text:
    Pat N. WILSON v. Rose Marie Kelly WILSON.
    No. 52101.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    James G. McIntyre, Jackson, for appellant.
    Bob Owens, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss and Paul G. Alexander, Chancellors.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    TRIANGLE REFINERIES, INC. v. W. Hampton KING, Auditor of the State of Mississippi, et al.
    No. 52100.
    Supreme Court of Mississippi.
    Sept. 3, 1980.

      Dossett, Magruder & Montgomery, Charles L. Brocato, Lauch M. Magruder, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen., by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, for appel-lees.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Hinds County sustaining a demurrer to the original and amended bills of complaint filed by Triangle Refineries, Inc. against W. Hampton King, Auditor of the State of Mississippi, A. F. Summer, Attorney General of the State, and Jamie Howell, Motor Vehicle Comptroller of the State.

Triangle Refineries, Inc. is a bonded distributor of gasoline as defined in section 27-55-5(f) Mississippi Code Annotated (Supp.1973). Triangle filed a claim with the Motor Vehicle Comptroller of the State of Mississippi under section 27-55-45 Mississippi Code Annotated (1972) for a refund of gasoline excise taxes paid by it. The date the claim was filed is not shown by the record, but from correspondence attached to Triangle’s bill of complaint we conclude that the claim was filed before March 17, 1978.

On May 9, 1978, Triangle filed a claim with the State Auditor pursuant to the provisions of section 27-73-1 Mississippi Code Annotated (1972) for a refund of gasoline excise taxes paid to the State of Mississippi during the calendar years 1975 and 1976 in the amount of $1,394,768.52, claiming the taxes were erroneously paid.

On June 28, 1978 the Attorney General, the Motor Vehicle Comptroller and the State Auditor denied the claim on the ground that it was barred by section 27-55-19 Mississippi Code Annotated (1972) which requires distributors of gasoline to file claims for exemptions within one year from the date of sale or delivery. The letter stated:

As of this date, the audit of this claim for refund has not been completed by the State Auditor of Public Accounts and the Motor Vehicle Comptroller. The result of the audit will, of course, be made available to Triangle as soon as same is finalized.

The record does not reflect that the audit of Triangle’s claim for refund has been completed. If not, the officials charged with the duty should complete the audit forthwith.

Triangle filed a bill of complaint on June 30, 1978 against the State Auditor, Motor Vehicle Comptroller and Attorney General in two counts. In the first count, Triangle sought recovery by appealing from the decision of the Motor Vehicle Comptroller under section 27-55-41. In the second count, which was in the alternative, Triangle sought recovery by appealing under section 27-73-1 Mississippi Code Annotated (1972).

Section 27-55 — 41 authorizes an appeal by any person aggrieved by an order or act of the Comptroller in the administration of Article 1 of Chapter 55 where no specific remedy is specified in Article 1. The section provides in part:

The aforesaid appeal shall be tried by the court as a preferred case on the record made at the hearing before the comptroller.

Section 27-73-1 provides that a taxpayer aggrieved by the disapproval of his claim for refund may, within six months, file a petition for review in the chancery court. The section provides in part the following:

All such petitions for appeal and review shall be filed in the chancery court of the county in which the money for which refund is claimed was originally paid, and shall be accompanied by a bond in the sum of $500.00 conditioned to pay all costs which may accrue in such case, which bond shall be approved by the clerk of the said court. Upon the approval of the bond, the chancery clerk shall give the attorney general and the auditor of public accounts notice, as required by law, of the filing of the petition. It shall be the duty of the said auditor to promptly transmit to the court in which said appeal is pending a certified copy of the entire record of the claim as shown by the files in his office, which record shall be docketed by the clerk in the cause, and the controversy shall be tried by the court on such record.

The transcript of the record does not contain any record of the hearing before the Motor Vehicle Comptroller, nor does it contain a certified copy of the entire record of Triangle’s claim as shown by the files in the office of the State Auditor.

The only remedy afforded a taxpayer who claims a refund of gasoline excise taxes which has been denied by the proper state officials is by appeal on the record made before the respective state officials. The chancery court, under the above statutes acts as an appellate court. Without the record, the chancery court had no jurisdiction to entertain the demurrer filed by the defendants.

We therefore reverse and remand without prejudice so the proper appellate record may be filed in the Chancery Court and the case then be considered by the Chancery Court sitting as an appellate court on the record made before the Motor Vehicle Comptroller and State Auditor.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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


author: ROBERTSON, Presiding Justice,

text:
    HIGHLANDS INSURANCE COMPANY and Amco Underwriters v. Mrs. Jean Davis McLAUGHLIN, Administratrix of the Estate of Ralph E. McLaughlin, Deceased.
    No. 52118.
    Supreme Court of Mississippi.
    Sept. 3, 1980.

      Watkins & Eager, James L. Carroll, Virginia T. Munford, Jackson, for appellants.
    Cain, Cain & Ritchey, J. M. Ritchey, Canton, for appellee.
    Before ROBERTSON, WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Highlands Insurance Company and Amco Underwriters appeal from a judgment for $8,507.77 rendered against them and in favor of Jean Davis McLaughlin, Administra-trix of the Estate of Ralph E. McLaughlin, deceased, by the Circuit Court of Madison County, sitting without a jury.

Highlands, through Amco, issued a fire and extended coverage insurance policy to Charlie Gray Auto Mart, Canton, Mississippi, covering the building occupied by the Auto Mart, and the contents and equipment of the Mart located in the building.

The first page of the policy contained this mortgage clause:

Subject to the provisions of the mortgage clause attached hereto, loss, if any, on building items, shall be payable to:
Ralph McLaughlin
710 East Kathy Circle
Canton, MS 39046
(Emphasis added).

The auto repair shop was damaged by fire on November 18, 1977. The building sustained damages of $8,507.77, and the contents and equipment damages of $4,647.

A draft was issued by Highlands for $13,-154.77, the total of damages to the building and contents, which draft was made payable to Charlie Gray and Ralph McLaughlin. McLaughlin refused to endorse the draft and called on Noble and Fortenberry, Inc., soliciting agents for Highlands, to issue a separate draft for the damages to the building only. Highlands then issued its draft payable to Charlie Gray Auto Mart for damages to the contents only, and a separate draft for $8,507.77 for damages to the building only, which draft recited: “Upon acceptance pay Charlie Gray Auto Mart; Ralph McLaughlin”. This draft was delivered to Charlie Gray. He erased Ralph McLaughlin’s name as joint payee, endorsed the draft “Charlie Gray Auto Mart,” cashed it, and used the entire proceeds for Charlie Gray only. Ralph McLaughlin never received any part of these proceeds.

When McLaughlin demanded payment from Highlands Insurance Company, Highlands refused to pay, contending that it had made the settlement draft for $8,507.77 payable to both Charlie Gray and Ralph McLaughlin, that the draft had been paid, and McLaughlin should look to Charlie Gray for recovery. McLaughlin then brought suit against Highlands, and, upon his death, the suit proceeded to judgment in the name of Mrs. Jean Davis McLaughlin, Adminis-tratrix of the estate of Ralph E. McLaughlin, Deceased.

Appellants assign as error:

I. The trial court erroneously based its judgment upon a finding which was outside the issues as framed by the pleadings and proof below, when it held that Highlands breached its duty to inspect the draft for proper endorsements and thereby was liable to McLaughlin.
II. Moreover, the trial court erred in applying the substantive law by holding that Highlands breached its legal duty toward McLaughlin.

We affirm.

The policy itself, on the first page, provided:

“Subject to the provisions of the mortgage clause attached hereto, loss, if any, on building items, shall be payable to:
Ralph McLaughlin
710 East Kathy Circle
Canton, MS 39046”
(Emphasis added).

This constituted a separate and independent contract with the mortgagee, McLaughlin, only. National Security Fire and Casualty Co. v. Mid State, 370 So.2d 1351 (Miss.1979).

This mortgage clause was required by this provision of MCA section 83-13-9 (1972):

“Each fire insurance policy on buildings taken out by a mortgagor or grantor in a deed of trust shall have attached or shall contain substantially the following mortgagee clause, viz: Loss or damage, if any, under this policy, shall be payable to (here insert the name of the party), as -mortgagee (or trustee), as_in-terest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor . ” (Emphasis added).

In Hartford Fire Insurance Co. v. Associates Capital Corp., 313 So.2d 404 (Miss.1975), this Court said:

“On the other hand, where the ‘union’ or ‘standard mortgage clause’ is included in an insurance policy, the mortgagee is entitled to the proceeds of the policy, and the mortgagee’s right to recover will not be invalidated by the act or negligence of the mortgagor of the insured’s property. That is to say, no act or default of any person other than the mortgagee or those claiming the proceeds under the mortgagee shall affect the rights of the mortgagee to recover in case of loss. See Annot., 24 A.L.R.3d 436, 439, § 3 (1969); 43 Am.Jur.2d Insurance § 768, at 750 (1969).” 313 So.2d at 407. (Emphasis added).

Highlands contends that, when McLaughlin agreed that Gray’s name could also be included as a joint payee in the draft for $8,507.77, McLaughlin thus impliedly agreed that the draft could be delivered to Charlie Gray only. Highlands contends that when the draft was delivered to Gray it was delivered to McLaughlin’s agent. No where in its answer does Highlands plead that Gray was the authorized agent of McLaughlin to receive the draft for the fire loss. Highlands, in its answer, merely says:

“[Tjhat a check in the amount of $8,507.77 was tendered and delivered to Gray, the owner, as insured; that Charlie Gray never gave the proceeds of such check over unto Ralph E. McLaughlin, but instead removed Ralph E. McLaughlin’s name as payee from the face of the check and converted the proceeds of such check to his own uses.”

Neither was there any proof offered that Gray was the agent of McLaughlin.

The burden of proving an agency relationship rests squarely upon the party asserting it, in this case Highlands. The mere fact that McLaughlin agreed that Gray’s name could be included in the draft as a joint payee does not justify Highland’s conclusion that Gray was thus constituted by McLaughlin as his agent for delivery. United States Fidelity and Guaranty Co. v. Arrington, 255 So.2d 652 (Miss.1971).

