author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    BLUE CROSS-BLUE SHIELD OF ALABAMA v. Timothy R. CAUDLE.
    Civ. 2672.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Rehearing Denied Sept. 16, 1981.

      Clark Carpenter of Dixon, Wooten, Boy-ett, Thornton, Carpenter & O’Brien, Tal-ladega, for appellant.
    James M. Sizemore, Jr., of Sizemore & Rea, Sylacauga, for appellee.
   WRIGHT, Presiding Judge.

Caudle sued Blue Cross-Blue Shield (Blue Cross) claiming benefits under a hospital policy. Judgment was for plaintiff. Blue Cross appeals. We reverse.

The dispositive issue is whether an applicant for an insurance policy with coverage conditioned upon payment of the initial premium within thirty days thereof is entitled to credit for the premium from benefits accruing from a claim arising during said thirty days.

Pertinent facts are: Caudle was an insured under a Blue Cross group policy until March 24, 1976. The group policy provided that upon termination of employment, an employee could apply for an individual policy within thirty days of termination. On March 20, 1976, Caudle applied for an individual policy. On or about April 5, Blue Cross sent Caudle a certificate of insurance effective March 25, 1976, with notice of premium due March 25. The notice provided that unless the premium was paid within thirty days from March 25, 1976, coverage would terminate as of the due date.

Caudle’s wife entered the hospital on March 25 and was discharged on March 27, with covered charges of $503.70, if the policy applied for was in force on the dates of her hospitalization. Caudle never paid the initial premium but contends that he was entitled to have®so much of the benefits accrued applied as necessary to the payment of the premium due.

The case was submitted to the trial judge upon pleadings, stipulations and exhibits. The judgment therefore is not subject to the presumption of the ore tenus rule. State v. Tri-State Pharmaceutical, 371 So.2d 910 (Ala.Civ.App.), cert. denied, 371 So.2d 914 (Ala.1979).

It is clear that the obligations of Blue Cross to Caudle as insurer, if any, do not arise from the group policy which was automatically terminated when Caudle left his employment on March 20, 1976. There remained from that policy only the right of Caudle to apply for an individual policy within thirty days from its termination and pay the initial premium as required by Blue Cross. If there is coverage it must be from the new individual policy.

The trial court and appellee rely on the case of Blue Cross-Blue Shield of Alabama v. Colquitt, 42 Ala.App. 471, 168 So.2d 251, cert. denied, 277 Ala. 696, 168 So.2d 256 (1964). That case held that in order to prevent forfeiture of a policy for non-payment of premiums, if a loss occurs within the grace period, which results in an obligation for payment of benefits under the policy in a sum at least equal to the unpaid premium then due, such benefits may be applied to payment of the premium and the policy continued in force.

This court in the case of Blue Cross-Blue Shield of Alabama v. Craig, 46 Ala.App. 352, 242 So.2d 398 (1970), held that there was specific language in the policy which prohibited the application of the rule espoused by Colquitt and that such provision was permissible as a part of the contract of insurance. The language of the policy approved in Craig is contained in the policy in this case. It is as follows:

V.3. No benefits shall be provided hereunder with respect to:
3. Hospital services rendered or received during the grace period provided by V1.3 if actual payment of fees then due is not received by the corporation within such grace. Receipt by a member of Hospital Services during the grace period shall not constitute payment of fees.

Section V1.3, as pertinent, states:

A grace period of thirty (30) days shall be allowed within which the subscriber may make payment ... of any fees except the initial fee. . . .

It is to be seen that if the provisions of the policy as quoted apply to the facts of this case, Craig would apply and there would be no coverage since there was no payment of premium.

However, we conclude that the thirty-day period given to Caudle for payment of premium was not a grace period as referred to in the policy. A “grace period” in insurance policies such as this one is required by statute in this state. §§ 27-19-3, -6, Code (1975). It is therein defined as follows:

A. Grace Period: A grace period of . . . (insert a number not less than “7” for weekly premium policies, and “10” for monthly premium policies and “31” for all other policies) days will be granted for the payment of each premium falling due after the first premium, during which grace period the policy shall continue in force. (Emphasis ours.)

This statutory definition clearly indicates that a first premium is not subject to nor a part of the “grace period.”

Therefore, neither Colquitt nor Craig controls in this case. The rules of contract apply. There is involved here the basic precept of the formation of an insurance contract. That is the payment of a premium and the assumption of a risk. The payment of the required premium is essential to formation of the contract. Whether the payment of the first premium is a condition precedent to the insurer’s obligation depends upon the language of the contract. It was said in Pacific Mutual Life Insurance Co. v. Watson, 223 Ala. 571, 573, 137 So. 414 (1931):

The payment of premiums, the consideration upon which the insurer takes the risk, is of the essence of contracts of insurance. That the risk shall be carried only for the period for which the premium is paid may be incorporated as a valid term of the contract. Time is an element of the risk.

The payment or agreement to pay the premium by the insured is a condition precedent to or at least concurrent with, the assuming of any liability by an insurance company. Royal Insurance Co. v. Eggleston, 19 Ala.App. 638, 99 So. 828 (1924).

Blue-Cross offered Caudle a policy of insurance in return for payment of a premium. The offer was that the policy would become effective or risk assumed as of March 25, 1976, if Caudle paid the premium therefore within thirty days from March 25. If such premium was not paid no risks were assumed. If the premium was paid, the policy would be retroactive and benefits paid thereunder. Caudle did not pay the premium—the condition precedent to assumption of risk by Blue Cross. The offer was not accepted. The policy was never in effect. Security Life and Trust Co. v. Galin, 280 Ala. 325, 193 So.2d 766 (1966); Reliance Life Insurance Co. of Pittsburgh v. Lowry, 229 Ala. 258, 156 So. 570 (1934); Cherokee Life Insurance Co. v. Brannum, 203 Ala. 145, 82 So. 175 (1919); 1 Couch on Insurance 2d, § 9.1 at 370.

To view the matter as contended by Cau-dle would permit him to receive benefits without benefit of a contract or payment of a premium.

We reverse and remand for entry of judgment for defendant.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting):

I respectfully dissent.

This case was originally assigned to the author of this dissent. The majority of this court did not agree with my proposed opinion. My proposed opinion expresses my view of this appeal and is as follows:

The dispositive issue is whether an insurer must apply unpaid benefits due its insured to the payment of an overdue premium to prevent the loss of coverage.

The record reveals the following facts:

Through his employer Caudle contracted with Blue Cross for group hospitalization and major medical insurance. The group policy provided for automatic termination in the event Caudle quit his job. Caudle quit work and the group insurance contract terminated on March 24, 1976.

The group policy also provided that, upon termination of the contract, the employee could apply for an individual hospitalization and major medical insurance policy. This application had to be made within thirty days of the termination of the group contract.

On March 29, 1976, before the expiration of the thirty day period, Caudle applied for individual coverage. Sometime around April 5, 1976, Blue Cross sent Caudle an identification card and a copy of a contract for individual insurance coverage. . The identification card stated that the effective date of coverage was March 25, 1976. Blue Cross also sent Caudle a notice of non-payment of premiums. This notice stated that $139.86 was due on March 25,1976, and that unless Blue Cross received payment within thirty days after March 25, Caudle’s insurance contract would terminate automatically as of the due date.

Meanwhile, on March 20, 1976, Caudle’s wife entered the hospital. She was discharged on March 27, 1976.

At trial the parties stipulated that Mrs. Caudle would be covered by the individual policy if that policy was found to be in force and that, if the policy was in force, her covered charges were $503.70.

A claim for the charges was properly filed and the claim was paid. Blue Cross subsequently obtained a refund of the payment from the hospital and the hospital then collected from Caudle.

No premium payments have ever been received by Blue Cross from Caudle for coverage beyond March 24, 1976.

At the outset, 1 note that the instant case was submitted to the trial court sitting without a jury on the basis of the pleadings, stipulations of fact, and exhibits. Under such circumstances, the findings of the trial court do not carry any presumption of correctness, and the appellate court must consider the evidence de novo in light of applicable legal principles. State v. Tri-State Pharmaceutical, 371 So.2d 910 (Ala.Civ.App.), cert. denied, 371 So.2d 914 (Ala.1979).

The issue, as I perceive it, is whether the individual insurance policy was in force on the dates of Mrs. Caudle’s hospitalization. I would note that Caudle’s contract with Blue Cross for group insurance coverage terminated by its own terms on March 24, 1976, after Caudle quit his job. Therefore, any claim against Blue Cross can only arise under the individual insurance contract.

There is evidence in the instant case that Blue Cross extended individual insurance coverage to Caudle and his wife on a conditional basis and that the conditional coverage went into effect on March 25, 1976. Specifically, the identification card sent to Caudle stated that coverage became effective on March 25, 1976. The premium notice stated that the premium was due on March 25,1976, and that coverage would be terminated as of the due date if the premium was not paid within thirty days. Stated differently, if the premium was paid within the thirty day period, coverage would be extended retroactively to March 25, 1976. If the premium was not paid within that time period, there would be no coverage.

It is clear from the record that Caudle did not pay the premium within the thirty day period. However, Caudle and his wife did receive hospital services within that period.

