author: MADDOX, Justice.

text:
    Clayton W. WILLIAMS, Jr., Johnny May and H. W. Souther v. FIRST NATIONAL BANK OF MOBILE et al. Calvin N. SOUTHER and Edwin D. Souther v. FIRST NATIONAL BANK OF MOBILE et al.
    78-869, 78-870.
    Supreme Court of Alabama.
    May 30, 1980.

      Norborne C. Stone, Jr. of Stone & Partin, Bay Minette, Sam W. Pipes and Norton Brooker, Jr. of Lyons, Pipes & Cook, Mobile, for appellants Clayton W. Williams, Jr., et al.
    William W. Stoudenmire of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, P. C., Sterling F. Stoudenmire, Jr., Mobile, for appellants Calvin N. Souther and Edwin D. Souther.
    Albert W. Key of Hamilton, Butler, Rid-dick, Tarlton & Allen, Mobile, for appellees, The First National Bank of Mobile, etc., et al.
    Robert P. Denniston of Gallalee, Denni-ston, Cherniak & Moon, Mobile, for appel-lee, Denniston Land Trust.
   MADDOX, Justice.

These appeals involve the validity and constitutionality of the so-called Grove Act in a case involving the oil, gas and mineral rights to over 10,000 acres of land located in Baldwin County.

In 1942, Denniston-Boykin Company, Inc. and Baldwin Timber and Naval Stores Company, Inc., filed a bill of complaint in the circuit court of Baldwin County, sitting in equity, in which they alleged that they jointly held title in fee simple to the subject lands through various tax sales and other conveyances, and asked the court to quiet title in them. Specifically named as respondents to the in rem proceedings were 83 corporations and individuals whom the complainants believed may have had claims against the subject lands.

Complainants in the 1942 action proceeded under the provisions of the Grove Act, which was originally enacted by the legislature in 1923. Acts of Alabama, 1923, No. 526. (Tit. 7, § 1116, et seq., Code of Ala. 1940; now codified at Code 1975, § 6-6-560, et seq.) The Act has remained substantially unchanged since its original enactment. In 1951, the legislature, among other things, provided for the appointment of a guardian ad litem to represent infants and lunatics in proceedings when indicated. Code 1975, § 6-6-562.

In the original proceeding, service was perfected on all named defendants either by registered mail, personal service or publication.

Among the named defendants were “. . . Southern Plantation Development Company, a corporation; [and] the heirs, representatives and devisees of and all persons claiming under Calvin N. South-er, deceased. . . .”

The bill further alledged:

“. . . [T]hat said Southern Plantation Development Company is a corporation organized and existing under the laws of the State of Alabama, but Orators are unable to learn where its principal office and place of business is located, after diligent inquiry, though Orators are informed and believe, and therefore allege the fact to be, that respondent Pearl G. Baker, whose address is Foley, Alabama, is its Secretary; that Orators are unable to ascertain, after diligent inquiry, the names, ages and addresses of the heirs, representatives and devisees of and of any persons claiming under said Calvin N. Souther, deceased. . . . ”

The complainants properly published a notice of the proceeding for four consecutive weeks in the Baldwin Times, a local newspaper. A decree pro confesso was taken against several of the defendants, including Southern Plantation and those persons claiming under Calvin N. Souther. Several other defendants answered and generally denied the allegations of the complainants. Testimony was then taken by a commissioner, after which the trial court entered its final decree quieting title in the complainants. This Court dismissed the appeal from the 1942 decree. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148 (1944).

H. W. Souther, purportedly as “president” of “Southern Plantation Development Company”, as lessor, on April 2 and July 1, 1977, did execute three oil, gas and mineral leases in favor of Johnny May, as lessee. Johnny May and Betty R. May, his wife, then executed assignments of two of these leases to Clayton W. Williams, Jr. on July 4, 1977. All claims under these initial leases were subsequently disclaimed by Williams and May who then obtained leases from various members of the Souther family, including the appellants H. W. Souther, Edwin D. Souther and Calvin N. Souther.

