case. We desire to make it clear that several exhibits, including the condemnation judgment, were attached to his motion for a summary judgment. However, if the judgment condemning the truck and all other reliances upon it or references to it in the other exhibits are removed from consideration, the totality of the remainder is inadequate for the rendition of a summary judgment.

OPINION EXTENDED. REHEARING DENIED.

All the Judges concur.


text:
    Ex parte Murray DAVENPORT. (Re TUCKER MOTOR COMPANY, INC. v. Murray DAVENPORT).
    80-268.
    Supreme Court of Alabama.
    March 27, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.