In Blue Cross-Blue Shield of Alabama v. Colquitt, 42 Ala.App. 471, 475, 168 So.2d 251, 254, cert. denied, 277 Ala. 696, 168 So.2d 256 (1964), the court opined that “[o]ur courts are committed to the rule that when a loss occurs within the grace period, giving rise to an obligation by the underwriter to the insured for an unencumbered sum at least equal to the unpaid premium, then the premium is deemed to have been paid ...” so as to avoid the loss of coverage.

I find the instant case to be governed by this rule. A loss did occur during the thirty day period. Caudle’s wife was hospitalized. Blue Cross was obligated to pay the loss, if the premium was paid within the thirty day period. As indicated, the benefits conditionally due Caudle equaled $503.70. The premium was $139.86. Under Colquitt, Caudle was entitled to have the benefits contingently due him applied to the payment of the premium in order to avoid the loss of coverage. Therefore, I find that the individual policy was in force on the dates Mrs. Caudle was hospitalized and that Cau-dle is entitled to receive $363.84, the difference between the total benefits due and the premium, as benefits under the policy.

Blue Cross, through able counsel, contends that two provisions of the insurance contract and the holding of Blue Cross-Blue Shield of Alabama v. Craig, 46 Ala.App. 352, 242 So.2d 398 (1970), preclude application of the Colquitt rule in this case. Section VI-3 of the policy states:

“A grace period of thirty (30) days shall be allowed within which the Subscriber may make payment ... of any fees except the initial fee. ... ”

and Section V-3 provides that:

NO BENEFITS SHALL BE PROVIDED HEREUNDER WITH RESPECT TO:
3. Hospital service rendered or received during the grace period provided by Section VI-3 if actual payment of fees then due is not received by the Corporation within such grace period. Receipt by a Member of Hospital Service during the grace period shall not constitute payment of fees. (Emphasis supplied.)

In Craig, supra, the court held that the above emphasized language expressly precluded the use of any part of benefits supposedly accruing under the policy for the payment of an overdue premium. In other words, where this language appears in connection with a grace period the Colquitt rule does not apply.

However, I find that the language of Section V-3 does not preclude recovery in the instant case. As stated above, the group insurance contract between Caudle and Blue Cross terminated and ceased to exist on «March 24, 1976. The individual insurance contract between Caudle and Blue Cross was, therefore, a new contract. The $139.86 due on March 25, 1976, was the first premium due under that new contract. Section VI-3 states that a grace period shall be allowed for the payment of any fee “except the initial fee.” The premium due March 25, 1976, was clearly the initial fee under the new contract. Therefore, I find that the thirty day period that Blue Cross allowed for the payment of the first premium was not the grace period provided by Section VI-3. The exclusionary language of Section V-3, by its own terms, applies only when hospital services are received during a Section VI-3 grace period. Since the hospital services received by the Cau-dles were not received during a Section VI-3 period, the exclusionary language of Section V-3 does not prevent application of the Colquitt rule in the instant case.

For the reasons stated above, I would affirm the trial court.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Ashley M. GAMBLE v. FIRST ALABAMA BANK.
    Civ. 2687.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Rehearing Denied Sept. 23, 1981.

      Samuel H. Sanders, Birmingham, for appellant.
    F. Timothy McAbee and Donald J. Sides of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal by claimant, Ashley M. Gamble, from a summary judgment entered in favor of plaintiff, First Alabama Bank, (First Alabama) by the Circuit Court of Jefferson County. We dismiss this appeal ex mero motu for want of jurisdiction.

First Alabama sued Elbert Gamble for $2,617 allegedly owed on a contract. Default judgment was entered in favor of plaintiff. A 1974 Dodge Dart automobile registered to Elbert Gamble was seized and scheduled for sale at public auction to satisfy the judgment. Defendant’s son, Ashley Gamble, posted the required bond and obtained possession of the vehicle on the ground that he had a superior lien to that held by First Alabama. Ultimately the circuit court entered a summary judgment holding that First Alabama’s lien was superior to the one held by Ashley Gamble and authorized First Alabama to take possession of the vehicle or to proceed against Ashley Gamble on his bond. Gamble appealed.

Although plaintiff did not raise the issue of laek of jurisdiction in this court to consider the appeal, the question was posed to both counsel at oral argument and an opportunity was given to counsel to brief the question, and they have done so.

This court can obtain jurisdiction over an appeal only after a timely notice of appeal from a final judgment has been filed with the clerk of the trial court. Brown v. Martin, 394 So.2d 375 (Ala.Civ.App.1980), cert. denied, 394 So.2d 377 (Ala.1981); A.R.A.P. 4(a). A summary judgment rendered upon all the issues presented or for all the relief requested by the moving party is a final judgment. See generally Watts Construction Co. v. Cullman County, 382 So.2d 520 (Ala.1980); A.R.C.P. 56(d). The forty-two day period for filing a notice of appeal to this court with the circuit court begins to run from the date on which the circuit court’s final judgment is entered. See Holmes v. Powell, 363 So.2d 760 (Ala.1978). This time period may be suspended, however, by the filing of an A.R.C.P. 59(e) motion to alter, amend or vacate the judgment. Brown v. Martin, supra. But, no such suspension occurs if the motion is not both served and filed within thirty days of the circuit court’s entry of the final judgment appealed from. City of Talladega v. McRae, 375 So.2d 429 (Ala.1979); Hallmark v. Hallmark, 381 So.2d 641 (Ala.Civ.App.), cert. denied, 381 So.2d 642 (Ala.1980).

In the case at bar the circuit court entered an order granting plaintiff’s motion for summary judgment on September 25, 1980 when the order was filed with the clerk of the court and noted on the court’s civil docket. Claimant had forty-two days from the date of entry of this order, /. e. until November 6, 1980, within which to perfect a timely appeal, unless the forty-two day period was tolled by the timely filing of the 59(e) motion. Brown v. Brown, 374 So.2d 332 (Ala.Civ.App.), cert. denied 374 So.2d 334 (Ala.1979); A.R.C.P. 5(b).

The thirty day period for filing the 59(e) motion expired on October 25, 1980, which was a Saturday; therefore claimant would have had until the following Monday, October 27,1980, to file his motion. Service was perfected on First Alabama when claimant mailed a copy of the motion on October 27, 1980, but the motion was not filed with the clerk of the circuit court until October 28, 1980. Not having filed the motion within the thirty day period, i. e. by October 27, 1980, the motion was untimely and thus did not toll the time within which to appeal. The time for appeal expired on November 6,1980. The appeal was not perfected until February 17, 1981; therefore the appeal was not timely perfected and this court is without jurisdiction to entertain it. The appeal must be dismissed.

APPEAL DISMISSED.

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


text:
    Rayford D. HUBBARD v. Tommy Ray WILLIAMSON.
    Civ. 2798.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Rehearing Denied Sept. 23, 1981.

      Jim Zeigler, Millbrook, for appellant.
    Richard A. Lawrence, Montgomery, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment in favor of plaintiff in a negligence action.

Tommy Ray Williamson sued Rayford W. Hubbard for damages resulting from a collision between his motorcycle and Hubbard’s car allegedly caused by Hubbard’s failure to yield the right-of-way. Hubbard counterclaimed contending Williamson negligently collided with his car.

The case was tried before the court sitting without a jury on February 20, 1981. Judgment was entered on March 2, 1981 in favor of Williamson for the sum of $3,500 and costs. Hubbard filed a motion for new trial alleging newly discovered evidence and an alternative motion for reconsideration. Both motions were denied on April 8, 1981. Hubbard appealed.

The record reveals the following facts. Williamson was on his way to work at approximately 4:30 a. m. on March 4, 1981 when he was involved in a collision with an automobile at the intersection of Highway 14 and Brownwood Road in Elmore County.

The record tends to show that Williamson was riding his motorcycle down Highway 14 toward the intersection of Highway 14 and Brownwood Road. The motorcycle’s headlight was on and he was wearing an orange vest. Hubbard pulled up to a stop sign at this intersection and waited for a couple of cars to pass and then pulled out onto Highway 14. As Hubbard pulled out into the intersection, Williamson hit his car in the vicinity of the right rear passenger door. Williamson was thrown from his motorcycle and had to be taken to the hospital where he was treated and released. Hubbard was not injured.

Williamson testified that he saw Hubbard pull up to the stop sign and stop. Williamson then glanced at his tach gauge and when he looked back up Hubbard had pulled out in front of him and he had no time to stop or avoid a collision. Hubbard testified that he looked both ways after the two cars had passed and he did not see Williamson.

Williamson incurred a serious cut to his left elbow, requiring medical attention. He suffered considerable pain and discomfort.

Williamson lost fourteen days from work which cost him about $722. He also received a doctor’s bill of $415 and a hospital bill of $174. The repair estimate for his motorcycle was $1,222.

The state trooper who investigated the accident testified without objection that in his opinion Hubbard’s vehicle failed to yield the right-of-way to Williamson.

Appellant’s first issue is whether the trial court erred in refusing to view his damaged automobile. In a nonjury case the trial judge has the discretion to make an out-of-court view. Fowler v. Fayco, Inc., 290 Ala. 237, 275 So.2d 665 (1973); Monroe Bond & Mortgage Co. v. State, ex rel. Hybart, 254 Ala. 278, 48 So.2d 431 (1950); Gamble, McElroy’s Alabama Evidence § 208.02 (3d ed. 1977). In the case at bar appellant, after he had rested, made a statement to the trial court that the vehicle damaged in the collision was available for inspection; he did not request the court to view the vehicle. Nevertheless, the trial court declined to do so.