When Highlands disregarded the express provisions of its separate and independent contract with McLaughlin by delivering its settlement draft to Gray only, it did so at its own risk. It took a chance and lost, due to Gray’s dishonesty and criminal conduct.

The trial court correctly decided that Highlands breached its legal duty to McLaughlin and that Highlands should pay the injured party for its breach of duty.

On his cross-appeal, the trial court correctly decided that McLaughlin was not entitled to interest on the amount due from December 29,1977, the date of the draft to Charlie Gray Auto Mart and Ralph McLaughlin, because there was a legitimate and justifiable dispute between Highlands and McLaughlin. Grace v. Lititz Mutual Insurance Company, 257 So.2d 217 (Miss.1972).

The judgment of the trial court is, therefore, affirmed on direct and cross appeals.

AFFIRMED.

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


text:
    Otis W. LIVINGSTON et ux. v. William A. McMULLAN et al.
    No. 52119.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    John Michael Sims, Heidelberg, Robert H. McFarland, Bay Springs, for appellants.
    Oates & Houston, Marvin Oates, Bay Springs, for appellees.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

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

AFFIRMED.


text:
    Robert G. HOLMES, Jr. v. Masami Holmes NOLAN.
    No. 52115.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    Jimmy D. McGuire, Gulfport, for appellant.
    Ladner & Emil, W. Daniel Hinchcliff, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

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

AFFIRMED.


text:
    Dr. Kenneth W. SMITH v. Linda E. SMITH.
    No. 52044.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    A. M. Murphy, Lucedale, for appellant.
    Linda E. Smith, pro se.
   Appeal from Chancery Court, George County; Robert H. Oswald, Chancellor.

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

AFFIRMED.


text:
    Willie James STEWART v. Eddie LUCAS, Warden, Mississippi Department of Corrections.
    No. 52262.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    Willie James Stewart, pro se.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

AFFIRMED.


author: TORBERT, Chief Justice.

text:
    Mary HARDIN and Hardin & Company, Inc. v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY.
    78-657.
    Supreme Court of Alabama.
    May 23, 1980.
    Rehearing Denied Aug. 22, 1980.
    Rodney A. Max and Lee R. Benton, Dena-burg, Schoel, Meyerson & Ogle, Birmingham, Roger C. Suttle of Inzer, Suttle, Swan & Stivender, Gadsden, for appellants.
    Howard B. Warren of Torbert, Turnbach & Warren, P. A., Gadsden, for appellee.
   TORBERT, Chief Justice.

This appeal arises from a case in which issues were resolved in separate trials, Mary Hardin, et al., obtaining in the first trial a jury verdict and damages against Goodrich Associates. In the second trial Mary Hardin, et al., sought declaratory relief against John Hancock Mutual Life Insurance Company, Inc. (“John Hancock”). The second trial was before the Etowah Circuit Court without a jury, and it is only from the judgment entered in that trial that this appeal is taken.

The facts as found in the trial court’s order are as follows:

Goodrich Associates (a New York general partnership which developed and initially owned the Mason’s Shopping Center) originally leased certain property in the shopping center to Mason’s Stores, Inc., on June 24, 1966. In November 1967, Goodrich mortgaged the property on which Mason’s was located to John Hancock. As additional security the Goodrich-Mason’s lease was assigned to John Hancock.

On March 31, 1967, Goodrich leased the building adjacent to and contiguous with the Mason’s building to Chastain-Roberts Co., Inc., for use as a retail super market. On May 7, 1974, Chastain sub-leased the super market premises to Hardin and Co., Inc. Then Hardin orally sublet the store to Piggly Wiggly of North Gadsden, Inc. The building leased to Chastain-Roberts was not included in the property described in the Goodrich Associates mortgage to John Hancock of the Mason’s property. The Goodrich-Chastain lease was not recorded. On December 27, 1974, Mason’s filed for bankruptcy and Hancock foreclosed on the Goodrich mortgage and purchased the Mason’s property at the foreclosure sale.

The Goodrich-Chastain lease contains a provision that gave Chastain the exclusive right to operate the demised premises as a super market within the shopping center. An addendum to section 7 of that lease provided that the exclusivity clause does not apply to any “mortgagee of the Demised Premises, nor to any mortgagee of the Demised Premises who shall be in possession of the Demised Premises by foreclosure or deed in lieu of foreclosure.”

This appeal centers upon the counterclaims for declaratory relief by Hardin and Co., Inc., against John Hancock, that is, whether the exclusivity clause in the Goodrich-Chastain lease is enforceable against John Hancock.

The trial court entered its decree, paragraph 7 thereof providing:

7. The Court holds that while John Hancock Mutual Life Insurance Company may not have had actual or constructive notice, of the provisions of the Chastain-Roberts lease, that by an analogy of the facts in the instant case to those in the case of Jefferson County v. Mosley, 284 Ala. 593, 226 So.2d 652, that the provisions in the Mason’s lease, relating to not operating a supermarket therein, would be sufficient to excite attention and to impose on John Hancock Mutual Life Insurance Company a duty to inquire further which would lead it to the restrictions in the Chastain-Roberts lease. The Court makes no finding as to whether the provisions in the Chastain-Roberts lease are covenants running with the land or whether they are personal covenants as it does not feel that this is necessary for a determination of the issues in this case. The Court does hold, that even if it is ruled that John Hancock Mutual Life Insurance Company had notice of the provisions of the Chastain-Roberts lease, under its duty to inquire on the rational [sic] of Jefferson County v. Mosley, supra, the Court holds that the restrictive provisions of the Chastain-Roberts lease would not apply to John Hancock Mutual Life Insurance Company, as mortgagee, in that the Court finds that the provisions of Addenda to Section 7 of the Chastain-Roberts lease prevent the restrictive covenants from applying to John Hancock Mutual Life Insurance Company. The Court holds that the restrictions and “exclusive rights” described in the lease agreement dated 31 March, 1967, between Goodrich Associates and Chastain-Rob-erts Company, Inc. have no force and effect as to the rights of John Hancock Mutual Life Insurance Company, or its successors and assigns. [Emphasis added.]

Appellants argue that the trial court misunderstood the meaning of the term “Demised Premises” in the Goodrich-Chastain lease, and that the trial court erred as a matter of law in holding that John Hancock was a “mortgagee of the Demised Premises” and thus not susceptible to the exclusive right of Hardin and Co., Inc., to operate a super market within the shopping center. We agree and reverse and remand.

In the instant case, the term “Demised Premises” was consistently used throughout the lease from Goodrich Associates to Chas-tain-Roberts to refer only to the property leased by Chastain-Roberts and not to the property leased by Mason’s Stores, Inc. The Goodrich Associates to Chastain-Rob-erts lease expressly provides:

Landlord hereby demises and leases and Tenant hereby hires and takes the following described premises situated in the City of Gadsden, County of Etowah, State of Alabama.
The building outlined in red on the plot plan attached hereto as Exhibit “A”, and hereby made a part hereof, said building being a one (1) story building having a first-floor area of approximately 12,600 square feet (hereinafter referred to as the “Demised Premises”), and being a part of a shopping Center (hereinafter referred to as the “Shopping Center”) as designated on said Exhibit “A” . [Emphasis added.]

There is no ambiguity in the above definition. The definition itself restricts its meaning to that portion of the tract leased to Chastain-Roberts. It is not the province of the court to make or remake a contract for the parties, but its duty is confined to the interpretation of a contract which they have made for themselves. Flowers v. Flowers, 334 So.2d 856 (Ala.1976). The ore tenus rule is not applicable to the trial court’s holding that the “Addenda to Section 7 of the Chastain-Roberts lease prevent the restrictive covenants from applying to John Hancock Mutual Life Insurance Company,” because that holding is based on the interpretation of an unambiguous contract.

It is well settled that the interpretation of an unambiguous contract is a question of law for the court. City of Birmingham v. I. E. Morris & Associates, 256 Ala. 273, 54 So.2d 555 (1951); Robbins Tire and Rubber Co. v. United States, 462 F.2d 684 (5th Cir. 1972); C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975).

The trial court erred as a matter of law in holding that John Hancock was a “mortgagee of the Demised Premises” and thus exempt under the provisions of the Chastain-Roberts lease from the exclusive right to operate a super market within the shopping center. We pretermit consideration of any other basis for holding John Hancock subject to the exclusivity clause.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    COTTON STATES MUTUAL INSURANCE COMPANY, a corporation, v. William A. CONNER II, and Joe Fleming, d/b/a Hinge Gate Subdivisions.
    78-610.
    Supreme Court of Alabama.
    May 23, 1980.
    After Remand Aug. 22, 1980.

      Allen Poppleton, of Bradley, Arant, Rose & White, Birmingham, for appellant.
    George A. Moore, of Johnston, Johnston & Moore, Huntsville, for appellees.

      . Justice Shores, sitting for Justice Bloodworth, has listened to the tape recording of oral argument.

   PER CURIAM.

On Rehearing

This case is put on rehearing by the Co'urt to reconsider the judgment that should be entered in this case. Although no application for rehearing was filed by the parties, a case can be put on rehearing by the Court during the term. Empire Home Loans, Inc. v. W. C. Bradley Co., 286 Ala. 449, 455, 241 So.2d 317 (1970). The opinion is revised so that it will read as follows:

This is an appeal by Cotton States Mutual Insurance Company from a judgment rendered against it in a suit on a performance bond filed by William A. Conner II, and Joe Fleming.

In October of 1976, Conner and Joe Fleming, d/b/a Hinge Gate Subdivisions, entered into a written contract with Redd Industries, Inc., for the construction of certain improvements for Hinge Gate Subdivisions. These improvements consisted of the construction of sewers, curbing, streets and gutters. The contract called for Redd Industries to complete its work within 150 calendar days or suffer liquidated damages of fifty dollars per day.

Cotton States, as surety for Redd Industries, executed and delivered a performance bond to secure Conner and Fleming against default by Redd Industries.

Conner, Joe Fleming, and their wives, borrowed money from the First Alabama Bank to buy the land upon which the subdivision was to be developed. This note has been renewed several times by the same parties.