On March 20, 1978, the appellees filed a Motion to Show Cause, under the same docket number as the 1943 case (the docket number was subsequently changed to a new number, but the style remained the same), and asked the court to enforce its prior decree. The appellees alleged that they are the present owners of the mineral rights to the subject lands as purchasers from the successful complainants in the 1942 action. The appellees requested the court to have the appellants show cause why they should not be held in contempt of court for violation of the 1943 decree; they also asked the court to expunge from the records of the Probate Court of Baldwin County the mineral leases recently executed by persons claiming to have an interest in the minerals; they also requested the court to enter its order enjoining the appellants from asserting any interest in the subject lands.

The appellants’ answer and counterclaim to the Motion to Show Cause alleged that the 1943 decree is not binding on them because at that time Southern Plantation had ceased to exist by operation of law and “. . . any purported service over said corporation or any appearance in said case by said corporation was void; [and] that any purported service over and against any successors in interest to Southern Plantation Development Company . . . ” was not made pursuant to the law. Appellants further alleged that on May 1, 1921, Southern Plantation conveyed to one C. N. Souther a 50-year mineral deed reserving an interest which ripened into a possessory right of the successors of Southern Plantation on May 1, 1971; that complainants were not diligent in the original proceeding in searching for named defendants; and that the Grove Act, as it existed in 1943, did not afford them their constitutional right of due process.

The case was removed to federal court, but remanded by U.S. District Judge Virgil Pittman upon a finding of a want of jurisdiction.

Appellants made various discovery requests of appellees seeking information related to the issue of whether counsel (Robert P. Denniston) for the original complainants (who is now counsel for one of the appellees), exercised due diligence in searching for C. N. Souther and his heirs.

Appellees filed a motion to strike the answer, the counterclaim and the discovery motions of the appellants on the grounds that, inter alia, the 1943 decree was a final judgment and that they, as successors in interest, are entitled to its benefits. They also contended that the original action complied with the provisions of the Grove Act, and that the appellants, as successors in interest to defendants who were named as parties in the original action, are bound by that judgment.

The cause and all pending motions were set for a hearing on February 22, 1979, before the Hon. Harry J. Wilters, Circuit Judge of Baldwin County. There was no court reporter present at that hearing; therefore, the only record of the hearing is those facts related in the trial judge’s report of the “Identification of Evidence, Introduced in these Proceedings” and his final order. The appellees, or “movants” as they are referred to by the trial court, asked the court to take judicial notice of its file of the 1942-3 proceeding, and introduced the various leases which they wanted the court to expunge from the records of the probate court. The appellants presented no evidence. The trial court made the following conclusions of law:

“1. The 1943 decree is complete and regular on its face, and affirmatively shows compliance with the provisions of the Grove Act and other applicable statutes pertaining to service of process and publication, as constituted at the time thereof.
“2. The decree on its face held that the two complaining corporations were the true and lawful owners in fee simple of the property described therein. This included the title to all of the oil, gas and minerals in, on and under the said property, and this also included any reversion-ary interest in the same. The decree, on its face, quieted the title in the complainants to said lands against all persons, firms or corporations claiming any right or title to, interest in, or lien or encuin-brance on said land, or any part thereof. The only appeal of the said decree having been dismissed in the year 1944, and the decree having not been reversed or set aside, remains now in full force and effect.
“3. This Court has the power to enforce its own judgments and decrees.
“4. The Movants are entitled to the protection of this Court in the enjoyment of the property rights previously adjudicated in favor of their predecessors in title and adversely to the predecessors in title of the Defendants and intervening Defendants.
“5. The answers and counterclaims filed by the Defendants and intervening Defendants, to the extent that they seek to attack the validity of and to controvert the findings of fact and other provisions of the 1943 decree in these proceedings brought for its enforcement, are due to be stricken. The motions for discovery, seeking to elicit facts or information in support of such allegations and defenses, are due to be denied.
“6. The Movants are only some of the numerous and diverse parties whose titles are held in reliance on the 1943 decree. The Defendants have failed and refused to make any attempt to bring before this Court any of the other parties whose interests would be affected by the attack Defendants seek to make on said decree in these proceedings brought for its enforcement. The manner in which they seek to attack said decree is improper and impermissible and the Defendants have failed and refused to initiate appropriate proceedings to attack said decree and bring the parties who would be affected thereby before this Court.
“7. The motion of Defendants to change the style of this cause is due to be denied.
“8. The oil, gas and mineral leases listed hereinbelow, having been executed by persons who are successors in interest to parties to the 1943 decree, which parties were determined by that decree to have no right, title, or interest in said lands, are invalid as they pertain to the lands hereinafter described; and the assignments of said leases are therefore likewise invalid as they pertain to said lands, in that they are directly in contradiction with the provisions of the decree.”