Whether plaintiff in fact requested the court to view the vehicle or whether he merely informed the court that the vehicle was available for viewing is not determinative for the reason that the trial court exercised its discretion and declined to view the automobile. Such action was not an abuse of its discretion, particularly in view of the fact that there was testimony in the record relating to the extent of damage to Hubbard’s vehicle.

The second issue is whether plaintiff’s judgment is supported by the evidence. We find that it is.

Defendant argues that he produced evidence that plaintiff was contributorily negligent and, as a result, the trial court erred in finding for plaintiff.

When a trial court hands down a judgment after hearing a case ore tenus, the findings of the trial court will be presumed correct and the judgment will not be overturned unless plainly wrong and manifestly unjust. Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So.2d 7 (Ala.1980).

The evidence was in conflict as to which of the parties caused the collision and whether one party or the other contributed to the collision. The trial court resolved these conflicts by finding that appellant was negligent in causing the collision and did not find that appellee was contributorily negligent. We do not consider such findings to be plainly wrong or manifestly unjust.

Appellant’s final issue concerns the propriety of the trial court’s order overruling the motion for new trial.

The record discloses that the principal ground of the motion concerns statements and admissions allegedly made by plaintiff after the trial that would tend to prove that he negligently contributed to the collision. Appellant argues that he was not afforded a hearing at which he could have proved these allegations, yet he says in.brief that he offered such proof to the court in support of his motion.

The record reflects that the motion was heard and submitted to the court and on April 8, 1981 said motion was denied. There is nothing in the record to indicate that the appellant did not have an opportunity to be heard on his motion, and the record does not reflect that appellant made any objection to the way the motion was handled by the trial court. In this posture of the case we cannot say that the trial court erred in overruling the motion for new trial.

Williamson’s request for damages for frivolous appeal pursuant to Rule 38, ARAP is denied.

For the above noted reasons, the judgment of the trial court is affirmed. AFFIRMED.

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


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    Earl MATTHEWS v. Sarah MATTHEWS.
    Civ. 2801.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Rehearing Denied Sept. 23, 1981.

      Sidney Gene Landreau of Faulk & Lan-dreau, Phenix City, for appellant.
    Sam E. Loftin of Davis & Loftin, Phenix City, for appellee.
   BRADLEY, Judge.

This appeal is from judgment holding appellant in contempt for failure to pay periodic alimony and a judgment modifying the periodic alimony provision of a prior divorce decree.

The parties to this proceeding were divorced by order of the Russell County Circuit Court on March 26, 1979 and the appellant was ordered to pay appellee $400.00 a month as periodic alimony. At the time of the divorce, appellant was employed and earning about $16,000 a year including military retirement pay. At the time of the modification hearing, appellant was unemployed and his sole income was his military retirement pay of $543.00 per month.

Appellant is in his early fifties, in good health, and is actively seeking employment. Appellee is about fifty and in poor health. She is unemployed and her job prospects are not good. She testified that the alimony payments were her only source of income other than seventy dollars a month she receives in free food stamps.

After an ore tenus hearing the trial court held the appellant in contempt for failure to make a certain monthly alimony payment and then modified the periodic alimony requirement in the divorce decree by suspending the $400 a month payment until such time as appellant becomes gainfully employed, and substituting in lieu thereof the requirement that appellant pay to appellee as periodic alimony fifty percent of his military retirement pay and fifty percent of any unemployment compensation benefits that he might receive until such time as he becomes gainfully employed. Upon being gainfully employed appellant would again be required to pay $400 per month as periodic alimony.

Appellant appeals from this decree contending that the trial court erred (1) in holding him in contempt for failure to pay periodic alimony, (2) in modifying the prior divorce decree only to the extent of reducing monthly alimony payments from $400 to fifty percent of his military retirement and fifty percent of any unemployment compensation benefits that he might receive, (3) in changing the requirement that payment be made by the first of each month to the requirement that payment be made no later than the tenth of each month, and (4) that the trial court erred in overruling his motion for a directed verdict made at the conclusion of appellee’s case in chief.

Appellant’s first contention is that the trial court erred in holding him in contempt for failure to pay periodic alimony and he has appealed that aspect of the trial court’s judgment.

The proper remedy for review of a contempt order is by certiorari if the party in contempt is not in jail and appeal is not the proper remedy. Lunceford v. Lunceford, 363 So.2d 98 (Ala.Civ.App.), cert. denied, 363 So.2d 100 (Ala.1978). The appellant was not in jail at the time he sought review of the contempt order. However, we choose to treat this appeal as a writ of certiorari. and will, therefore, consider the argument of appellant. Reeder v. Reeder, 356 So.2d 202 (Ala.Civ.App.1978).

The scope of review of a contempt judgment on certiorari is limited to questions of law. Reeder v. Reeder, supra. Questions of fact, if there is any evidence to support the trial court’s judgment, will not be disturbed. Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970).

In the present case it is undisputed that the December 1980 payment, which was due on December 1, 1980, was not paid until January 14, 1981. Payment of the December 1980 installment was made after the petition for rule nisi was filed, i. e. January 6, 1981, but before the date of the hearing, i. e., March 31, 1981. The trial court found that the December 1980 installment had not been paid as of March 31, 1981. This finding is not supported by the evidence. Consequently, the trial court’s judgment holding appellant in contempt is erroneous.

Appellant’s second contention is that the trial court erred in its modification order by requiring him to pay fifty percent of his military retirement pay and fifty percent of any unemployment compensation benefits that he might receive as periodic alimony. In other words, appellant argues that under the original divorce decree he was required to pay only thirty percent of his income as periodic alimony whereas now he is required to pay fifty percent of his income as such alimony. And his income is now about one-half of what it was at the time of the divorce decree.

It is true that appellant’s income has been substantially reduced, but it is also true that appellee’s needs are still as much or more than they were originally. Her prospects for employment are not good whereas appellant’s prospects for employment are good.

In a divorce modification proceeding, the trial court’s judgment will be presumed correct where it heard the evidence orally and will not be set aside except for plain and palpable error. Parrish v. Parrish, 365 So.2d 1237 (Ala.Civ.App.1979). In such a proceeding there are many factors for the trial court to consider, among which would be the wife’s financial status and need and the financial ability of the husband to respond to her needs. Parrish v. Parrish, supra.

The record before us reflects that the appellee’s needs are in excess of the $400 she has been receiving in alimony and her other income sources are practically non-existent. However, the record also shows that appellant’s income has been substantially reduced since the divorce decree. So, the appellant’s ability to respond to appellee’s needs has been reduced, and, it appears that the trial court took this factor into consideration when it modified the periodic alimony award. Although the amount required to be paid by appellant will be proportionally greater than before, the amount that will be received by appel-lee will probably be less than the $400 she had been receiving under the original decree. Under these circumstances, we cannot say that the trial court’s decree is palpably erroneous.

Appellant’s next contention is that the trial court erred in changing the date when the periodic payments are due from the first of each month to no later than the tenth of each month. We find no error here.

As noted above, a trial court’s modification decree will not be set aside except for palpable abuse where it heard oral testimony.

The parties testified concerning the dates on which appellant would make the monthly payments, they pointed out a problem where the wife fails to pay the monthly house payment and there was testimony that the appellant would not know if the appellee had made the house payment until several days after the first of the month.

Based on this testimony the trial court fixed the date for making the alimony payments at no later than the tenth of the month to give the appellant an opportunity to learn whether he should pay the house payment and send the remainder to appel-lee or send the full amount to appellee. We find no abuse of discretion here.

Appellant’s final contention is that the trial court erred in overruling his motion for a directed verdict at the conclusion of appellee’s case.

To begin, the proper motion to make in a non-jury case when the defendant seeks to have plaintiff’s action dismissed because plaintiff has failed to show by the law and facts a right to relief, is a Rule 41(b) motion, not a Rule 50(a) motion which applies only in jury cases. Quick v. Director, State Department of Industrial Relations, 398 So.2d 312 (Ala.Civ.App.1981); Chaney v. General Motors Corp., 348 So.2d 799 (Ala.Civ.App.1977). The instant proceeding was a non-jury case; hence we will treat the motion for a directed verdict as a 41(b) motion to dismiss.

Appellee petitioned the court to modify the alimony provision of the divorce decree to increase the monthly payments to $600.00 a month due to increased living expenses. Appellant counterclaimed by asking that the alimony provision be modified so as to reduce the amount of the monthly payments.

Appellee’s evidence showed that her living expenses had increased and that she had obtained free food stamps to make ends meet. Appellee also testified that she did not know the specific amount of appellant’s earnings but that he was working. It could be reasonably inferred from this testimony that appellee needed additional alimony and that appellant was able to make additional payments.

The burden is on the moving party in a modification proceeding to show a substantial change in circumstances. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App. 1979). And, the trial court can modify an alimony award based on proof of changed circumstances of one or both of the parties. Copeland v. Copeland, 343 So.2d 533 (Ala.Civ.App.1977).

In the case at bar appellee, at the least, made out a prima facie case for an increase in periodic alimony and thus the trial court was not in error in overruling the motion. Particularly is this so where the appellant was also seeking a modification to reduce the alimony payments.

Affirmed in part, reversed in part and remanded for entry of a judgment not inconsistent with this opinion.

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

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

ON REHEARING

BRADLEY, Judge.

In her application for rehearing appellee points out that this court failed to rule on her request for an attorney’s fee on appeal and requests that we do so.