Redd Industries experienced problems with machinery and workmen. Conner attempted to get Redd Industries to complete the work by March 28, 1977, which was the last day of the 150 day performance period. He requested Cotton States’ help in this matter on several occasions. The work was not completed within the 150 day period. On June 13, 1977, Conner wrote Redd Industries stating that they were over two months behind schedule, and that there had been adequate working days to take care of any loss of time due to the weather.

On August 11, 1977, Conner notified Cotton States that Redd Industries was in default. On September 16, 1977, Conner again notified Cotton States that Redd had defaulted and that if Cotton States would not employ another contractor, then Conner would employ one at Cotton States’ expense. Conner and Joe Fleming contracted with the Shelby Contracting Company, Inc., to complete the construction work. This new contract was made with the approval and direction of Cotton States. Work was completed on May 24, 1978.

On December 23, 1977, Joe Fleming conveyed his half-interest in Hinge Gate Subdivisions to Randall Bailey. Subsequently, Louis Fleming bought Randall Bailey’s interest in the subdivision.

The complaint named Conner and Joe Fleming, d/b/a Hinge Gate Subdivisions as plaintiffs and sought liquidated damages. The plaintiffs filed a motion pursuant to Rule 17(a), ARCP, to substitute Randall Bailey for Joe Fleming as the real party in interest. They subsequently withdrew this motion. No objection to this withdrawal was made by Cotton States.

At trial, Conner testified that he and Louis Fleming were the current owners of Hinge Gate Subdivisions. The court then allowed Louis Fleming to be added as a party plaintiff. The trial court held that the real parties in interest were Conner and Joe Fleming, d/b/a Hinge Gate Subdivisions, and granted judgment in their favor for damages.

Cotton States contends that two errors were committed by the trial court. The first was that Joe Fleming was not a real party in interest. The second was in its finding that the plaintiffs were entitled to liquidated damages for the entire delay.

Where testimony has been taken ore tenus, the findings of fact made by the trial court will not be disturbed unless clearly and palpably wrong or without supporting evidence, or manifestly unjust. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973). Upon a careful review of the record, we are of the opinion that there is ample evidence to support the trial court’s conclusion as to the amount of damages.

Rule 17(a), ARCP, states that “[e]very action shall be prosecuted in the name of the real party in interest.” The Alabama Court of Civil Appeals, in U-Haul Company of Alabama v. Turner, 355 So.2d 384 (Ala.Civ.App.1978), considered Rule 17(a), and found that

. The effect of Rule 17(a) is that the action must be brought by the person who is entitled to enforce the right claimed therein. Who has such right is a matter of substantive law of the particular jurisdiction. The purpose of the rule is to protect the defendant from subsequent action by the party actually entitled to recover and to ensure that a judgment will have res judicata effect.

355 So.2d at 386. (Citation omitted.)

The performance bond upon which Cotton States acted as surety named Conner and Joe Fleming as obligees. Joe Fleming has supposedly sold his interest in Hinge Gate Subdivisions to Randall Bailey, but nothing in the record indicates an assignment by Joe Fleming of his rights under the bond. If it is later found that Joe Fleming transferred his interest in the bond, then Cotton States could be subject to a subsequent action by Randall Bailey.

Neither Joe Fleming nor Randall Bailey testified during the trial. There is no documentary evidence conclusively establishing the true ownership of the subdivision, and there is no evidence showing an assignment, if indeed there was one, of contract rights under the bond. Upon the record before us we consider it impossible to determine who the real parties in interest are. We think the proper course is to remand the cause to the trial court to take additional evidence and make a new determination of the status of Joe Fleming and Randall Bailey.

We should not be understood as holding that Joe Fleming is not a real party in interest. We merely hold that the evidence is insufficient to make that determination. There is no need to further involve Louis Fleming as he testified at trial that he made no claim whatsoever under the performance bond.

Rule 19(a), ARCP, requires, among other provisions, that a person subject to the jurisdiction of the court should be joined as a party in the action if the absence of such party leaves any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest.

Randall Bailey was not a party to this cause at the time judgment was rendered in the trial court.

Therefore, this cause is remanded to the trial court with directions to make Randall Bailey a party to the cause pursuant to the provisions of Rule 19(a), ARCP, to take additional evidence and make a new determination of the status of Joe Fleming and Randall Bailey relative to the performance bond, and to transmit to this Court, within sixty days from this date, a report of such determination, together with a transcript of the additional evidence taken, for the further consideration of this Court.

OPINION MODIFIED ON REHEARING; REMANDED WITH DIRECTIONS.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES and EMBRY, JJ., concur.

PER CURIAM.

After Remand

This cause was remanded to the Circuit Court to make Randall Bailey a party pursuant to Rule 19(a), ARCP, and to take additional evidence and make a new determination of the status of Joe Fleming and Randall Bailey relative to the performance bond.

The Circuit Court added Randall Bailey as a party plaintiff and took additional testimony. The supplemental record is now before this Court and includes the testimony of Joe Fleming, Randall Bailey and William A. Conner II.

Joe Fleming testified that he did not assign his interest in the bond, and still makes claim under the bond against Cotton States. Randall Bailey testified that he purchased Joe Fleming’s interest in the real estate with the understanding that any proceeds from the suit on the bond would belong to Fleming. Bailey said he has no interest or claim under the bond, or against Cotton States.

We are therefore of the opinion that the trial judge is correct in adjudging Joe Fleming and William A. Conner II to be the real parties in interest.

The judgment of the Circuit Court is hereby affirmed.

AFFIRMED AFTER REMAND.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    Rufus ENGLISH, Jr. v. Ida Mae BARNES.
    78-862.
    Supreme Court of Alabama.
    June 20, 1980.
    Rehearing Denied Aug. 15, 1980.

      Michael A. Figures, Mobile, for appellant.
    W. E. Garrett Atmore, and J. Milton Cox-well, Jr., of Coxwell & Coxwell, Monroe-ville, for appellee.
   PER CURIAM.

This appeal involves a sale for division of land in Monroe County, Alabama, owned by the English family. This 160-acre tract of land was involved in the earlier case of English v. Brantley, 361 So.2d 549. (Ala.1978).

On October 17, 1977, a complaint was filed seeking to cut the timber from the land and divide the proceeds and then divide the land if possible between the owners. The plaintiffs also asked that the land be sold if it could not be equitably divided. Later plaintiffs decided they only wanted the timber cut and sold and the proceeds divided.

Ida Mae Barnes, who was an original defendant, filed an amended complaint on May 25, 1979, asking for a sale for division, naming herself as plaintiff and all the other parties as defendants. On August 7, 1979, the circuit court, after hearing evidence ore tenus, ordered that the lands in question could not be equitably divided and that a sale for division was necessary. He ordered a public sale of the property. Defendant-appellant filed a supersedeas bond to stop the land sale.

Appellant argues that the Alabama Partition Sale Statute Code, 1975, § 35-6-20, violated the due process and equal protection clauses because of the way it was used in this case. This point has been clearly settled in English v. Brantley, supra, which states:

Appellants also raise the issue of the constitutionality of Code of Ala., Tit. 47, § 186 (1940) (current version at § 35-6-20, Code 1975), which authorizes the circuit court to sell the property for division. Appellants claim that they have been denied due process of law because it was not shown at the trial level that the land could not be equitably divided in kind and because the plaintiff had testified he would accept the fair market value of his interest in the land.
The ore tenus rule applies to a trial court’s determination of whether land should be sold for division because it cannot be equitably partitioned in kind. Hicks v. Hicks, 348 So.2d 1368 (Ala.1977). The finding, of the circuit court that the property cannot be equitably divided in kind was supported by credible evidence and is not clearly erroneous. Section 186 did not prevent the appellants from purchasing the interest of the plaintiff prior to trial. This statute does not deny due process of law to appellees. It allows a co-tenant to force a sale for division only after proving the property cannot be equitably divided in kind. It provides a reasonable means of allowing all co-tenants maximum freedom in dealing with their interest in jointly owned property. [Emphasis added.]

Appellant next argues that there was insufficient proof, if any at all, that the land could not be equitably divided. Raper v. Belk, 276 Ala. 371, 162 So.2d 465 (1964), states:

Partition of land between joint owners or tenants in common is a matter of right, but the alternative right to have land sold for division is statutory, and is conditioned upon averment and proof that the property cannot be equitably divided or partitioned among them. When this condition appears, the right to sell for division is a matter of right, but if this condition is not proven, no sale for division should be ordered.

Plaintiff-appellee Ida Mae Barnes testified she was familiar with the 160 acres of land known there in the Uriah community as the John English property. She testified the timber on the land was different because some of the timber growing in the ponds is gum and some of the timber not in marshy places is pine or some oak. She testified about ponds and structures located on the land. Ida Mae Barnes gave her opinion based on personal knowledge about the possibility of equitably dividing the land.

Q Do you have an opinion as to whether or not this 160 acres could be equitably divided in kind among the various joint owners-that is, by giving each a parcel of land?
A Yes, sir, I have an opinion.
Q All right.
A And my opinion is that it cannot be equitably divided.
Q And why is that, please?
A In my opinion, there is no way to divide equitably that parcel of land and give each person his or her fair share because some of it is in different types of land. Some is farming land, some is timber land, some is ponds, branch heads and so forth.

There is evidence in the record to support the findings of fact of the trial judge. The judgment is therefore due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, JONES, ALMON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    Joe C. WILLIAMS v. CONTINENTAL OIL COMPANY.
    79-38.
    Supreme Court of Alabama.
    June 20, 1980.
    Rehearing Denied Aug. 15, 1980.

      William H. Saliba, Mobile, for appellant.
    J. Edward Thornton, Mobile, for appellee.
   EMBRY, Justice.

This is an appeal from an order entered 31 August 1979 purporting to dismiss plaintiff’s case and the counterclaim of defendant. The question presented is whether this appeal should be dismissed because the judgment appealed from is void and therefore not appealable.

This case has been here before on petition for writ of mandamus. Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979).