The trial court granted all relief requested by the appellees with the exception of the prayer to hold the appellants in contempt. The appellants filed a post-judgment motion which alleged, inter alia, that they were denied a trial on the merits and the hearing was no more than a summary proceeding. When the trial court denied this motion, they appealed to this Court.

The issues discussed in this opinion are:

(1) Is the 1943 judgment valid on its face, and not subject to collateral attack?

(2) Is the answer and counterclaim of the appellants a collateral attack on the prior judgment?

(3) Did the Grove Act, as it existed in 1943, violate constitutional due process requirements?

(4) Did the trial court act within its discretion in striking appellants’ request for discovery?

Initially, we hold that based on the record presented, the 1943 judgment is valid on its face as there is no patent lack of compliance with the applicable provisions of the Grove Act as it then existed.

This Court distinguished collateral and direct attacks upon prior judgments in Williams v. Overcast, 229 Ala. 119, 155 So. 543 (1934), when it opined that a direct attack upon a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of that judgment in a proceeding instituted for that purpose, and that a collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted in an attempt to amend, correct, reform, vacate or enjoin its execution.

In Morris v. Merchants National Bank of Mobile, 267 Ala. 542, 103 So.2d 310 (1958), this Court considered an attack against the judgment which had been entered in an in rem proceeding that took place some thirty years earlier:

“The main question argued by appellants is that the trial court should have allowed them to impeach and show to be void a decree of the equity court of Baldwin County in 1927 quieting title to said Section 38 in Old Spanish Fort Development Company, under whom, by mesne conveyances, appellees claim title. We consider that question was settled in Merchants Nat. Bank of Mobile v. Morris, 252 Ala. 566, 42 So.2d 240, 243, where we held that the bill in equity in the 1927 suit ‘contained all the statutory allegations to confer jurisdiction’ and the ‘decree adjudged that they existed’; that ‘by statute the decree has binding effect on persons not parties, if all the requirements are observed’; Tit. 7, § 1127, Code 1940; that ‘one cannot collaterally attack a domestic judgment valid on the face of the record’ but ‘he is confined to a direct attack, sometimes by a suit in equity in the nature of a bill of review’, or ‘section 1128, Title 7, Code,’ or ‘sometimes under the four months statute’; that the trial court erred in giving a charge which had the effect of permitting the equity decree to be impeached, and that the appellants there, appellees here, were due the affirmative charge. We see no reason to depart from our holding in that case.”

We hold that the answer and counterclaim of the appellants constituted an attempt to avoid the binding force of the prior judgment and is, therefore, in the nature of a collateral attack. Appellants made no claim that complainants, in the 1943 proceeding, had perpetrated some form of legal fraud upon the court; therefore, we find that the appellants made no direct attack upon the 1943 decree.

Appellants do claim that they are not bound by the prior decree because the court, in 1943, did not have jurisdiction over them because the complainants, in 1942, failed to exercise due diligence in attempting to effect personal service on them. There is nothing in the record of the 1942 proceeding which indicates the complainants in that case did not, in fact exercise due diligence. Consequently, the findings and conclusions of the trial court are not palpably erroneous. We conclude that the court had jurisdiction of the parties through whom the appellants claim an interest (either Southern Plantation or Calvin N. Souther, or his heirs if he was deceased in 1942).