Appellee’s motion for an award of attorney’s fee on appeal is granted and she is awarded the sum of $350.00 for that purpose.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: SCRUGGS, Retired Circuit Judge.

text:
    Mary Ann REED v. Verma REED.
    Civ. 2740.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    Thomas P. Ollinger, Jr. of Wilkins & Dru-han, Mobile, for appellant.
    Edward P. Turner, Jr. of Turner, Onder-donk, Bradley & Kimbrough, Chatom, for appellee.
   SCRUGGS, Retired Circuit Judge.

This is a divorce case.

Generally, only those portions of the divorce judgment and of the evidence which are relevant to the issues before us and which comport with the prevailing presumption governing appellate review shall be detailed or discussed herein.

After conducting the ore tenus trial, the circuit court divorced the parties for incompatibility of temperament; granted to the wife the custody of the four youngest children, who were fifteen, fourteen, eleven and seven years of age; gave custody of the sixteen-year-old son to the husband; and ordered the husband to pay to the wife as child support the sum of $128 per week for the four children in her custody. Additionally, he was required to continue to maintain medical insurance coverage upon the minor children and to pay all doctor, hospital, dental and prescription drug expenses of the minor children not covered or paid by his insurance. The judgment vested the wife’s interest in the home and in most of the furniture in the husband, who was made responsible for the home mortgage indebtedness. The husband was directed to pay to the wife $5,000 as a property settlement for her interest in the home and furniture which was awarded to him.

The wife’s present complaints are: (1) that the weekly child support payments are so inadequate as to constitute a palpable abuse of discretion; (2) that the award of the home to the husband was clearly unjust, or (3) that the $5,000 adjudication was so inadequate as to be plain error.

An award of child support and division of the property lie within the sound judicial discretion of the trial court which hears the witnesses testify, and will not be disturbed upon appeal except for a palpable abuse of that discretion. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980); Coffelt v. Coffelt 390 So.2d 652 (Ala.Civ.App.1980).

(1)

Both parties testified to expenses which exceeded their then incomes. At trial time the wife received temporary total workmen’s compensation benefits of $677 per month from her former employer and $75 per week from the husband as voluntary payments of child support for the four children in her custody. His take-home salary as a production foreman fluctuated around $600 every two weeks depending upon overtime worked by him. There were deductions from his paychecks for an investment and for a credit union. His borrowing against the investment funds almost equals his accumulated deposit therein, and the debt to the credit union greatly exceeds his credit union deposit of approximately $50. In addition to his weekly payments for the expenses of the four younger children, he was supporting himself, their oldest minor son, and the wife’s 17-year-old son by her previous marriage, for whom the husband has provided support since the boy was three weeks old.

The amount of the award of child support to be paid to the wife was a factual matter which called for the exercise of the trial court’s discretion. No legal mathematical formula has been accepted which provides a yardstick whereby exact amounts to be paid for the support of children may be ascertained, for every case is different with many variables. The particular needs of individual children and the relative ability of a parent to fully, or partially, pay for, or otherwise meet, those needs are the two primary facets which are utilized by courts in ascertaining a reasonable award for the support of children. Edison v. Edison, 384 So.2d 1118 (Ala.Civ.App.1980). We have reviewed the entire record, studied the briefs and authorities cited therein, listened attentively to the wife’s oral argument and have done considerable independent legal research, but we find no abuse of discretion in the periodic child support award of $128 per week, which amounts to $554.67 each month or $6,656 annually. In connection with that award, it must be considered that the husband must also be fully and totally responsible for all health needs of the minor children, which is a requirement of considerable consequence and responsibility.

(2)

The home is situated across the street from his father’s house, near the outskirts of McIntosh and in the region of the husband’s place of employment. In September 1980, the wife, moved to Prich-ard and rented a house, where she and the four children have since resided, with those children being enrolled in local schools in Chickasaw and Prichard. The oldest child attends McIntosh High School. The wife testified that all of her people moved to Mobile, and, thereafter, she traveled to and from Mobile so frequently to visit them that she obtained a pistol permit for protection since she was on the highway so much. Before she moved, she alternated, in time increments of two to three days each, between staying at home and staying in Mobile. The husband testified that his roots and job are in McIntosh, that he wants to remain there, whereas the wife had expressed on multiple occasions a continuing desire to move to and reside in or near Mobile. Under these conditions, it was neither unjust nor unreasonable to award the home to him.

(3)

The question then evolves as to whether the $5,000 award in lieu of the home and some of the furniture constituted reversible error.

The parties acquired joint ownership in the home in 1973 at a cost of $13,500 and no improvements have been made to it since that time except for the installation of some carpeting. The mortgage against the home was through the Farmer’s Home Administration for a 30-year period payable by monthly installments of $91. Her estimate was that the home is now worth from $25,000 to $30,000; however, the husband placed its value at $20,000. The evidence as to the amount then due upon the home mortgage varied from a low of $9,000 to a high of $12,000. The evaluation which the parties placed upon the furniture, which is old and which was used during the rearing of their children, fluctuated from $4,000 to $12,000. Their equity in the home could have been as low as $8,000, and one value placed upon all of the furniture was only $4,000, but the wife was awarded some of it. Accordingly, we cannot hold that the award to her of $5,000 for her interest constituted an abuse of discretion. To alter that amount on appeal would be an unauthorized substitution of our judgment for that of the trial court.

Conclusion

Primarily, questions of fact, or conclusions and adjudications based upon findings of fact, are involved in this case. Trial judges must have, and exercise, judicial discretion in divorce cases concerning the amount of child support and the division of property. The learned trial court was not palpably wrong in its judgment. There was evidence which was supportive of that court’s decision. It was not unjust. We must affirm, as there was no abuse of judicial discretion.

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 (1975) and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Glenn WEISS and Agnes Weiss v. Edward Scott FUTRELL, Jr.
    Civ. 2746.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.

      William D. McFatter of McFatter & Ward, Dothan, for appellants.
    Wade H. Baxley, Dothan, for appellee.
   BRADLEY, Judge.

This case involves the breach of a land sale contract.

Defendants, Glenn and Agnes Weiss, advertised their farm for sale in November 1978. Plaintiff, Edward Futrell, answered this advertisement on December 2, 1978 by calling defendants on the telephone, at which time Mr. Weiss told plaintiff that the purchase price would be $7,000.00 equity and the assumption of a mortgage of between $34,000.00 and $35,000.00. Later on the same day plaintiff and his wife toured the property and asked defendants to hold it for them until the next day.

The next day plaintiff and a friend again toured the property. At that time the facts indicate that plaintiff agreed to purchase the property. It was agreed that the parties would finalize their agreement later that day.

Plaintiff returned to the property on the afternoon of December 3, 1978 whereupon he wrote a memorandum of the transaction as Mr. Weiss read him a description of the property. The agreement contained only the price terms and property description. No closing date was set out. Mrs. Weiss signed only as a witness. Plaintiff left a check for $100.00 as a binder.

On December 11,1978 plaintiff received a letter from defendants’ attorney demanding that tender of the equity in the amount of $6,900.00 be made by December 9,1978. At this point plaintiff called the defendant and was told that the deal was off.

Plaintiff claims that he offered to close the transaction immediately, but defendants state that he never offered to close or tender the equity. The parties also dispute what their agreement was for closing the transaction. Plaintiff claims that they agreed to close on February 1, 1979, but defendants claim that closing was to be within a week of the agreement.

On April 3, 1979 plaintiff filed suit in the Circuit Court of Houston County alleging breach of contract. On February 25,1981 a jury trial was held. At the close of plaintiff’s case, defendants moved for a directed verdict on the grounds that the plaintiff had not proven that there was a contract. The judge denied the motion. The jury returned a verdict in favor of plaintiff in the amount of $5,000.00. From this verdict defendants appeal to this court.

Defendants raise four issues in this appeal. We will address each of these issues separately.

First, defendants contend that the trial judge erred in not granting their motion for directed verdict. Defendants claim that there could be no breach of contract unless the plaintiff had tendered the purchase price. In this case they claim that no offer of tender was ever made and as a result the plaintiff could not recover as a matter of law. In this case plaintiff says that the written memorandum contained no time limit for closing the sale and paying the equity; that he received a letter from defendants’ attorney demanding tender of the équity by December 9, 1978; and that when he called the attorney and offered to close immediately, he was told that the deal was off. Defendants deny that plaintiff ever offered to close or tender the equity. The evidence was in conflict and the trial court properly refused the directed verdict request. McAllister v. Langford Investigators, Inc., 380 So. 2d 299 (Ala.Civ.App.1980); Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App.1976).

Defendants also contend that the trial judge erred in refusing to give one of the jury instructions which they requested. Defendants did not object to the failure to give this instruction in the trial court. An objection would have had to be made in the trial court to preserve this issue for appeal. Hughes v. Southern Haulers, Inc., 379 So.2d 601 (Ala.Civ.App.1979); A.R.C.P. 51. Since no objection was made at trial, this court is unable to address this issue and as a result can find no error.

In their third issue, defendants contend that the trial court erred in not explaining the word “dower” to the jury. The word in question was used in a written charge given to the jury at the request of defendants.

Where the trial judge gives a written charge to the jury in the language requested by one of the parties, that party cannot later complain. Johnson v. Pruitt, 29 Ala. App. 174, 194 So. 406, rev’d on other grounds, 239 Ala. 44, 194 So. 409 (1939). The written charge in question in the instant case was given by the trial judge as requested by the defendants. The refusal to later explain one of the words in the defendants’ own requested charge is not reversible error.