The relevant facts of this ease are stated chronologically:

(1) On 7 April 1978, plaintiff, Continental Oil Company, filed a motion to compel defendant, Joe C. Williams, to more fully answer interrogatories within 30 days.

(2) On 10 May 1978, plaintiff filed its motion to dismiss defendant’s counterclaim for his failure to more fully answer its interrogatories.

(3) On 16 May 1978, plaintiff’s motion to dismiss the counterclaim was denied.

(4) On 17 May 1978, the order of 16 May 1978 was set aside, the motion to dismiss the counterclaim granted, and the counterclaim dismissed.

(5) On 19 May 1978, plaintiff moved to dismiss its action with prejudice and at the cost of plaintiff. This motion is the key to a determination of this appeal.

(6) On 23 May 1978, defendant asked the trial court to amend its order so as to allow defendant-counterclaimant to proceed with his case.

(7) On 2 June 1978, the trial court granted plaintiff’s motion to dismiss the suit with prejudice and thereupon dismissed the action.

(8)On the same day, but physically appearing subsequent to the previous 2 June 1978 order, the trial court granted a motion to set aside the order of 17 May 1978 dismissing the counterclaim and noted: “counter-claim pending.” Thus it appears that when the trial court attempted to reinstate the counterclaim there was no pending action to which it could attach or in which it could be reinstated.

The order of 2 June 1978, granting plaintiff’s motion to dismiss, and dismissing the cause with prejudice was never set aside; therefore, it remains in full force and effect and any subsequent orders or actions of the trial court in this action are nullities.

The entire cause could not have been dismissed on plaintiff’s voluntary motion if defendant’s counterclaim had been pending. See Rule 41(a)(2), ARCP. However, the counterclaim was dismissed for failure to answer interrogatories before plaintiff made its motion to dismiss the suit with prejudice. Therefore, no counterclaim was pending when plaintiff made its motion to dismiss its action. Likewise, there was no counterclaim pending when the cause was dismissed with prejudice on 2 June 1978. The later action by the court to reinstate the counterclaim was ineffective since the cause was already dismissed. Dismissal of defendant’s counterclaim by the court’s order of 31 August 1979, therefore, will not support an appeal because there was no counterclaim pending. Defendant cannot appeal from dismissal of plaintiff’s case. Mobile Fuel Shipping, Inc. v. Scott, 375 So.2d 796 (Ala.Civ.App.1979), states:

“The dismissal of the plaintiff’s case, in this instance, was clearly in favor of the defendant such that the defendant was not aggrieved or prejudiced in any way thereby. Thus, there is no adverse ruling about which the defendant can complain.
“There being no adverse ruling against the defendant, there is no justiciable controversy for this court to decide.”

For the reasons stated this appeal is due to be and is hereby dismissed.

APPEAL DISMISSED.

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


author: SHORES, Justice.

text:
    The FLAMINGO CLUB OF DOTHAN, INC., d/b/a/ The Godfather Lounge, and Leonard J. Grateful and Jill Grateful v. STATE of Alabama, ex rel. Thomas W. SORRELLS.
    79-236.
    Supreme Court of Alabama.
    June 27, 1980.
    Rehearing Denied Aug. 29, 1980.
    Edward M. Price, Jr., of Farmer, Farmer, Price & Espy, Dothan, for appellants.
    Thomas W. Sorrells, Dist. Atty., Dothan, for appellees.
   SHORES, Justice.

1. On several occasions during August and September of 1979, female dancers at the club were observed to touch their private parts in an obscene manner and make movements simulating the act of sexual intercourse while on stage, and in the presence of Leonard Grateful, an owner of the club.
2. During the same period of time, a female employee of the club permitted male patrons to touch and view her private parts in exchange for money.
3. On one occasion, a dancer believed to be Jill Grateful, a co-owner of the club, walked into a men’s room with a male customer, and exited two minutes later with her bosom exposed and the customer, whose trousers were around his knees, in full pursuit.
4. On another occasion, an intoxicated patron was stripped to his jockey shorts by several of the dancers, who then placed him on a bed on the stage and rubbed their private parts over his body in an obscene manner, at the suggestion of Leonard Grateful, who directed the scene over the loud speaker system.
5. On August 31,1979, a female employee of the club asked a male customer if he wanted to have sexual intercourse with her. On receiving a positive response, she pointed the customer out to Leonard Grateful, received his permission, and arranged to meet the customer at his motel room, specifying that the minimum charge was thirty dollars.

Sorrells requested the Court to preliminarily and permanently enjoin the defendants from maintaining or operating the Godfather Lounge. A hearing date on the preliminary injunction was set for November 6,1979, and the defendants were served on October 31, 1979. Following the hearing, the trial judge granted the preliminary injunction, ordering the defendants “not to operate, conduct or maintain the Godfather Lounge at its present location or at any other location in Houston County, Alabama, pending further Orders of this Court.” Defendants then filed a Motion to Dissolve Preliminary Injunction, on which a hearing was held on November 20,1979. Following this, the trial court amended its preliminary injunction to read:

Defendants . . . are hereby ordered not to operate, conduct or maintain the Godfather Lounge, or any other establishment selling alcoholic beverages and offering entertainment, at the present location of the Godfather Lounge or at any other location in Houston County, Alabama, pending further orders of this Court.
The defendants are not prohibited from operating any legal business which is not prohibited by this Court’s order at the location of the Godfather Lounge nor are they prohibited from removing any personal property belonging to them from the premises.

Defendants appealed this order.

Appellants offer three grounds in support of their contention that Code 1975, § 6-5-140, et seq., is unconstitutional. They first argue that it lacks a provision for prompt and final adjudication on the merits, citing Universal Amusement Company v. Vance, 587 F.2d 159 (5th Cir. 1978), which held the Texas injunction procedure in obscenity situations unconstitutional because “there is no guarantee a final hearing will be seasonably scheduled after the issuance of a preliminary injunction and that a prompt decision will be forthcoming thereafter. . . . [This is] an unacceptable threat to the freedom of expression without due process of law. . . .” However, this contention has already been settled by previous cases interpreting our Red Light District Abatement Act. In General Corporation v. State ex rel. Sweeton, 320 So.2d 668 (Ala. 1975), this Court stated:

Under the Alabama Red Light Abatement Act, however, pre-adjudicatory restraint in the form of a temporary injunction is saved by other mandatory provisions in the Act which insure a speedy final resolution of the ultimate issue of obscenity. Tit. 7, § 1095, requires a hearing on that issue within ten days of the issuance of the temporary injunction; Tit. 7, § 1101, requires that the defendant must be given at least five days notice prior to the hearing on the matter of whether such an injunction will be granted; and Tit. 7, § 1103, requires that final adjudication shall take ‘precedence over all other cases except injunctions.’ Furthermore, the United States Supreme Court has held that the right to a speedy determination arises only where one has been ex parte deprived of a right. [Citations omitted.]

These requirements have been complied with in the instant case. Although a final adjudication has not been reached, that is because the defendants themselves chose to take an interlocutory appeal pursuant to Rule 4, Alabama Rules of Appellate Procedure.

Appellants also contend that Code 1975, § 6-5-147, is unconstitutional because it authorizes the prior restraint of future expressions not yet determined to be obscene. However, in interpreting that section, this Court in General Corp. v. State ex rel. Sweeton, supra, has held that the statute could not be applied to padlock a theater for one year for all purposes upon a showing that admittedly obscene films had been shown at the theater. “Evidence of obscene conduct in the past does not justify enjoining future conduct which is protected by the First Amendment.” (Emphasis added.) General Corp. v. State ex rel. Sweeton, supra, at p. 675.

Here, however, the statute is not applied to a movie house charged with showing motion pictures which may be protected by the First Amendment, but is applied to a club which, the evidence indicates, allowed or encouraged prostitution and lewd conduct. This behavior is not protected by the First Amendment, and comes within the clear prohibition of the Act. As recently as Ellwest Stereo Theaters, Inc. v. State ex rel. Parsons, 371 So.2d 1 (Ala. 1979), we have upheld the validity of the statute when applied to such conduct. We note, also, that the injunction is carefully and specifically worded to avoid infringing on legitimate conduct; defendants are not prohibited from operating any legal business on the premises of the club (apart from a liquor or entertainment club), nor are they prohibited from moving any personal property belonging to them.

Finally, defendants maintain that Code 1975, § 6-5-140, et seq., is unconstitutional in that it fails to provide for a trial by jury to determine the obscenity issue. They cite no authority for the proposition that a jury is required to determine obscenity. Furthermore, they were enjoined from operating a prostitution and lewdness nuisance, requiring no jury. Therefore, we pretermit discussion of this issue.

For the reasons discussed herein, we hold that Code 1975, § 6-5-140, et seq., as construed and applied, is constitutional. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Donald SMITH and Charles Woodall, v. Novella Whitaker SMITH, as Administratrix, etc.
    79-172.
    Supreme Court of Alabama.
    July 25, 1980.
    Rehearing Denied Aug. 29, 1980.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellants.
    W. D. Wilkes, Jr. of Starnes, Smith & Wilkes, Guntersville, for appellee Novella Whitaker Smith, as Administratrix, etc.
    Louis B. Lusk of Lusk & Lusk, Gunters-ville, for appellees Bebe Whitaker Brown and Carey Whitaker.
    J. Terry Huffstutler, Jr., Guntersville, Guardian Ad Litem for appellee Clara T. Whitaker Clay, a person of unsound mind.
   BEATTY, Justice.

This is an appeal by two nephews of Andy Clarence Whitaker, deceased, from a decree which construed his will in a manner adverse to them. We reverse and remand.

The suit was initiated by Novella Whitaker Smith, administratrix C.T.A. of Whitaker’s estate, who sought a declaratory judgment construing his will which had' been admitted to probate. Whitaker, a farmer with little schooling, was a wealthy man when he died in 1979 at the age of 82. Among his assets were over Four Hundred Thousand Dollars in personalty, certain real property in Guntersville, and two farms. Whitaker left no widow, children or descendants of children. His closest surviving relatives were several sisters and two nephews, Donald Smith and Charles Woodall, the appellants.