The court also had subject-matter jurisdiction of any reversionary interest in the minerals. The Grove Act, as originally enacted, was adopted for the purpose of clearing “up all doubts or disputes concerning [land titles].” The judgment entered in 1943 purports to do that. A judgment which is regular on its face and indicates subject matter and personal jurisdiction is conclusive on collateral attack. A.B.C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946); Dothard v. Ridgeway, 54 Ala.App. 429, 309 So.2d 468 (1975).

One of appellants’ main claims is that the Grove Act, as it existed in 1943, did not meet constitutional due process requirements because it did not require the appointment of a guardian ad litem to represent the interests of unknown defendants. We disagree. The Supreme Court of the United States considered the general constitutionality of a statute very similar to the Grove Act in Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918 (1890). The court opined:

“ * * * The question is not what a court of equity, by virtue of its general powers and in the absence of a statute, might do, but it is, What jurisdiction has a State over titles to real estate within its limits, and what jurisdiction may it give by statute to its own courts, to determine the validity and extent of the claims of nonresidents to such real estate? If a State has no power to bring a nonresident into its courts for any purposes by publication, it is impotent to perfect the titles of real estate within its limits held by its own citizens; and a cloud cast upon such title by a claim of a nonresident will remain for all time a cloud, unless such nonresident shall voluntarily come into its courts for the purpose of having it adjudicated. But no such imperfections attend the sovereignty of the State. It has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the person of a nonresident within its limits — its process goes not out beyond its borders — but it may determine the extent of his title to real estate within its limits; and for the purpose of such determination may provide any reasonable methods of imparting notice. The well-being of every community requires that the title to real estate therein shall be secure and that there be convenient and certain methods of determining any unsettled questions respecting it. The duty of accomplishing this is local in its nature; it is not a matter of national concern or vested in the general government; it remains with the State; and as this duty is one of the State, the manner of discharging it must be determined by the State, and no proceeding which it provides can be declared invalid, unless it conflicts with some special inhibitions of the Constitution, or against natural justice.”

It appears that the original proceeding was conducted in conformity with the provisions of the Grove Act which were in effect at that time. In 1942-1943, there was no requirement for the appointment of a guardian ad litem, a provision added in 1951, and found at Title 7, Section 1117(1), Code of Alabama 1940.

The legislature, in 1951, in its wisdom, made a number of changes in the Grove Act, including the addition of a requirement for the appointment of a guardian ad litem to represent and defend the interest of infants, lunatics or unknown parties in the proceedings. Appellants claim that the absence of a provision of the appointment of a guardian ad litem in 1942 for unknown parties made the Grove Act constitutionally infirm. We cannot agree. We are of the opinion that the absence of this provision in the original legislation did not render the act unconstitutional. Arndt v. Griggs, supra.

The appellants claim that it was reversible error for the trial court, on motion of the appellees, to strike the discovery motions the appellants made in support of their attack on the 1943 decree. We do not think so. Under Rule 26(b)(1), ARCP, discovery may be obtained as to matter which is relevant to the subject matter involved in the pending action, and it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Appellees take the position that the information sought by discovery on the part of the appellants in this case was not reasonably calculated to lead to the discovery of admissible evidence, because the appellants were not entitled, as a matter of law, to the relief sought by their counterclaims. As we have indicated, the attack made on the 1943 decree was collateral in nature, and we conclude that the trial court did not abuse its broad powers to control the use of the discovery process in this case. The discovery rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The questions on review, then, becomes one of whether, under all the circumstances, the court has abused its discretion. Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228, 231 (Ala.1978).

In view of all that we have said, we conclude that the 1943 decree was valid and regular on its face, and was rendered in conformity with the Grove Act, which we hold was constitutional. The decree was against all the world, including any predecessors in title of the appellants. It is not subject to collateral attack, as attempted by appellants.

Any direct attack upon the 1943 decree under Rule 60(b), if maintainable, would have to conform with general principles of equity. We note, that under the facts of this case, the 1943 decree, in equity, should now be immune from any attack, except on a ground that a fraud was practiced upon the court. The trial court, in this proceeding, has examined the original decree again and the appellants have neither alleged nor proved that any fraud was perpetrated upon the court by the parties in the 1942-1943 action. In the absence of the most compelling of circumstances, we believe that the 1943 decree should stand.