Finally, defendants claim that plaintiff failed to prove damages. Defendants, however, did not raise this issue at trial. Their motion for directed verdict was on totally different grounds, and they did not file a motion for a new trial. In order for this court to address this issue, defendants would have had to raise it in the trial court. A.R.A.P. 4(a)(3). As a result, we are precluded from examining this issue.

Finding no error in this case, the judgment below is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    Woodzie Eugene MYRICK and Susan K. Myrick v. FINANCE AMERICA CREDIT CORPORATION, a corporation.
    Civ. 2703.
    Court of Civil Appeals of Alabama.
    Sept. 16, 1981.

      John C. McKelvey, Tuscumbia, for appellants.
    Ernest N. Blasingame, Jr., Florence, for appellee.
   BRADLEY, Judge.

On January 30, 1979 Max Fishman, a sales representative of Ole South Building Supply Corporation (“Ole South”), called on plaintiffs, Woodzie and Susan Myrick, to persuade them to permit Ole South to install steel siding on their home in Florence, Alabama. The Myricks agreed to let Ole South install the siding, and subsequently affixed their signatures to a property improvement contract, a home improvement sales contract, and a mortgage agreement. The total contract price was payable in eighty-four monthly installments. The mortgage on plaintiffs’ home was designed to secure payment of the contract price.

• Plaintiffs testified at trial that at the time they signed the contracts and the mortgage, only the property improvement contract had been completed with the necessary information. They further testified that Fishman failed to inform them of the total finance charge on the contract, the annual percentage rate thereon, and any charge that might be made for credit life insurance. Plaintiffs maintained that, at the time the transaction was consummated on January 30, 1979, they did not receive copies of the home improvement sales contract or of the mortgage, nor did they receive a written notice of their right to cancel the contracts.

Plaintiffs made monthly payments until October 1979. Upon plaintiffs’ default, defendant, Finance America, the assignee of Ole South’s outstanding accounts, attempted to foreclose on the mortgage. On July 22,1980 plaintiffs’ attorney notified defendant that "plaintiffs were rescinding the contracts and the mortgage with Ole South pursuant to § 5-19-12, Code 1975, and 15 U.S.C. §§ 1631-1693, better known as the Truth-in-Lending Act (TILA), and offered as a tender “the principal balance due on their contract.” On July 23, 1980 plaintiffs filed suit against defendant, alleging violations of 15 U.S.C. §§ 1635 and 1638, and seeking a temporary restraining order to enjoin defendant from foreclosing on the mortgage. The Myricks paid into court $4,500.00 as security for the issuance of the temporary restraining order. The court granted the temporary restraining order, enjoining the foreclosure. A hearing was held December 1, 1980 in which the circuit court entered a judgment cancelling the contracts, permanently enjoining the foreclosure on the mortgage, and awarding $1,500.00 in attorney’s fees and $1,000.00 in damages to plaintiffs from the $4,500.00 previously posted by plaintiffs. The remaining $2,000.00 of this amount was awarded to the defendant to satisfy the mortgage, and plaintiffs were permitted to retain possession of the steel siding.

Plaintiffs appeal from a denial of a motion for new trial, alleging (1) that the circuit court erred in awarding defendant $2,000.00 to satisfy the mortgage, and (2) that it erred in awarding plaintiffs’ statutory penalty and attorney’s fees out of the $4,500.00 which they had deposited with the court as security for the temporary restraining order. We agree and reverse the about questioned portion of the judgment of the circuit court.

Title 15, § 1638 of the United States Code provides that a creditor must disclose to a debtor certain items, including the finance charge and annual percentage rate thereon, in the contract of sale or other evidence of indebtedness in a consumer credit sale before extending credit to the debtor under the contract. See Partida v. Warren Buick, Inc., 454 F.Supp. 1366 (N.D. 111.1978); see generally 12 C.F.R. § 226.8 (1974). Ole South’s failure to disclose the finance charge, the annual percentage rate of such charge, and the period of payment of this charge constituted a violation of the TILA, subjecting defendant, Finance America, as assignee of assignor-creditor Ole South, to liability. See Bustamante v. First Federal Savings & Loan Association, 619 F.2d 360 (5th Cir. 1980).

These TILA violations committed by Ole South gave plaintiffs, under the provisions of 15 U.S.C. § 1635, a right to rescind the transaction, and they properly did so by letter on July 22, 1980. Section 1635 provides that the debtor in a consumer sales transaction involving a security interest in a residence may rescind the contract “until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section.” If the required disclosures are material and are never made, the right to rescind is continuous. Rudisell v. Fifth Third Bank, 622 F.2d 243 (6th Cir. 1980); Bustamante v. First Federal Savings & Loan Association, supra; see generally 12 C.F.R. § 226.9(a) (1974). Failure to disclose information concerning the finance charge is a material nondisclosure. See, eg., Bustamante v. First Federal Savings & Loan Association, supra. Since the required disclosures were never made or delivered to plaintiffs before they elected to rescind the transaction, and since the rescission occurred within three years after the contracts were executed by plaintiffs, 15 U.S.C. § 1635(f), plaintiffs’ rescission was timely. When plaintiffs properly rescinded under § 1635, the mortgage entered into pursuant to the credit sales transaction became void. § 1635(b). The trial court’s award to defendant in satisfaction of a mortgage which was no longer in existence was érroneous.

Upon plaintiffs’ timely rescission, both parties were obligated to perform their respective duties under § 1635(b). Upon receiving notice of the rescission of the contract, defendant had ten days within which to return any money paid by plaintiffs and to terminate the security interest in the debtor’s property. § 1635(b). Plaintiffs were then required to tender the property received under the contract, i.e. the siding, or, if return of the property was impracticable, the reasonable value of such property. § 1635(b). Defendant then had ten days to take possession of the tendered property or the money, or it forfeited its right to possession thereof. § 1635(b).

In the instant case neither defendant nor plaintiffs performed their statutory duties. The record fails to show that defendant responded in any fashion to plaintiffs’ notice of rescission; and plaintiffs, as the record shows, made only a conditional tender. In other words, plaintiffs made a tender which would be effective only after defendant had completed its obligations under § 1635(b). Such a tender is insufficient to start the ten-day forfeiture period running. See Bustamante v. First Federal Savings & Loan Association, supra. Where neither party to a credit sales transaction under the TILA performs the duties imposed upon him by § 1635(b), the ten-day forfeiture provision of the statute is never triggered, and the creditor retains his rights in the property or to payment thereof. See Bustamante v. First Federal Savings & Loan Association, supra; Gerasta v. Hibernia National Bank, 575 F.2d 580 (5th Cir. 1978).

Under these circumstances, defendant would not lose its rights in the property, i.e. the siding, or its reasonable value. Had the defendant loaned plaintiffs money to buy the siding and its installation, the defendant would have been entitled to the net proceeds of that loan. See Gerasta v. Hibernia National Bank, supra. However, defendant did not lend any money to plaintiffs, but instead purchased the contract from Ole South Building Supply Company. Therefore, defendant is entitled in the instant case to the return of the siding or its reasonable value, not the net proceeds of the loan. Moreover, the defendant, in keeping with the intent of § 1635(b), must also refund to the plaintiffs all money paid by them under the contract. In doing so, however, the defendant can offset this amount against the reasonable value of the siding, assuming of course that the trial court finds that it is impracticable to require plaintiffs to turn over the siding to defendant. See Harris v. Tower Loan of Mississippi, Inc., 609 F.2d 120 (5th Cir. 1980).

The trial court erroneously awarded defendant $2,000 as the balance due on the contract. Its judgment in this regard is therefore reversed and the cause remanded for the trial court to award the siding or its reasonable value to the defendant and to require the defendant to pay to the plaintiffs all amounts previously paid on' the contract. Should the value of the siding exceed the amount owed to plaintiffs, defendant should be permitted to offset the amount owed to plaintiffs against the reasonable value of the siding; otherwise defendant would be permitted to pay plaintiffs the difference between the amount owed plaintiffs and the value of the siding.

We now consider plaintiffs’ argument that the circuit court erred in awarding them the statutory penalty for Ole South’s TILA violations and attorney’s fees out of the sum which they had posted as security for the issuance of the temporary restraining order against defendant. Rule 65 of the Alabama Rules of Civil Procedure (ARCP) provides, in part, as follows:

No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorneys fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained .... [Emphasis supplied.]

It is clear from a cursory reading of Rule 65(c), ARCP, that the damages and attorney’s fees which may be awarded from the sum deposited as security for the issuance of a temporary restraining order are limited to those damages and attorney’s fees incurred by the party wrongfully restrained by the order. The deposited sum “is not intended to cover payment of such sum as the court may decree to be paid on the merits of the case.” 7-Pt. 2 Moore’s Federal Practice ¶ 65.09, at 65-94 (2d ed. 1980); See Detroit Trust Co. v. Campbell River Timber Co., 98 F.2d 389 (9th Cir. 1938). Since defendant was not wrongfully restrained by the temporary restraining order, payment of plaintiffs’ attorney’s fees and the $1,000.00 statutory penalty for Ole South’s TILA violations, which sums represented § 1640 damages, should not have been made out of the $4,500.00 which they had deposited with the circuit court as security for the issuance of the order. Such sums should have come from the defendant, not from the plaintiffs. To require otherwise would, in effect, be rewarding defendant for its own wrongdoing. Hence, that portion of the circuit court’s judgment awarding plaintiffs $1,000.00 in damages and $1,500.00 in attorney’s fees out of the $4,500.00 sum which plaintiffs deposited with the court as security for the issuance of the temporary restraining order is reversed. The trial court is directed to require the defendant to pay the amounts in question.