It appears from the evidence that in 1977 Whitaker had a will prepared by a lawyer. But in 1978 he made another will, which is the subject of this appeal. After drafting this will in his own hand, Whitaker took it to the Guntersville office of the Huntsville Production Credit Association (of which he had been a director) to be typed. Because the handwritten instrument was illegible in places and disorganized in others, the actual typing resulted from a dialogue between Whitaker, the agency manager, and the typist. It also appears that at this time Whitaker was contemplating marriage; references to that possibility in the last will are the root of the problem before us. The typed copy, which varies in several respects from the handwritten draft, was admitted to probate.

After hearing the evidence, the court below held that the third paragraph of the probated will which, inter alia, gave the farms to the appellants, was inoperative because its operation was based upon an unsatisfied condition, i. e., Whitaker’s marriage. Further, the trial court held that a postscript to the probated will was a controlling provision mandating the distribution of Whitaker’s assets to his heirs in accord with intestacy laws.

Paragraph (3) of the handwritten will recites:

In the event I shall remarry then my last wife will be given as long as she remains my widow shall have a life time owner ship of all my city property Including my bank stock in First Alabama Bank and The First National. Also $85,-000.00 which will put in soon after our wedding and that shall be hers. It shall be put in her name and mine. The one that dies first shall be the others. Further more she shall have the right to colect all rents and keep same up and keep the taxes paid-This is remain as long as she my widow — My to Farms which is divided by the Saint John Estate the upper South Side to Donald Smith the North Side containing about 11 hundred 17 acres to Charles Woodall the South Side contains about 600 acres-Next thing that in case I do remarry as it shall be sold this City property and be divided as to American cancer and heart fund Shri-ners crippled children and Masonic home This to be dun in case she remaries and no longer being my widow she is to keep it her life time I also further I ask that thes two I have given my farms to give between them to my five sisters a sum of Fifty Thousand-Each this shall be a sum of 25 Thousand Each
P S in case I do not remarry May God Bless You It all Shall be given to me A C Whitaker

The typed copy of this paragraph contained a postscript at variance with the handwritten version: “In case I do not remarry all shall be given to the A. C. Whitaker Estate.”

Of course the testator’s intent is the polestar in the construction of a will, Allen v. Maxwell, 249 Ala. 655, 32 So.2d 699 (1947), and that intent is to be gathered from the whole instrument, reconciling conflicting clauses so as to make each operative, if possible. Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326 (1948). The result of these principles favors a construction which discloses a consistent whole in which a general and primary interest prevails over a secondary interest which is contrary, Henderson v. Henderson, 210 Ala. 73, 97 So. 353 (1923), mandating, when more than one construction is possible, that construction which will render the will valid. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849 (1912); First National Bank of Birmingham v. Klein, 285 Ala. 505, 234 So.2d 42 (1970). And if it is necessary to effectuate the meaning and intent of the testator, other words will be substituted for the literal ones used in the will itself. George v. Widemire, 242 Ala. 579, 7 So.2d 269 (1942). It has also been held that where an estate or interest is given in one clause of a will in clear and decisive terms, the interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965). And consistent with its search for a construction which reconciles inconsistent clauses and thus upholds the will, a court may transpose or rearrange the clauses in order to give effect to the testator’s intention. Walker v. Walker, 17 Ala. 396 (1850).

Applying these principles to paragraph (3), we have concluded that the trial court erred in its finding that the distribution provided therein was conditional upon the remarriage of Whitaker. The language of that paragraph clearly discloses that Whitaker’s purpose in making the dispositions it contains encompassed more than the possibility of remarriage. This is demonstrated by arranging the terms in the order of their subject-matter:

The first subject deals with his remarriage and the rights of his widow in his bank stock, city property, and a joint ownership in an Eighty-Five Thousand Dollar account.

The second subject, unrelated to the remarriage provision of the first, devises the farms to these appellants.

The third subject pertains to the city property. It reiterates the life estate of his widow in the city property for as long as she does not remarry, and directs the sale of that property following the termination of her interest and the distribution of the proceeds to designated charities.

The fourth subject imposes an obligation upon each of the devisees of the farms (dealt with in the second subject) to provide Twenty-Five Thousand Dollars to the testator’s five sisters.

The fifth subject relates to the subject of his remarriage. Failing that, “it all shall be given to me” or to his estate.

The proper order of the subjects would bring the first, third and fifth parts together because they deal with his remarriage and the rights of his widow in certain (but not all) of his property. The fifth part, admittedly, is ambiguous. Nevertheless, by using that ambiguous language in the fifth part we cannot ascribe to the testator an intent to devise the farms to these appellants, by unambiguous language in the second part, and then to have those same farms pass through intestate succession if he did not marry. Such a construction would be contrary to the principles expressed earlier. It is our opinion that the devise of the farms to these appellants was intended to be unconditional.

Because the construction placed upon paragraph (3) does not accord with this view, the decision of the trial court is reversed and this cause is remanded to allow that court to enter an order not inconsistent with this opinion. .

REVERSED AND REMANDED.

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


author: MADDOX, Justice. JONES, Justice

text:
    Dona SLY v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    79-257.
    Supreme Court of Alabama.
    July 25, 1980.
    Rehearing Denied Aug. 29, 1980.

      Myron K. Allenstein, Gadsden, for appellant.
    Anita Leslie Miller and Atley A. Kitch-ings, Jr., Birmingham, and James D. Pruett and Robert D. McWhorter, Jr., Gadsden, for appellee.
   MADDOX, Justice.

This appeal involves the extent of the duty owed by a telephone company to one who is not a subscriber.

The case arose from South Central’s termination of telephone service to two of its customers, both business corporations, Security Bail Bonds, Inc., and The Better Business Bureau of Etowah-Calhoun County. The two corporations shared office space, and a receptionist answered both numbers. The plaintiff-appellant, Dona Sly, gave South Central Bell his oral guarantee to enable these two businesses to obtain phone service without posting the security deposit normally required by the telephone company. Sly had contacts with both businesses and used the two numbers as his own. In fact, the failure of a caller to reach him at the numbers is a basis for Sly’s action.

South Central stated that service was terminated because one of the corporations, Security Bail Bonds, failed to post a requested security for payment of its separate WATS line and owed $2,000 for the use of the line at the time service was terminated. The $2,000 was not delinquent at the time of termination but was currently owing to South Central.

Sly asserts that as a result of the termination of telephone service, he lost a promised franchise in the World Basketball Association. He contends that the franchise was lost when the WBA was unable to contact him at the numbers which had been disconnected.

The issues presented for review are: (1) the extent of the duty owed by the telephone company to its customers, and others who would be using the telephone service; (2) if there is such a duty, to whom does the duty run; (3) whether the wilful termination of telephone service amounted to a breach of the telephone company’s duty; and (4) whether embarrassment and humiliation are actual damages in a wrongful termination of telephone service claim.

The duty of a telephone company has been defined as follows:

“It is the duty of telephone companies maintaining lines and exchanges for the purpose of affording patrons the means of telephone communications to exercise in that public service a character and degree of care and diligence and skill commensurate with their undertaking.”

Vinson v. Southern Bell Telephone & Telegraph Co., 188 Ala. 292, 300, 66 So. 100, 102 (1914).

While this duty of service extends to the general public, it is clear that the correlative right of service extends only to those individuals who comply with the reasonable rules of the telephone company. Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 So. 254 (1955). The right of the telephone company to promulgate rules and regulations, and its further right to enforce sanctions for violations of those rules, has been recognized by the Supreme Court of the United States. It was stated:

“. . . [T]he telephone company was entitled to adopt reasonable regulations respecting the conduct of its business and the terms upon which it would serve its patrons, and could enforce such regulations against any patron refusing or failing to comply therewith by suspending or discontinuing the service to him during the continuance of his refusal or failure without being chargeable with discrimination or incurring any liability under the statute.”

Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482, 488, 35 S.Ct. 886, 887, 59 L.Ed. 1419 (1915).

It is the law, therefore, that the telephone company does have a duty to those who comply with its rules and regulations. That rule does not resolve this case, however. The question then becomes: Does this duty run to a person who is merely a guarantor of the account for a customer of the company? It is well-established in Alabama that:

“. . . [o]ne who seeks recovery in contract as a third-party beneficiary must establish that the contract was intended for his direct, as opposed to incidental, benefit. Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965).”

Zeigler v. Blount Brothers Construction Co., 364 So.2d 1163, 1166 (Ala.1978).

Appellant Sly urges that a “reasonably foreseeable injured party” test should be applied to determine whether he, as guarantor, was one to whom the telephone company’s duty ran. In support of this argument he cites Federal Mogul Corp. v. Universal Const. Co., 376 So.2d 716, 724 (Ala.Civ.App.1979), which says:

“Although plaintiff may be barred from recovering from defendant as a third party beneficiary to defendant’s contract with another, plaintiff may nevertheless recover in negligence for defendant’s breach of duty where defendant negligently performs his contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable. Williams v. Jackson Co., supra. See also, Zeigler v. Blount Bros. Construction Co., Ala., 364 So.2d 1163 (1978).”

Earlier cases used the “substantial benefit” test for recoveries which were ex delic-to as opposed to ex contractu. McGhee v. Western Union Telegraph Co., 169 Ala. 109, 53 So. 205 (1910); Western Union Telegraph Co. v. Brown, 6 Ala.App. 339, 59 So. 329 (1912). A more recent case, Zeigler v. Blount Brothers Const. Co., 364 So.2d 1163 (Ala.1978), held that recoveries for negligence under the provisions of a contract must be reasonably foreseeable and must not be too remote. The issue then is whether the consequences were reasonably foreseeable.