For the foregoing reasons, the decree of the trial court in this proceeding is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Joe Dixon EDWARDS v. SEABOARD COAST LINE RAILROAD COMPANY, a corp.
    78-872.
    Supreme Court of Alabama.
    May 30, 1980.
    George L. Stevens, Jr. and W. Eugene Rutledge, Birmingham, for appellant.
    L. Vastine Stabler, Jr. and Michael C. Quillen, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee.
   BEATTY, Justice.

Plaintiff filed suit against his employer, Seaboard Coast Line Railroad Company, to recover for injuries he allegedly sustained while attempting to throw a switch in defendant’s railroad yard. After a trial on the merits, the jury returned a verdict in favor of defendant, and plaintiff appeals. We reverse and remand.

The issue for our determination is whether plaintiff should have been granted a mistrial on the ground that the trial judge improperly communicated with two members of the jury in separate incidents during the course of the trial. The first incident occurred during a recess on the first day of trial, after one of plaintiff’s witnesses had testified fully and after plaintiff himself had testified on direct examination.

The record reveals that the following transpired:

THE COURT: The Court had just declared a recess and at that point in time when most of the jurors were filing out of the courtroom, a juror by the name of Mr. Ritter, I believe his first name is John, John D. Ritter, Jr., is my recollection, approached the bench as I was leaving the bench and stated that he had something that he wanted to say to the Court. I invited Mr. Ritter into chambers. He came in chambers and stated to the Court — let’s see if I can paraphrase it again — that his father worked for the Frisco Railroad and had worked for about forty years, and that he knew something about railroading and some of the terms that were being used in court because of his father. He further stated in substance that it was concerning him or worrying him, or words to that effect or characterization, and that he talked to his wife last night about whether he should talk to the Court or not and that he decided that he should, and that he had heard his father over the years mention about the company and about employees and about suits. At about this point in time I just stopped Mr. Ritter and told him that I appreciated him coming in and I may need to talk to him further, but that I wanted to check into a matter before we had any further discussion. Also I asked him if he recalled whether a question was asked about members of family or immediate family being employees of railroads when the lawyers were asking the jury, and said that they did not ask that question. It is the Court’s recollection that there was a question asked by Mr. Rutledge. What was your question?

MR. RUTLEDGE: My question was, do any of your husbands work for the railroad.

THE COURT: I don’t know the correctness of this. I am just relying on recollection, but it is the Court’s recollection that they were not asked whether, by either side, as to whether any members of the immediate family, designating what was meant by that, were employees of a railroad or any railroad. It is the Court’s recollection further that both sides, Mr. Rutledge and Mr. Quillen, did ask probably two or three times in different forms if any juror had any recollection by way of a background or experience as to why they felt that they couldn’t sit as a juror in this case and start off even and both sides being even and render a fair and impartial verdict based upon the evidence and upon the law in the case, and no juror responded.

Prior to putting this on record, there has been some discussion in chambers regarding what to do about this particular situation. At this point I think, Vastine, I will let you state what you feel that the Court should do, and Gene, let you state what you think the Court should do.

MR. STABLER: Let me state for the record, Judge, that I had thought the question had been asked to cover parents or brothers and sisters as relatives, but you and Gene and others seem to have a different recollection on that, and I could be wrong on that point.

THE COURT: What is your recollection on that, Mike?

MR. QUILLEN: I just don’t remember.

MR. STABLER: But, anyhow, in a way I feel the treatment is the same either way. Although, obviously, it would be stronger if the question had been asked. You mentioned before we went on the record that after he got into it that you cut him off, isn’t that right?

THE COURT: Yes. I think I stated that I stopped him.

MR. STABLER: The only question that concerns me is that if he was trying to tell the Court that in some way or other he had a fixed opinion or a bias with regard to this situation, if he was trying to tell the Court that, then I think that a [challenge] is in order. If he was not, I don’t think any of us really have any business knowing what he is thinking about the case otherwise. I don’t think there is any real reason for the Court to inquire. What I would ask the Court to do would be simply to state to him or ask him were you trying to tell me that you felt that you had a fixed opinion. Don’t want to inquire — don’t want to go any further, and if he says no, that was not what I had on my mind, then forget it. If he says yes, then maybe the matter has got to be explored further. I do not think the man should be embarrassed. I do not think any inquiry should be made or he should feel like by coming forward to the Court he has done anything other than be conscientious about it.