Defendant contends in brief that plaintiffs’ cause of action was barred by laches and estoppel and that the circuit court erred in voiding the contracts and mortgage and in awarding damages and attorney’s fees to plaintiffs. Defendant did not cross-appeal this aspect of the trial court’s judgment, and we are, thus, precluded from considering these issues. Hodges v. Nelson, 370 So.2d 1020 (Ala.Civ.App.1979).

In summary, the trial court’s judgment awarding defendant $2,000.00 as the balance due on the contract is reversed and the trial court is directed to require defendant to pay to plaintiffs all money paid to it on the contract and to require plaintiffs to return the siding or its reasonable value to defendant. The amounts owed to each other may be offset to facilitate the settlement. Moreover, the trial court’s award of damages and attorney’s fees to plaintiffs out of the $4,500.00 deposited by them with the court as security for the issuance of the temporary restraining order is reversed, and the trial court is directed to require the defendant to pay these amounts.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOLMES, J., concurs.

WRIGHT, P. J., concurs specially.

WRIGHT, Presiding Judge,

concurring specially.

I concur in what appears to be the result of the opinion of the majority. However, it appears to me that the more simple solution upon remand would be to direct judgment ordering defendant to first do what § 1635 requires upon proof of right of rescission, that is to return to plaintiffs all sums paid by them under the rescinded contract including earnest money, down payment, or otherwise and act to terminate as necessary any security interest created under the contract.

Defendant should further be directed to pay to plaintiffs the damages and reasonable attorney fees awarded under § 1640(a). Thereafter plaintiffs should be directed to pay to defendant the reasonable value of the materials and service received by them. There having been no damages or cost to be assessed against the security posted by plaintiffs, it should be refunded to them. There is no need for credits and setoffs.


text:
    Paula Jones Witt CANTERBURY v. Philip B. WITT.
    Civ. 2792.
    Court of Civil Appeals of Alabama.
    Sept. 16, 1981.

      J. Michael Manasco, Montgomery, for appellant.
    Sanford D. Weiss of Weiss & Sawyer, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves post-divorce modification proceedings for increased child support.

The 1970 divorce judgment approved an agreement of the parties which provided, among other matters, that the husband would pay the amount of $75 every four weeks for the support of each of their two minor children, with the payments to continue until each child reached the age of twenty-one years, became self supporting or married.

In January 1981, the husband filed a motion to reduce the amount of child support payments since one of the children had attained his majority, and, in her answer, the wife admitted that the son was then nineteen years of age. The wife filed a counterclaim for an increase in child support and for her attorney’s fee. The March 27,1981, judgment of the trial court, which was rendered following a trial before the court, terminated support for the adult son and increased support for the minor daughter to $100 per month. Nothing was mentioned therein about the wife’s fee for her attorney. The court later overruled the wife’s motion to alter, amend or reconsider its judgment by increasing the monthly award for maintaining the daughter and by providing attorney’s fees for the wife. The wife timely appeals, and we have been furnished with an excellent brief on her behalf.

In its March 27 judgment, the trial court made the following finding of facts:

At the time of the divorce the children of the parties were eight and four years of age and Mr. Witt was earning approximately $15,000.00 a year with the same employer from whom he is currently receiving approximately $24,000.00 per year. The Respondent (Paula Canterbury) is now employed and nets $776.00 per month. Mrs. Canterbury has been remarried and was divorced from her subsequent husband approximately one year ago. She received no support from that husband. Mr. Witt has remarried and has three children by his present wife. He has little or no contact with the children of the former marriage. Mr.« Witt is current in his child support payments.

In addition to these facts, the wife testified as to the accuracy of her written list of monthly expenses of $489 per month for the daughter. However, included in those enumerated monthly expenses were the following items: $200 for food for the daughter, who must eat a high protein diet because of hypoglycemia; $60 for school lunches, which the daughter carries from home to school because of her diet; and $63 as the premium upon a medical policy which insures both the minor daughter and adult son. She stated that, since the divorce, the expenses for maintaining the minor child had increased. The daughter attends public school and a private dance school. The wife had paid her attorney $400.

The husband testified to the following additional facts: That $75 a month is not a sufficient amount to support a minor child, and that he is not able to pay an amount of support equal to or greater than he is presently paying, which obligation causes him difficulty in fulfilling. He cannot afford to purchase clothing either for himself or for his family, which clothing is bought almost exclusively by his in-laws.

Child Support

Other than those facts relative to the bench remarks of the trial judge, the facts in Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979), closely parallel those in the present case. The law there stated is fully applicable here. Accordingly, we will not burden this decision by extensive quotations from that opinion, but affirm the trial court’s judgment regarding child support upon the reasoning in Young.

Fees

The only evidence regarding an award of attorney’s fees was that the wife had paid $400 to her attorney, which is inadequate evidence of the reasonable value of the services of her attorney. The trial court will not be reversed for failing to grant relief for which the evidence, or a substitute for evidence, such as a stipulation, was insufficient. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980); Young v. Young, supra.

The wife’s application for an attorney’s fee upon appeal is denied. Young v. Young, supra; Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978).

Conclusion

We find that the judgment was supported by credible evidence, and it is our duty to affirm regardless of our own view of the testimony or whether we would have reached a different result had we been the trial judge. Young v. Young, supra.

We affirm.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Clyde L. RUTHERFORD v. CONCORD FIRE DISTRICT, An Incorporated Fire District.
    Civ. 2794.
    Court of Civil Appeals of Alabama.
    Sept. 23, 1981.
    John L. Cole, Birmingham, for appellant.
    No brief for appellee.
    William W. Conwell and Terry W. Gloor of Foster & Conwell, Birmingham, for Jefferson County Fire Dist. Ass’n, amicus curiae.
   HOLMES, Judge.

The plaintiff-Concord Fire District sued the defendant-Clyde L. Rutherford seeking to recover unpaid fire service charges along with a late penalty and attorney’s fees. The total of these charges and fees was $134.67.

The action was initially brought in the District Court of Jefferson County. There, judgment was rendered in favor of the plaintiff. The defendant appealed to the circuit court.

The plaintiff, in circuit court, made a motion for summary judgment. The summary judgment motion was submitted to the trial court on affidavits and oral testimony, all of which are contained in the record before this court. The trial court thereafter rendered judgment in favor of the plaintiff in the amount of $134.67.

The defendant next filed a motion for “rehearing.” This motion was denied and defendant appeals to this court.

The defendant, through able counsel, raises several issues in brief before this court. All of the issues relate directly or indirectly to the constitutionality of the acts which created the plaintiff-fire district and the acts which set out the authority of the fire district. These issues at best were raised for the first time in Rutherford’s “motion for rehearing.”

We note at the outset that Rutherford’s “motion for rehearing” is not a paragon of clarity in that it alleged only generally that the acts are unconstitutional. The Alabama Supreme Court has previously indicated that when challenging the constitutionality of a statute, the constitutional infirmities must be specified unless the act is patently unconstitutional. Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021 (1910).

In any event, this court in Burton v. Burton, 379 So.2d 617, 618 (Ala.Civ.App. 1980), stated the following:

It has long been the practice of our courts to refuse to hear an attack on the constitutionality of a statute when it is not raised in a timely manner at the trial on the merits. Caylor v. Caylor, 344 So.2d 173 (Ala.Ciy.App.1977). Thus, we will not allow a party to raise such an issue for the first time in a motion for new trial or on appeal. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975).

This court, in this instance, reaffirms what was said in Burton.

This case is due to be affirmed.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    Jewel E. Smith HOLCOMB v. Raymond F. SMITH, Jr.
    Civ. 2812.
    Court of Civil Appeals of Alabama.
    Sept. 23, 1981.
    Terry T. Bush, Rainsville, for appellant.
    Robert G. Wilson of Scruggs & Wilson, Fort Payne, for appellee.
   WRIGHT, Presiding Judge.

May a divorce decree incorporating an agreement that the husband pay to the wife one-half of his monthly military retirement pay be modified upon petition of the husband upon remarriage of the wife?

The trial court held such payment to be periodic alimony and terminated it because of the remarriage of the former wife. We affirm.

The parties were married for twenty-six years. The husband retired from the Navy in 1967, after twenty years of service. During his military career, the family lived in California, Pennsylvania, Florida, Georgia and Alabama, with the majority of time spent in California. The parties were divorced March 12, 1979, in Alabama. The agreement between the parties, which was incorporated in the divorce decree, provided, in part, “that Raymond F. Smith, Jr., shall pay to Jewel E. Smith one-half of his retirement check. . . . ” Subsequent to the wife’s remarriage on February 2, 1980, the husband petitioned the trial court to modify that divorce decree to relieve him of the obligation to pay the wife one-half of his retirement check. He contended that the payment amounted to periodic alimony and, thus, was modifiable upon proof of changed circumstances. The wife answered that the payment was a property settlement and not subject to modification. The court granted the petition and released the husband from payment. The wife appeals.