In this case the contract was between South Central Bell and the two companies, Security Bail Bonds and The Better Business Bureau. In order for the duty under the contract to run to Sly, it must be shown that it was foreseeable that harm to Sly would result if care was not exercised. A statement of the foreseeability test is set out in Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974). Ordinarily, it is a jury question whether consequences of an act are reasonably foreseeable, but, in a proper case, it is a legal question. Here, the record indicates that Sly never signed any form of written memorandum confirming his guarantyship, but there is evidence in the record that Sly attempted to orally guarantee the accounts and that he, in fact, paid one telephone bill for. one of the companies; therefore, there is evidence from which the jury could infer that South Central knew that Sly was a guarantor, but, even so, there is not a scintilla of evidence that the telephone company knew that Sly was using the numbers as his own or that he might be injured by the termination of the service. There is no evidence which indicates that Sly gave notice to South Central that he would be using the numbers as his own. The mere fact that Sly was a stockholder or founder of the two companies, even if known by the telephone company, is not sufficient to have put it on notice of Sly's intended use of the telephones for personal business; therefore, even under the “reasonably foreseeable injured party” test Sly would have us adopt, he is not entitled to a new trial.

If the substantial benefit test were used, it is clear that Sly was not to be directly benefited by the contract between the companies and South Central. He was, at best, a mere third-party beneficiary and under the language of Zeigler v. Blount Brothers, he must show that he was more than a mere incidental beneficiary. Sly did not show this, and therefore, is not entitled to a new trial.

In view of our holding that the telephone company was under no obligation to furnish telephone service to Sly under its contract with the two businesses, we need not discuss whether the termination, as to Sly, was rightful or wrongful. We note, however, that a utility may “coerce” compliance with its rules by discontinuance of service. In Water Supply Board of City of Arab v. Williams, 53 Ala.App. 560, 563, 302 So.2d 534, 536 (1974), the Court of Civil Appeals held:

“The appellate courts of Alabama have long recognized the right of a water company to discontinue its service in order to coerce out of unwilling or laggard debtors the payment of its just demands. See Sims v. Ala. Water Co., 205 Ala. 378, 87 So. 688; Birmingham Waterworks Co. v. Davis, 16 Ala.App. 333, 77 So. 927.”

The judgment of the trial court in directing a verdict in favor of the defendant, South Central, is due to be affirmed.

AFFIRMED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

This is a close case because ordinarily the “reasonably foreseeable” test is one for the jury. But I agree that these particular facts reduce the issue to a purely legal one which has been correctly decided by the trial court.

I am persuaded that, as a matter of law, Sly’s injury, if any, was, at best, a “remote result” and not “a matter reasonably foreseeable” by South Central Bell. Zeigler v. Blount Brothers Construction Co., 364 So.2d 1163 (Ala.1978).


text:
    Henry E. WELLS, etc. v. MOBILE COUNTY BOARD OF REALTORS, INC., an Alabama Corporation.
    78-740.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Harold R. Reed, Jr., Mobile, for appellant.
    Mary Elizabeth McFadden of McFadden, Riley & Parker, Mobile, for appellee.
   EMBRY, Justice.

This is an appeal from a declaratory judgment rendered in favor of the Mobile County Board of Realtors, Inc., and against Henry Wells, holding that Wells violated the Bylaws of the Mobile County Board of Realtors, Inc., the Code of Ethics of the National Association of Realtors, and the Code of Ethics and Arbitration Manual of the National Association of Realtors, and further holding that the decision of the Mobile County Board of Realtors, Inc., to expel Wells from membership was proper. We reverse.

On 7 July 1977, A. C. Reeves and Margie Powles, a salesperson associated with Reeves, filed a complaint with the Board charging Ann Nichols with unethical conduct, alleging that she sold a home upon which the Reeves agency had obtained an exclusive listing agreement. The complaint was later amended to request that the Professional Standards Committee of the Board determine that Century 21 Reeves Realty, Inc., was entitled to the listing side of a commission earned by Bay Agency, Inc. (of which Henry E. Wells is the principal broker), for whom Nichols worked.

On 11 October 1977, Reeves and Powles executed agreements to submit the controversy regarding the entitlement of the listing side of the commission to arbitration pursuant to the bylaws of the Board, the Code of Ethics of the National Association of Realtors, and the Code of Ethics and Arbitration Manual of the National Association of Realtors. On 17 October 1977, Wells refused to submit the controversy to arbitration.

On 22 November 1977, the directors of the Board met to take disciplinary action regarding the refusal of Wells to submit to arbitration. Upon consideration of the matter, at a hearing conducted in compliance with the requirements set forth in the Code of Ethics and Arbitration Manual of the National Association of Realtors, the directors determined that Wells should be expelled from membership in the Board. The Board held in abeyance its decision to expel Wells until a final determination of the rights of the parties could be made by the circuit court. That court held as stated in the initial paragraph of this opinion, and also that the Board’s hearing determining whether to expel Wells was held in compliance with all applicable rules and standards of the Board, and that the expulsion of Wells was consistent with all applicable rules and standards. This is Wells’ appeal from that judgment.

Wells contends there is not a justiciable controversy existing between the parties which suffices to invoke the jurisdiction of the court to enter a declaratory judgment, that the section of the Board’s bylaws which requires its members to submit to arbitration is void as against public policy, that the arbitration procedure provided in the Board’s by-laws does not strictly comply with the Alabama Arbitration Statute, § 6-6-3, Code 1975, and is unlawful, and that the Board’s expulsion of Wells was therefore improper.

The Board contends there is an existing controversy between the two parties and that any consideration of the arbitration procedure provided in the Board’s bylaws is immaterial. The Board, instead, contends the issue is simply whether a voluntary, incorporated association may expel one of its members who is deemed to have known and assented to the association’s bylaws, rules and regulations, and who is, found to be in violation of the association’s bylaws, rules and regulations, when that member is expelled by procedures consistent with the association’s constitution, bylaws, rules and regulations.

There is clearly a controversy existing between the parties capable of determination by an action for declaratory judgment. It is well established that the constitution, bylaws, rules and regulations of a voluntary association constitute a contract between the association’s members, which is binding upon each member so long as the bylaws, etc., remain in effect. Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944). Any dispute between a voluntary association and one of its members concerning the construction or validity of the association’s constitution, bylaws, rules and regulations constitutes a dispute as to the construction or validity of a written contract. The Board contends that it properly expelled Wells. Wells contends that the Board’s expulsion of him was improper. That constitutes the justiciable controversy.

Wells contends that the bylaws of the Board which require members to submit any controversy which arises out of the real estate business to arbitration for determining are void as against public policy. The rules of law regarding voluntary associations are well developed in Medical Society of Mobile County v. Walker, surpa, where the court stated,

“Membership in a voluntary association is a privilege which may be accorded or withheld, and not a right which can be gained independently and then enforced. * * * Societies of the sort here considered have the right to make their own rules upon the subject of admission or exclusion of members, and these rules may be considered as articles of agreement, to which all who are members become parties. * * * They may make their own constitution and by-laws; and so long as they remain unchanged, each member is alike bound and shielded by them. The society too must observe its own constitution and by-laws until it changes them in legal form. Of course such constitution and by-laws, to be obligatory, must not contravene public law, nor any principle of public policy. Weatherly v. Medical & Surgical Society of Montgomery County, 76 Ala. 567.
“ * * * [A] corporate, franchise is property, incorporeal, it is true, but deemed none the less valuable in the eye of the law. Each individual member, as remarked by Sir William Blackstone, is said in such cases to be the owner of the franchise, and his privilege of membership, we may add on high authority, is, therefore, properly subject to the protection of the courts as valuable, although it may have no actual market value. * *
‘ * * * In High on Extraordinary Remedies, § 294, it is said to be now a well established rule, that “mandamus will lie to restore to his corporate rights a member of a corporation who has been improperly disfranchised or irregularly removed from his connection with the corporation. And while the court will not inquire into the merits of the decision of corporate authorities in expelling or removing a corporator in the regular course of proceedings, yet, if the amotion has been conducted without due authority, the courts will interfere by mandamus to compel the restoration of the member to his corporate franchise.” * * * In the light of these authorities, and the numberless adjudged cases upon which they are predicated, and by which they are fully sustained, we think the rule may be regarded as firmly established, that, in every case of the disfranchisement of a corporator, the courts will entertain jurisdiction to restore him by mandamus, where the cause or ground of disfranchisement is legally insufficient, or where the proceedings by which it has been attempted are irregular, according to, or as tested by the charter or by-laws of the corporation. * * * ’ ” (Emphasis added.) 245 Ala. 138, 139, 16 So.2d 324-25.

Later, in Mackey v. Moss, 278 Ala. 55, 175 So.2d 749 (1965), the court stated, viz.:

“Voluntary associations have the right to make their own regulations as to the admission or expulsion of members, and one who becomes a member assents, by his membership, to the constitution and rules and procedure adopted by such association. The constitution rules and bylaws constitute a ‘contract’ between the association and its members and the rights and duties of the members as between themselves and the association are measured by the terms and such constitution and bylaws.
“In Shaup v. Grand International Brotherhood, etc., 223 Ala. 202, 135 So. 327, this court quoted with approval the following language from State ex rel. Smith v. Kanawha County Court, 78 W.Va. 168, 88 S.E. 662, 20 A.L.R. 1030:
“ ‘ “The right of a voluntary association to interpret and administer its own rules and regulations is as sacred as is the right to make them, and there is no presumption against just and correct action or conduct on the part of its supervising or appellate authorities and tribunals. On the contrary, the presumption is in favor of it. In connecting himself with the organization, a member subjects himself as fully and completely to the power of administration, within legal limits, as to the power of legislation or prescription. To say courts can make rules and regulations for such associations would be absurd and ridiculous. To say they may interpret and apply them, in view of the powers reserved to, and exercised by, the governing bodies of the association, would be as plainly subversive of contractual right.”
“ ‘Our court in Grand International B. of L. Engineers v. Green, supra [210 Ala. 496, 98 So. 569], recognized the general rule as stated in the above-noted authorities, with the qualification, also generally recognized, that the “associations must act in good faith and must not violate the laws of the land or any inalienable right of their members.” ’ (Authorities omitted.)” (Emphasis added.) 278 Ala. at 59, 175 So.2d at 752-53.

We note that this is not a petition for the writ of mandamus by Wells seeking reinstatement to membership in the association. The Board filed this action for declaratory judgment to determine whether its expulsion of Wells was proper. In his answer, Wells contended the expulsion was wrongful. On appeal, Wells does not contend that the procedure used by the Board to expel him from membership was unlawful. He contends, rather, that the reason for his expulsion was wrongful.