I would say this, that if a verdict is rendered and he testifies that he was trying to tell the Court that he was prejudiced, I think you really have a problem then. You have an extra now. You have got a heavy problem after a verdict is rendered.

MR. RUTLEDGE: Well, my position is this. I do not recollect that anyone asked about members of family so as to include a father as a railroad employee. But whether they did or they didn’t, obviously the purpose of a venire examination is to determine whether or not any juror would be prejudiced against one or the other side. And we asked this jury at that time when nobody knew anything at all about the case whether or not they had a fixed opinion or anything in their background that would cause them to be anything other than exact equal. At that time when nobody knew anything, every member of the panel indicated negatively that they did not have such a thing.

Now, we have reached a point in the trial where Mr. Stabler has made his opening statement. I have made mine. Some very strong testimony has been introduced by Mr. Ryals, and the plaintiff has himself given his testimony on direct examination.

Now, realistically, I think we all know that the trials go back and forth. To examine the man at this point about his feelings would seem to me entirely inappropriate because it would amount to examining a juror about how he feels about the case in the middle of the case. The question is not how he feels now, but how he felt before he heard any of the opening statements or the evidence.

Now, Mr. Stabler said, well, perhaps he is trying to tell you that he has a bias. Well, I sincerely hope that at this point, which is surely the apex of my case, that there might be some bias in my favor. That is not the inquiry. The inquiry is whether or not before the trial started, before you heard any evidence did you have a fixed opinion or would you be unable to decide the case on the basis of the evidence and the law. Now, that question was asked and answered negatively and at this point I just don’t think that is a proper inquiry, Your Honor.

MR. STABLER: Well, it is done all the time after a verdict comes in, and I agree with you that it has to do — prejudice means to prejudge. It has to do with what your attitudes were independently of the evidence prior to trial. I don’t disagree with your statement of the test, but I think I have stated my position.

THE COURT: All right. I am thinking out loud with you gentlemen now, and that is to bring Mr. Ritter into chambers with the court reporter and to put the entire conversation between the Court and Mr. Ritter on record, of course, and to premise anything that I say to him on the basis that he will have to — that inquiry had been made of him not about whether his father or anyone else worked for the railroad, but as to whether he could be fair and impartial in the trial of the case, and that there was no response from him or from any other juror but what they could be fair and impartial, and whether or not that was a true and correct answer. That is, by not answering. And that, if so, then that he was still qualified as a juror.

MR. RUTLEDGE: Your Honor, at this point of the trial when I hope I am at the best point, to emphasize that at this point he ought to be fair and impartial is to say that what you have heard should not influence him. Judge, that is the reason I put the evidence on.

THE COURT: I realize that that puts it in a difficult position.

MR. STABLER: Now, Judge—

MR. RUTLEDGE: That is why I have introduced this evidence, to influence them.

THE COURT: Suppose this. Again, say you get a verdict and the defendant files a motion for a new trial and gets an affidavit from this juror that says I was just wrong. I just didn’t respond to the question. It just didn’t sink in with me at the moment, but that I felt very strongly one way or the other before this trial started, or even a stronger affidavit?

MR. RUTLEDGE: Suppose I don’t get a verdict because Mr. Ritter goes back to the jury room and says to the jury even after the plaintiff has testified and Mr. Ryals testified the Judge has told me that I should be fair and impartial. Then I don’t have an opportunity to get a new trial. I will worry about the new trial after I get the verdict in this trial.

MR. STABLER: Judge, one thing about your procedure. I am perfectly willing for you to talk to him off the record and to put on the record your summary of the events. I have no objection whatsoever.

THE COURT: I would rather it to be on the record for everybody’s sake.