The contention of the wife that the retirement was hers as well as her husband’s is made to no avail. The United States Supreme Court recently held in McCarty v. McCarty, - U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) that retired pay of military retirees is the “personal entitlement” of the retiree and is not subject to community property principles.

The agreement of the parties incorporated in the divorce decree does not clearly set out the nature of the payment to the wife of one-half the government retirement check. This court held in Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979), before McCarty, that an award of retirement benefits could not be treated as either a property settlement or alimony in gross. We held that Mr. Kabaci’s retirement benefits, however, could be used as a source of income from which to pay periodic alimony. 373 So.2d at 1146. The court below, in an ore tenus hearing, found the payment in this case to be periodic alimony and removed it due to the remarriage of the wife. We find no error in that finding.

The wife’s contention that she was denied equal protection of the law under the fourteenth amendment of the Constitution of the United States is not well taken. The plight of the ex-spouse of a retired service person is addressed in McCarty, 101 S.Ct. at 2742.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HARRIS, Presiding Judge. BOOKOUT, Judge,

text:
    Michael HOOD v. CITY OF BESSEMER. William HOOD v. CITY OF BESSEMER.
    6 Div. 149, 6 Div. 221.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Jan. 20, 1981.

      David A. Sullivan, Birmingham, for appellant.
    J. H. McEniry, III, Bessemer, for appel-lee.
   HARRIS, Presiding Judge.

Michael Hood was convicted in the Municipal Court of Bessemer, Alabama, in March of 1979, on two charges, (1) assault and battery, and (2) resisting a lawful arrest. On the assault and battery charge he was assessed a fine of five hundred dollars and costs. He was also sentenced to six months hard labor for the City of Bessemer. On March 22,1979, he posted a five hundred dollar surety bond and appealed his conviction to the Bessemer Division of the Circuit Court of Jefferson County. He demanded a jury trial on the bond. He was convicted on the charge of resisting arrest and assessed a fine of two hundred dollars and costs. He was sentenced to jail for 22 days for the non-payment of the fine. He appealed this conviction to the Bessemer Division of the Circuit Court of Jefferson County by posting a surety bond in the amount of three hundred dollars and demanded trial by a jury.

His de novo trial in the circuit court was held in August of 1979. The jury returned a verdict of guilty as charged for resisting arrest and fixed the fine at five hundred dollars. The jury also returned a guilty verdict on the assault and battery charge and fixed the fine at five hundred dollars. As additional punishment the court sentenced appellant to six months hard labor for the City of Bessemer on each charge but ordered that the two sentences run concurrently.

Appellant, William Hood, was convicted in the Municipal Court of Bessemer, Alabama, of assaulting a police officer. He was assessed a fine of five hundred dollars and costs, and he was sentenced to six months hard labor on the streets of the City of Bessemer. On March 22, 1979, he appealed this conviction to the Bessemer Division of the Circuit Court of Jefferson County and posted a surety bond in the amount of five hundred dollars. He demanded a trial by jury.

His de novo trial in the circuit court was held on December 4, 1979. The jury returned a verdict of guilty as charged and assessed a fine of one dollar against him. As additional punishment the court sentenced him to 60 days hard labor for the City of Bessemer. He gave notice of appeal and his bond was set at $1,000.00.

Both of these appeals were consolidated and only one brief was filed by the parties for these appeals. We will write one opinion to govern both appeals as the issues presented are essentially the same.

6 Div. 149 — -Michael Hood.

When this case was called for trial the attorney for the City of Bessemer, Honorable Jack H. McEniry, filed in open court and served appellant and his counsel copies of the following complaints:

whose name is otherwise unknown, did violate Section 116 . Chapter 15 of the Bessemer City Code, in this:
“That he did, on to-wit, the 11th day of February, 1979, at or near 19-B Shades Street, knowingly or wilfully oppose or resist Officer J. L. Holdridge of the City of Bessemer while said officer was making or attempting to make a lawful arrest.
“And said City of Bessemer avers that said offense was committed within said City or within the police jurisdiction thereof, and that said Section of said Code reads in part as follows:
Sec. 15-116. Resisting arrest.
“(a) No person shall knowingly or wilfully oppose or resist any officer of the City in serving, executing, or in attempting to serve or execute any legal process, or in making or attempting to make any lawful arrest, or in the discharge of any lawful duty.
“And the said City of Bessemer avers that the aforesaid Section and Chapter of said Code was regularly and legally adopted as is required by law, and is a rule of conduct or regulation prescribed and required by the City of Bessemer, and that said Section and Chapter of said Code was in full force and effect at the time of the Commission of the offense herein complained of.
/s/ J. H. McEnirv Attorney for City of Bessemer”
whose name is otherwise unknown, did violate Section 121 . Chapter 15 of the Bessemer City Code, in this:
“That he did, on, to-.wit, the 11th day oi February, 1979, at or near 19-B Shades Street, strike J. L. Holdridge with his fist.
“And said City of Bessemer avers that said offense was committed within said City or within the police jurisdiction thereof, and that said Section of said Code reads in part as follows:
Sec. 15-121. Assault and Battery.
“No person shall commit an assault or an assault and battery upon another.
“And the said City of Bessemer avers that the aforesaid Section and Chapter of said Code was regularly and legally adopted as is required by law, and is a rule of conduct or regulation prescribed and required by the City of Bessemer, and that said Section and Chapter of said Code was in full force and effect at the time of the Commission of the offense herein complained of.
/s/ J. H. McEnirv Attorney for City of Bessemer.”

Appellant pleaded not guilty to the charges laid in the complaints and the trial began.

Police Officer John Grimes testified that, on the late afternoon of Sunday, February 11, 1979, he and his partner, Police Officer James Holdridge, were on routine patrol when they received a radio dispatch to proceed to 19-B Shades Street in the Jonesboro area of the City of Bessemer. The dispatch was a “10 — 35” code call which could mean almost anything. The officers were not given any other information in the radio dispatch and they proceeded to that address. When they arrived at 19-B Shades Street they saw an unidentified woman standing on the porch and the officers asked her if she had called the police. She replied that she had not called the police and “that she didn’t even like the police.” Officer Grimes then picked up the radio and called headquarters and told the dispatcher what the woman told them and requested to be put back in service and they drove away. After driving about a half of a block the officers received another dispatch directing them to return to that address and see if the woman was a Christine Sturdi-vant. They returned to that address and asked the same woman if she was Christine Sturdivant and she said no. The officers started to leave again when a car pulled behind their patrol car and began sounding the car horn.

The woman who drove behind the patrol car was Christine Sturdivant and she got out of the car and walked to the patrol car and identified herself. She started telling the officers that she and William Hood were divorced and he had their child and refused to give the child back to her. At this time William Hood and his brother, Michael Hood, appeared on the front porch of the dwelling at 19-B Shades Street and were standing side by side. Officer Grimes asked Christine Sturdivant if they were legally divorced and before she could answer William Hood started cursing. He told Sturdivant to get “her G.D. a_ out of there,” and told the officers “to take their M.F. a’s out too.” At that time Officer Grimes walked up on the porch beside William Hood and asked him to “quieten down until we got the situation settled.” William Hood told Officer Grimes, “He didn’t have to do a_thing,” and struck officer Grimes in the eye, knocking him over the railing and he ended up face down on the ground with William Hood on top of his back where he remained for several minutes. When William Hood hit Officer Grimes, Officer Holdridge started up on the porch and was struck by Michael Hood and they began to struggle and fight.

During the fight a crowd of people gathered, estimated to be 25 to 30, and they began to hit, kick and stomp Officer Grimes while he was held prostrate and helpless by William Hood. One woman tried to take Officer Grimes’s revolver out of his holster, saying, “Get the pig’s gun and shoot him.”

Officer Holdrige managed to get away from Michael Hood and went to the patrol car and radioed for help. He then returned to Officer Grimes and pulled William Hood off the back of Grimes. A back-up unit arrived in about five minutes with the blue light and siren on. The crowd of people dispersed with some of them leaving the premises and Michael and William Hood ran into the house at 19-B Shades Street and barricaded the door. Police Officers Smith and Johnson arrived on the scene in response to the call from Officer Holdridge. The officers forced open the door and Officer Smith was the first to enter the house and he saw William Hood with what appeared to be a shotgun in his hand. He exclaimed, “Look out he has a gun,” but it turned out to be a broom handle and William Hood struck Officer Smith with the broom handle. At the same time Michael Hood jumped on Officer Johnson. Several other police officers arrived at the scene and the Hood brothers were subdued. They were arrested, put in a patrol car and transported to headquarters where Michael Hood tried to escape. He was soon apprehended by another officer and returned to the Bessemer jail.

Appellant did not testify in his behalf. It was his right not to take the witness stand. It may be that he did not want the jury to know that he had previously been convicted for the possession of marijuana. He was granted probation and that probation was revoked based upon the offenses committed in this case.

It was admitted that Officers Grimes and Holdridge did not have an arrest warrant for either of the Hood brothers when they went to 19-B Shades Street to investigate a complaint. Michael and William Hood were arrested for offenses committed in the presence of the officers.