Under the authorities above cited, and in the posture of the instant case, our inquiry is indeed twofold: whether Wells was expelled with a procedure consistent with the Board’s constitution, bylaws, rules and regulations, and whether the reason for Wells’ expulsion was wrongful. The procedure employed by the Board was found by the trial court to be in compliance with the bylaws, rules and regulations of the Board. The trial court’s finding in this regard is supported by the record, and, as we noted, Wells does not dispute the propriety of the procedure employed.

However, the reason for Wells’ expulsion, refusal to submit the controversy to arbitration, was, as Wells contends, wrongful. As long ago as 1840, in Bozeman v. Gilbert, 1 Ala. 90 (1840), the court noted that an individual has a right to have his rights determined in a court of law. The court stated:

“A mere agreement to decide a controversy by arbitration cannot be enforced at law, or in equity, because no one can effectually waive his right to have his suits determined at the proper Courts provided by the laws of his country.” (Emphasis added.) 1 Ala. at 91

The public policy of this state is to encourage arbitration and amicable settlements of differences between parties; but public policy also holds void an agreement in advance to oust or defeat the jurisdiction of all courts, as to all differences between parties. As the Court stated in Headley v. Aetna Ins. Co., 202 Ala. 385, 80 So. 466 (1918):

“A covenant in a contract, whether of insurance or of other matters, to submit every matter of dispute between the parties, growing out of such contract, to arbitration or to a board of appraisers, to the end of defeating the jurisdiction of courts as to be subject-matter, are [sic] universally held to be void, as against public policy. There need be no such express intent to so defeat the jurisdiction; if the necessary effect of the covenant will inevitably so operate, it is held to be void because against public policy. * * * The policy of this state favors arbitration and amicable settlements of differences between parties; but it does not favor or allow agreements in advance to oust or defeat the jurisdiction of all courts, as to all differences between parties. Const., § 84; Code, §§ 2908-2923.
“A general provision in a contract for the arbitration of any dispute which may arise thereunder does not oust the courts, nor bar a suit either at law or equity. Stone v. Dennis, 3 Port. 231; Kinney v. Baltimore & Ohio Employes’ Ass’n, 35 W.Va. 385, 14 S.E. 8, 15 L.R.A. 142.” (Emphasis added.)

That part of the Board’s bylaws, rules, regulations, and constitution, requiring its members to submit to arbitration all controversies arising out of the real estate business has the necessary effect of defeating the jurisdiction of all courts in advance of any dispute between the Board’s members. This is not a case where arbitration is optional with the parties and both enter into it voluntarily and at arm’s length after a dispute has occurred between them. Rather, this is a case where there is no option. Arbitration is mandated by the Board’s bylaws. Any dispute between them arising out of the real estate business, whenever the dispute arises, is required to be submitted to arbitration, else the party who refuses to submit his case to arbitration is subject to expulsion from Board membership.

For a voluntary association’s constitution and bylaws to be obligatory upon its members, the constitution and bylaws “must not contravene public law, nor any principle of public policy.” Medical Society of Mobile County, surpa; Weatherly v. Medical & Surgical Society of Montgomery County, 76 Ala. 567 (1884). Since the arbitration provision in the Board’s bylaws in the case at bar violates the dictates of public policy, it is not obligatory on Board members, and the Board’s reliance on that provision to expel Wells from membership was, therefore, improper. The cause is due to be reversed and remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, JONES and ALMON, JJ., concur.


text:
    Ernest FRAZIER v. Minnie MALONE.
    78-847.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      J. Edmund Odum, Jr., Birmingham, for appellant.
    Albert C. Swain of Trimmier & Hartman, Birmingham, for appellee.
   EMBRY, Justice.

This appeal is from a judgment, in an action tried ore tenus, which denied relief to plaintiff Ernest Frazier in his action to set aside a default judgment in favor of defendant Minnie Malone in a prior action by her against him in the nature of ejectment; to set aside a note and mortgage allegedly executed by Frazier in favor of Malone; to find that Frazier is not indebted to Malone; and alleging various causes of action arising: out of a contract for home repair; a note and mortgage executed in connection therewith; the foreclosure of that mortgage; the ejectment action arising from that foreclosure; and the execution upon the judgment in the ejectment action. We affirm.

Issue

The dispositive issue is whether the trial court erred to reversal by refusal, in this action, to set aside the default judgment against Frazier in a prior ejectment action.

Facts

In January 1972, Frazier contracted with one Eades for certain repairs on Frazier’s home. The repairs were financed by Malone in consideration of which Frazier executed a note and a mortgage on his home in favor of Malone. Shortly thereafter, Frazier defaulted and in July 1973 Malone foreclosed. This was followed in February 1974 by action in ejectment against Frazier in connection with which he employed an attorney, but no formal appearance in his behalf was made by that attorney. Subsequently, Frazier received notice that the action was set for trial on 2 September 1975. He took the notice to his attorney who indicated he would discuss the matter with Malone’s attorney in an effort to work out a settlement. Nothing came of this. On 26 August 1975, prior to the date set for trial, default judgment in the ejectment action was entered against Frazier. That judgment stipulated that execution would be stayed until 25 September 1975 and so it was. Shortly thereafter, Frazier and his attorney met with Malone’s attorney and as a result it was agreed that execution would be stayed for an additional 25 days or so.

No action was ever taken in behalf of Frazier to review or set aside the default judgment. The docket sheet of the circuit clerk, however, contains the following notations:

“Hold 10-23
do not iss. writ until he req.”
“322-7739
12-1-75
Sec. w/call me back
12-22-75
Sec. w/let me know
[name omitted] Sec. ealled-w/pay cost & has worked out other with/[name omitted]”
“5-19-76
[name omitted] says iss. writ of possession”

On 4 June 1976, writ of possession was executed and Frazier, together with his belongings, was removed from the premises (on that same day, apparently, as soon as the sheriff was out of sight, Frazier took himself and his belongings back into the house, where he still remains). On 17 June 1976, this action was filed.

Contentions of the Parties

As stated in brief, and at oral argument, Frazier says the issues are as follows:

“(1) Should the note and mortgage be declared invalid because it is acknowledged by one interested in the conveyance and transaction?
“(2) Should the mortgage and ensuing foreclosure deed be set aside as invalid because the realty is improperly described in the mortgage?
“(3) Should they be declared null because no consideration, whatsoever, passed between plaintiff/appellant and appellee?
“(4) Where the purported mortgagor denies the authenticity of his signature and appellee’s own witnesses cannot explain various inconsistencies, did the trial judge abuse his discretion by failing to consider appellee’s total inability to explain away said inconsistencies?
“(5) Should a default judgment rendered prior to an established date for trial be allowed to stand?
“(6) Is res judicata a valid defense to an equity action filed to set aside a default judgment rendered prior to an established trial date?”

On the other hand, Malone says the issues are:

“1. Does a final judgment by a court with jurisdiction over the parties and over the subject matter constitute res judicata in an action between the same parties when the issues in both actions are identical. [Citation omitted.]
“2. Is a judgment in an ejectment action, between identical parties and concerning identical issues, and rendered by a court of competent jurisdiction, conclusive and binding upon the parties and issues presented or which could have been presented therein, except where the subsequent action is an action in ejectment. [Citations omitted.]
“3. Is a judgment entered by a court of competent jurisdiction, with jurisdiction over the parties, subject to direct or collateral attack where there was no fault, mistake, inadvertence or any other grounds for attacking such judgment; and where the party complaining of such judgment was served with process, received notice of the proceedings, and employed counsel to defend such proceeding. [Citations omitted.]
“4, Is a mortgage invalid for improper acknowledgement where the official taking the acknowledgement was not interested in the conveyance, and where the mortgagor admits his signature on the instrument.
“5. Is a mortgage valid between the parties thereto despite an alleged misde-scription of the land contained therein, where both parties intended to mortgage the land in question. [Citation omitted.]
“6. Should the determination of the trial court, sitting without a jury, that a mortgagor’s signature to a mortgage is authentic be overturned where the mortgagor admits that the signature is genuine and where the notary who took the acknowledgement of the mortgage testifies that the signature is genuine, and no evidence appears in the record which would tend to indicate that the signature to the- mortgage was not genuine.
“7. Is the determination of the trial court, sitting without a jury, that there was no failure of consideration for a note subject to attack on appeal where the record indicates that the payee of the note financed repairs to the maker’s home pursuant to a contract with a third party.”

The statement of the issues by the parties is acceptable as a summary of their respective contentions in support of reversal or of affirmance of the judgment below.

Decision

The trial court apparently properly treated this action as a bill of review, or as a bill in the nature of a bill of review, under Rule 60(b), ARCP.

The trial court made findings of fact upon which it based the judgment denying Frazier the relief he sought. The findings are:

“1. That the final judgment entered in the action captioned Mrs. Minnie Malone v. Ernest Frazier, Civil Action No. 43160 [the ejectment action], in the Circuit Court of the Tenth Judicial Circuit of Alabama, on August 26, 1975, is a valid and binding judgment and that such judgment is not due to be set aside or vacated in this action.
“2. That the evidence presented fails to reasonably satisfy the Court that the signatures purporting to be that of the Plaintiff [Frazier] on the note, mortgage and disclosure documents involved in this action are forgeries and not the signatures of the Plaintiff.
“3. That the evidence fails to show that the note and mortgage involved here are defective, void or voidable for want of consideration.”

Evidence in the record amply supports these findings including the facts that Frazier signed the note and mortgage and there was consideration for the mortgage. The burden is upon the mortgagor to establish lack of consideration where a note and mortgage in evidence establish a prima facie case. Willingham v. Langford, 257 Ala. 595, 60 So.2d 387 (1954). We will not substitute our judgment on these factual issues for that of the trial court. Gordon v. Love, 380 So.2d 287 (Ala.1980).