MR. RUTLEDGE: Your Honor, this can’t help but prejudice my case. There is no way on earth that you can bring that man in here at this point in this trial and inquire as to his impartiality and fairness without creating in his mind the impression that what has taken place here, which is my strongest evidence, should not have influenced him. There is no way you can do this without creating that impression in his mind. And then if he conveys that to the rest of the jury, we, of course, will never know. I can’t in an effort to get a new trial question the jury as to what was said in the jury room.

THE COURT: They can’t impeach their verdict, we’ll put it that way. Let me think about it. Then whatever is done, if anything is done, will be on record and we will have it read back to you gentlemen.

Over plaintiff’s objection, the trial judge later met with juror Ritter in chambers:

(WHEREUPON, the following examination of Mr. Ritter was had by the Court in the Court’s Chambers:)

Q (BY THE COURT:) Let me explain this to you, sir. There are some things the Court can do and some things the Court cannot do.

A Yeah.

Q So that we will have a complete record of everything that transpires, for the benefit of both sides of this case, I have asked Kathie to come in here and to record what is taking place.

A Okay.

Q That way, anything that the Court says or does that may be improper as a matter of law, then it can be preserved for any review if such should become necessary. I am not suggesting that it would be necessary in any way, but it is just routine that in court we take everything down.

A I understand.

Q And that is all this is, is routine, and please do not be influenced in any shape, form or fashion by us being in here together and it being recorded.

A Okay.

Q I stopped you when you came in at the recess from what you were about to tell me.

A Right.

Q For the reason that there are always limitations on what the Court can do and not do. I thought that it was appropriate and proper at that point to stop you. It would be better for me just not to know at that particular stage of things.

Now, first and foremost, by us being in conference here again, please, do not be influenced in any way in connection with this case.

A Right.

Q You start off on Monday morning as a juror by taking an oath.

A Right.

Q You should fulfill that oath and that obligation throughout your tenure as a [jur- or] whether on this case or any other case.

A Right.

Q That is number one.

A Right.

Q Number two, certain questions were asked and certain questions were not asked on what we call voir dire examination by the respective attorneys. It is the Court’s recollection, and I believe you stated to me that it was yours, that no one asked the question about members of your family having worked for a railroad.

A Right.

Q In that regard, that is the responsibility of the attorneys to have asked the question if they feel that it needs asking.

A Right.

Q It is not your responsibility as a juror nor is it the Court’s responsibility. That is their field of responsibility.

A Right.

Q Now, the question was asked by both sides in substance, that if anyone of the members of the panel in searching their own hearts and minds and from their own individual backgrounds, if they felt that there was any reason why they couldn’t start off even and give both sides a fair and impartial trial.

A Right.

Q No one responded to that.

A Right.

Q So, everyone says I can do that.

A Right.

Q Now, that is all that the Court asks you to do or any other juror to do.

A Right.

Q You will weigh the testimony that you hear and naturally at some point in time you will be influenced one way or the other.

A Right.

Q As all other jurors will. If they weren’t influenced, they couldn’t reach a verdict.

A Right.

Q But you will fairly weigh all of the evidence and endeavor to give each side a fair and impartial trial. You are the judges of the facts, you and the jury.

A Right.

Q And you are seeking the truth.

A Right.

Q I am not saying to you at this point to don’t be influenced by what you have heard to this point. That is for you to say. That is for you to say how you will weigh the evidence that you have heard to this point.

A Right.

Q And that you will hear after this point, and you will be influenced in whatever way your conscience dictates for you to be influenced in reaching a fair and just verdict.

A Right.

Q Also, in weighing all of the evidence and in seeking the truth, you will take the law that the Court gives to you at the conclusion of the case. Now, with that explanation, and you notice I am trying to be rather careful in connection with what I am saying because I don’t want to influence you one way or the other. It is improper for me to do so. It would be improper and I am not undertaking to do it.

A Right.

Q And I don’t know what your feelings may be and I am not going to inquire as to what your feelings may be. I know how we started off.

A Right. Right. Well, as I said, this did not come into mind until my wife mentioned it to me. It had not entered my mind until she said something about it and I thought about it. Since listening to it, af-terwards, since we had our short conversation, my mind has been, because of what has been said out here and not because of what I have known, has been swayed back and forth continuous.