6 Div. 221 — William Hood.

When this case was called for trial in the circuit court the attorney for the City of Bessemer filed in open court and served appellant and his counsel with a copy of the following complaint:

whose name is otherwise unknown, did violate Section 121 . Chapter 15 of the Bessemer City Code, in this:
“That he did, on, to-wit, the 11th day of February, 1979, at or near 19-B Shades Street, strike Officer Johnny Grimes with his fist.
“And said City of Bessemer avers that said offense was committed within said City or within the police jurisdiction thereof, and that said Section of said Code reads in part as follows:
Section 15-121 Assault and Battery.
“No person shall commit an assault or an assault and battery upon another.
“And the said City of Bessemer avers that the aforesaid Section and Chapter of said Code was regularly and legally adopted as is required by law, and is a rule of conduct or regulation prescribed and required by the City of Bessemer, and that said Section and Chapter of said Code was in full force and effect at the time of the Commission of the offense herein complained of.
/s/ J. H. McEnirv Attorney for City of Bessemer.”

Appellant pleaded not guilty to the charge laid in the complaint and the trial began.

The facts set forth hereinabove are applicable to this case and will not be repeated. However, William Hood testified in his case. According to his testimony he lived at 2114 6th Avenue in Bessemer and was employed at Pullman Standard.

He stated that, on February 11, 1979, he received a telephone call from Christine Sturdivant to whom he was formerly married. A daughter was born to this marriage and when they were divorced custody of this child was awarded to the mother with visitation rights given to William Hood. Under the divorce decree William Hood was to have custody of the child from Friday afternoon until Sunday afternoon each week. When Christine called on the afternoon of February 11, 1979, William Hood told her she could not get the child. Christine told him if he did not return the child to her she was going to bring the police to his house to pick up the child. He further testified that the police came to his house twice on Sunday afternoon but he was in the house with the child and the woman he was living with and he remained in the house. The police car left but soon returned and he came out of the house to the front porch. About that time his ex-wife pulled up behind the patrol car and got out of her car. He told her that she could take her_ and the police and get away from his house. He further testified that, “Officer Grimes and Officer Holdridge had come closer to the porch, but Officer Grimes made one step up on the porch, and he told me to shut up, boy, or I will shut you up, and I proceeded to tell him that I knew my right, I was at home, I wasn’t bothering anybody and he could just go . . . I turned to go into the house when he struck me with his night stick in the back of my head. When he struck me, I just turned around and grabbed him and bounced off the wall and we went over the railing of the porch into the front yard. I had him down, face down on the ground."

He further stated that his brother, Michael, and Officer Holdridge pulled him off Officer Grimes. He said when the officers got through beating him at the police station he had two teeth missing but they were all false teeth; that he was in the hospital twelve days and had minor surgery on his left eye; that his whole face was swollen but he did not have a concussion.

On cross-examination he admitted that his ex-wife called him earlier and asked him to return the child to her and he told her he was not going to give the child back to her. He said his ex-wife told him that she was going to bring the police to help her get her child back. In sum, he testified that he did not curse the police officers and that when he entered the house after the difficulty with Officer Grimes he did not arm himself with a broom handle. In short, he was the only witness who was telling the truth about the occurrences at his house on Sunday afternoon, February 11, 1979. He made no claim that his injuries which caused him to be hospitalized for twelve days occurred at his home but occurred after he was transported to the Bessemer jail.

Appellant’s counsel contends that the circuit court never acquired jurisdiction to try these cases because the City of Bessemer failed to comply with the provisions of Section 12-14-70, Code of Alabama 1975, which mandates the filing of all documents and papers necessary to prosecute a misdemeanor in the circuit court within 15 days after a timely appeal is taken, and having never acquired jurisdiction the judgments of conviction were void as a matter of law.

Section 12-14-70, 1975 Code provides, in pertinent part, as follows:

“(d) When an appeal has been taken, the municipality shall file the notice and other documents in the court to which the appeal is taken within 15 days, failing which the municipality shall be deemed to have abandoned the prosecution, the defendant shall stand discharged, and the bond shall be automatically terminated.”

Section 12-22-110, 1975 Code, also provides for an appeal from the judgment of conviction in a municipal court. This section reads as follows:

“When an appeal is taken to a circuit court in any criminal case from a district court or municipal court, the appeal shall be returned to the circuit within 10 days following the day on which the appeal was taken and shall be triable at the next session of the court.” (Emphasis supplied).

The above quoted sections are conflicting but we do not deem it necessary to determine which section controls appeals from a municipal court. We feel that both sections are directory. A municipal court clerk’s failure to file a copy of proceedings had in such court in the circuit court within the statutory time is not ground to quash the circuit court proceedings on appeal from a conviction of a misdemeanor in a municipal court. Tribble v. State, 28 Ala.App. 567, 190 So. 101.

There was no motion to quash filed in the circuit court and this matter cannot be raised for the first time on appeal even if such issue contained any merit.

In Thompson v. State, 26 Ala.App. 264, 157 So. 886, the Court of Appeals in construing Section 12-22-110, supra, as it appeared in the Codes of 1923 and 1940, held that this section is directory only, and, “upon a failure on the part of the inferior court to send up the appeal, renders such court subject to the supervisory power of the court to which the appeal is taken, and the only effect of a failure to send up the record within the time named is to delay the trial in the circuit court until such record can be procured.”

In Clark v. City of Mobile, Ala.Cr.App., 357 So.2d 675, certiorari denied, Ala., 357 So.2d 680, this court held that a judgment on trial de novo is not rendered void for want of jurisdiction where the original affidavit is not in the record. Jurisdictional recitals in the appeal bond(s) give the court to which the trial de novo “appeal” is taken jurisdiction of the case(s). In addition, as we have stated, the City Attorney filed in open court and served appellants and their counsel with complaints charging them with the crimes for which each stands convicted and the record(s) affirmatively show appellants pleaded not guilty to the charges spelled out in the complaints.

The City Ordinances of the City of Bessemer under which appellants were charged and convicted were duly adopted, properly certified, and introduced into evidence. There is no contention to the contrary.

Appellants contend that they were unlawfully arrested without a warrant. We do not agree.

Police officers may arrest any person without a warrant, on any day and at any time, for the violation of a City ordinance committed in their presence. Coursey v. City of Andalusia, 24 Ala.App. 247, 134 So. 671; Moon v. State, 48 Ala.App. 127, 262 So.2d 615; Section 15-10-3, 1975 Code of Alabama; Ala. Dig. Arrests, Key No. 63.3.

The authorities cited by appellants are not in point as these authorities deal with search warrants. These are not search warrant cases. The arrests grew out of public offenses committed in the presence of the arresting officers.

The refused written charges, stating correct principles of law, were fully and adequately covered in the court’s oral charge to the jury. The other refused charges were abstract, misleading or argumentative and were properly refused.

We have carefully searched the records for errors injuriously affecting the substantial rights of appellants and have found none. The judgments of conviction in both cases are, in all things, affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., concurs specially with opinion, in which BOWEN, J., joins.

BOOKOUT, Judge,

concurring specially:

I concur in the result reached, but I do not agree with the statements in the majority opinion to the effect that both § 12-14-70(d) and § 12-22-110, Code of Ala. 1975, are directory only and can therefore be ignored on appeal.

Section 12-22-110, originally Act No. 391, Acts of 1915 (Title 15, § 358, Code of Ala. 1940), has been held to be directory in Tribble and Thompson, supra. That is because that statute contains no penalty or sanction for noncompliance. However, § 12-14-70 is entirely different. It was enacted originally as a part of the Judicial Implementation Act (Act No. 1205, § 8-105, Acts of Ala. 1975) and governs all appeals from municipal courts.

Article 8 of Act 1205, supra, was enacted to cover the whole subject matter of municipal courts and appeals therefrom and was intended to supersede and take the place of all prior laws on that subject, thereby repealing by implication Title 15, § 358, supra. Fletcher v. Tuscaloosa Fed. Sav. and Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975). However, upon drafting the new 1975 Code (adopted October 31, 1977), the repealed section was carried over into the new code, probably inadvertently, as § 12-22-110, supra. Therefore, we are faced with two code sections which, although not completely contradictory, contain two different time requirements.

Section 12-22-110, which applies to appeals to circuit court from a district court or municipal court, merely directs that “the appeal shall be returned to the circuit court within 10 days.” However, § 12-14-70(d) provides in no uncertain terms that if the municipality has not filed the notice of appeal and other documents in the circuit court within 15 days, “the municipality shall be deemed to have abandoned the prosecution, the defendant shall stand discharged, and the bond shall be automatically terminated.”

There is no equivocation in the wording of § 12-14-70(d). It vests no discretion in the circuit court in ending the prosecution and dismissing the case. It speaks clearly in mandatory terms of “shall” and makes termination of the bond automatic. The statute is not merely directory, but is mandatory for it contains a clear penalty or sanction for noncompliance. Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308 (1962).

I concur in the result reached because the record does not clearly show when “the notice [of appeal] and other documents” were filed, if ever. The appellant agreed to be tried on the original affidavits or complaints, and the fact that they are not in the record on appeal does not void the proceeding in circuit court below. Clark v. City of Mobile, supra. An appellant is under the duty to see that his appeal is perfected in this court according to the requirements of the statutes and rules of court. Orum v. State, 286 Ala. 679, 245 So.2d 831 (1971). If documents necessary to a valid appeal de novo to circuit court are not filed with that court within the prescribed time, copies of those documents showing the filing date should appear in the record, and it is the duty of the appellant to see to this if the matter is to be properly brought to this court’s attention. Assertions in brief or arguments of counsel transcribed below will not suffice. Smith v. State, Ala.Cr.App., 346 So.2d 465 (1976).

BOWEN, J., joins in the above.