Because of an alleged discrepancy between the description of the property in the mortgage and the description of it in the foreclosure deed, appellant contends the mortgage and therefore the foreclosure and ejectment are invalid. According to Frazier the property he actually owned is described as follows:

“Lot 20, Block 46, according to the survey of East Birmingham, as recorded in Map Book 1, Page 7, in the Office of the Judge of Probate of Jefferson County, Alabama.”

In the mortgage to Malone, and in the foreclosure deed, the real estate is described as follows:

“Lot 20, Block 46, according to the First Addition to East Birmingham, as recorded in the Office of the Judge of Probate of Jefferson County, Alabama.”

In addition to this latter description, the complaint in the ejectment action stated the street address of Frazier’s property: 1101 Coosa Street, Birmingham, Alabama.

In Mid-State Homes, Inc. v. Brown, 294 Ala. 242, 314 So.2d 838 (1975), this court articulated its reluctance to declare written instruments void because of misdescription where they can be made certain by reference to intention of the parties and surrounding circumstances.

The evidence before the trial court was clearly sufficient to support the conclusion that the property description in the mortgage referred to Frazier’s property and was not invalid. Frazier testified that the description in the mortgage and note was of his house and that negotiations concerning the transaction involved his house. Under the circumstances the description is sufficient both in the mortgage and in the ejectment action. See Myers v. Ellison, 249 Ala. 67, 31 So.2d 353 (1947); Karter v. East, 220 Ala. 511, 125 So. 655 (1929).

We now turn to the issue regarding the acknowledgment of Frazier’s signature on the mortgage. An acknowledgment, under § 35-4-23, Code 1975, to be effective as a substitute for a witness (or witnesses) under § 35-4-20, Code 1975, must be by one who is not personally interested in the mortgage. This court in Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972), distinguished between one having a financial interest in the transaction and one having a financial interest in the conveyance. It is the latter which operates to invalidate the acknowledgment. Here, appellant contends that Eades, as the contractor, had such an interest in this conveyance and transaction as to invalidate his acknowledgment of Frazier’s signature. Eades’ financial interest in this conveyance cannot be more than secondary or incidental where he neither supplied the loan proceeds nor took a security interest in the property. Instead, Eades’ interest appears to be limited to obtaining payment for the home repairs by aiding Frazier in procuring financing for those repairs.

Broadening the present standard which disallows acknowledgments by those with an interest in the conveyance to also disallow those with any financial interest in the transaction would be fraught with such ambiguity and uncertainty in application that even the most tenuous and remote interest in the transaction might be construed to invalidate the acknowledgment. The acknowledgment was valid.

As to the issue regarding the time of entry of the default judgment, we cannot conclude that it was defective or voidable because it was entered before the date the case was set for trial. There was no appearance by Frazier and therefore he was not entitled to any notice before entry of default judgment. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala.1977). Although the default judgment was entered 26 August 1975, before the 2 September 1975 date set for trial, Frazier had been personally served with process on 11 March 1974 and failed to make an appearance. There was no error in entering the default judgment.

We will now consider whether the prior default judgment in the ejectment action may be raised as a defense in, or is res judicata of, this action.

The law is clear that one judgment in ejectment is res judicata in all proceedings involving title other than in another action in ejectment. McCormick v. McCormick, 221 Ala. 606, 130 So. 226 (1930). Although § 6-6-298, Code 1975, provides that two judgments in favor of a defendant in an action of ejectment create a bar to further actions between the same parties, or their privies, for recovery of land, this should not be construed to mean that the first action is without any effect. In Moore v. McLean, 248 Ala. 9, 26 So.2d 96 (1946), the plaintiff filed a bill in equity to establish claims in lands which had previously been the subject of an ejectment action wherein a default judgment had been entered against the plaintiff. The bill did not allege fraud or other bases upon which to vacate the judgment, nor did it allege any equitable rights not available as a defense to the ejectment action. In that case this court held the prior judgment tó be binding.

Furthermore, with regard to default judgments in ejectment, § 6-6-290, Code 1975, does not require two favorable judgments in order to bar further action to recover the land. In Womble v. Glenn, 256 Ala. 374, 54 So.2d 715, 719 (1951), it was stated:

“Neither the proceedings and judgment in the action of ejectment, regular on their face, nor the execution and foreclosure of the mortgage are subject to collateral attack in an action at law. A judgment by default against the defendant in an action of ejectment under the statute is an admission by the defendant of title in the plaintiff. * * * ”

The trial court, therefore, properly treated this as an action for relief from judgment under Rule 60(b), ARCP. To obtain relief under 60(b) one of the grounds under that rule must be alleged and proved as well as showing that one has a meritorious defense to the action. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978).

When passing on an attack upon a judgment the court is given wide discretion; it must balance the desire to remedy injustice against the need for finality of judgments. Committee Comments, Rule 60, ARCP. In this action the grounds under Rule 60(b) upon which appellant sought relief from judgment in the ejectment action are not specified. The trial court denied relief based on the factual showing made in this independent action to set aside the judgment. We will not reverse the trial court unless there is evidence showing an abuse of discretion or violation of some legal right of appellant. There is neither in this ease. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). The judgment below is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, JONES and ALMON, JJ., concur.

      . The attorney then representing him is not the same who prosecutes this appeal.


text:
    Jeanette WOODHAM v. Wayne WOODHAM, Executor of the Estate of James O. Woodham.
    79-13.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Robert H. Brogden of Brogden & Quatt-lebaum, Ozark, and James A. Ward, III, Abbeville, for appellant.
    Bryant F. Williams, Jr., Ozark, for appel-lee.
   TORBERT, Chief Justice.

James Woodham died testate, leaving all his property, real and personal, to his wife and four children in equal shares. Jeanette Woodham, wife of the deceased, dissented from the will by authority of Code 1975, § 43-1-15. As executor of the estate, Wayne Woodham petitioned the circuit court to decree Mrs. Woodham was not entitled to dower because the value of her separate estate equaled or exceeded the value of the widow’s dower and distributive share of the decedent’s personalty. The Circuit Court of Dale County, sitting in equity, granted the petition and found Mrs. Woodham’s separate estate of such a value as to preclude her dower interest.

At his death Mr. Woodham owned interests in three tracts of real estate. Two of the parcels were held by Mr. Woodham individually; however, an 80-acre tract was held by Mr. and Mrs. Woodham as joint tenants with right of survivorship. Appellant argues that the value of the 80-acre tract, now owned entirely by Mrs. Wood-ham, is not included in her “separate estate” as that term is used in Code 1975, § 43-5-3. In the alternative, appellant challenges as unconstitutional our statutory scheme which reduces the widow’s dower interest by her separate estate.

We address the constitutional question by noting this Court will not consider generalized constitutional challenges not presented at trial. Cooper v. Green, 359 So.2d 377 (Ala.1978). After careful review of the record, we observe the issue of the constitutionality of our dower statutes was never raised in the lower court. Under the rule set down, we are precluded from considering appellant’s constitutional argument, and we direct our attention to application of the dower statutes to appellant’s case.

No case decides whether the value of property held by the husband and wife as joint tenants is included in the widow’s separate estate for dower purposes, but several cases give guidance. Williams v. Williams, 68 Ala. 405 (1880), and Wadsworth v. Miller, 103 Ala. 130, 15 So. 520 (1893), question inclusion of the husband’s life insurance proceeds in the widow’s separate estate. In both cases, the husband owned the policy, but the wife was irrevocable beneficiary. This Court held the insurance proceeds were included in the wife’s separate estate for dower purposes.

A later case, Barfoot v. Barfoot, 245 Ala. 593, 18 So.2d 465 (1944), found, where the husband retains the right to change beneficiaries on his life insurance, insurance proceeds are not included in the separate estate of the beneficiary-widow. The Court reasoned that, since the husband could change the beneficiary any time prior to his death, the insurance proceeds were a mere expectancy for the widow and not a vested interest. The Barfoot Court distinguished Williams v. Williams, 68 Ala. 405 (1880), and Wadsworth v. Miller, 103 Ala. 130, 15 So. 520 (1893), by noting that those cases involved widows who were irrevocable beneficiaries with vested interests in the insurance proceeds.

In Zackry v. Lockard, 98 Ala. 371, 13 So. 514 (1893), the Court considered a suit brought by an administrator for allotment of dower to the widow. The widow claimed that her separate estate, for purposes of dower allotment, should not include her remainder interest in certain of her father’s property. The Court disagreed and ruled that a vested remainder is to be considered against the dower interest. Even though the remainder may fail to mature into fee simple ownership (the widow could have died before the life tenant), at her husband’s death the widow had a valuable vested interest.

. Prom examination of the cases, we conclude that the issue of whether property is included in a widow’s separate estate turns on the nature of the property interest held by the wife at her husband’s death. Here, the wife held an interest in joint tenancy with right of survivorship. If such interest is vested before the husband’s death, the value of the interest is charged against the widow’s dower.

Joint tenancy in this state retains common-law characteristics with exceptions not pertinent here. See Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

[A]t common law each [joint] tenant was seized of some fractional share while at the same time each owned the whole. The most significant feature of such a tenancy was the right of survivorship. When one joint tenant died, the deceased’s share was owned by the surviving tenants jointly, until only one remained, who then owned the fee. The last survivor took nothing by survivorship as he had always owned the whole. The deaths of the other joint tenants merely removed impediments to the survivor’s complete ownership.

Id. at 520-21, 268 So.2d at 794.

Since Jeanette Woodham used, owned and enjoyed the whole of the 80-acre plot, the value of the plot diminishes her dower interest under Code 1975, § 43-5-3.

Although we find the trial judge correctly ruled that the value of the 80-acre plot must be included in the widow’s separate estate, we are compelled to agree with appellant that insufficient evidence was presented from which the judge could value Mrs. Woodham’s separate estate and her dower interest and distributive share. We have carefully searched the record and find no evidence of the worth of Mrs. Wood-ham’s distributive share of her husband’s personalty or the rental value of the separate parcels of land. Additionally, we find no evidence of the value of Mrs. Woodham’s separate estate, other than the value of the 80 acres. Consequently, we remand for further findings and judgment in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FAULKNER, ALMON and EMBRY, JJ., concur.

JONES, J., concurs in the result.