Q That is a natural process.

A Right.

Q And the only thing that I am undertaking to do, and the Court would instruct you to do, is just to weigh it, fulfill your function as a juror and give both sides a fair and impartial trial. That is all anybody can ask of you.

A The reason why I told you that because I felt obligated to tell you because I did not — the thought did not come through my mind at the time when he asked that. I guess it passed my mind, but it did not come out that it might be an overriding factor. I have always considered myself a fair person and I try to. weigh each thing on its own.

Q Of course, you will listen to what the Court’s charge is in connection with the law arid all the instructions that the Court gives you at that particular time and use that in connection with the truth as you find it.

A Right.

Q Thank you.

A Thank you.

Q No problem.

A Okay.

After the meeting between the judge and Mr. Ritter, the attorneys were assembled and the court reporter’s transcript of the meeting was read. At that time, plaintiff moved for a mistrial:

MR. RUTLEDGE: Judge, I am going to do something I have never done before. I am going to move for a mistrial. I can’t help but feel that we have a situation here in which a man was in the position of having a father somewhat in the same position as my client, that is, an employee of a railroad company. It may be that Mr. Stabler and Mr. Quillen would not have wanted such a person to sit as a juror on this case. Well, in the event that they had an opportunity to ask whether anybody had any parents or what have you that were employed by the railroad company, they did not do that. They did ask whether or not anybody would be influenced to begin with and favor one side or the other, and this man said no, he wouldn’t be.
Now, we have brought him in here and you have in effect asked him to put out of his mind what he learned in his lifetime through his associations with his father. Now, I can’t help but feel that urging him to do that especially has been so prejudicial to me that the man really could have no real reaction other than leaning as far as he can the other way to try to comply with the Court’s repeated instructions that he be absolutely fair and impartial. I can’t help but feel that would be the effect of it.
THE COURT: Well, let me just say this, and, of course, you have every right and should state your feelings in connection with it and put it on the record. I did say to him that it was appropriate and proper for him to be — or in words to this effect — influenced by what he has heard because he has heard something that would influence him whichever way. I also urged him to listen to the Court’s instructions in connection with the law of the case and all of the Court’s instructions in which I routinely tell them that they are all individuals, they have all had experiences in life, and that law is very reasonable. And I tell them that they will take those experiences individually and collectively and use their good common sense along with the instructions that the Court gives them and the law in making up and reaching their verdict in this case. I routinely do that in every case, not just would do it in this case. I don’t know whether that part of the instructions would overcome the area in which you have concern.
MR. RUTLEDGE: I would have had absolutely no objection to the Court leaving the man alone and saying I am going to give you all instructions at the end of this case, Mr. So-and-so, and I expect you to follow them. That is what I objected before we did this, thinking that that would be the way to handle it to leave him as part of the group and not single him out for special attention. But I don’t see how a general charge like that would overcome—

The second incident occurred later in the trial, during a recess, when a different jur- or approached the trial judge in the bailiff’s office outside the judge’s chambers. Although neither the judge’s nor the juror’s remarks were transcribed during the encounter, the judge summarized the conversation for the record:

THE COURT: As I got off the bench again and came into the office, I was standing there in the bailiff’s office and the juror, Mr. Reeves, R-e-e-v-e-s, [who] as I recall, works for a pharmaceutical company, came in and in substance said, Judge, do I have to forget about all that I know about medicine in connection with being a juror in this case, or words to that effect. I answered him no, sir. I said that you bring with you certain experiences into the jury box that you have had in life and that this will be covered in connection with the Court’s charge to you at the end of this case. He then said something to the effect about a question — if he had a question, and I said if you have some question, if you will indicate it to the Court, then I will supply you with a pad, tablet or something, on which you can write what the question is. There are some questions which are proper and some questions which are not proper, and if you write it that will give the Court the opportunity to pass upon it. He said after you give the charge if I still have some question can I ask it, and I told him, yes, that was permitted and he would be supplied again with a tablet on which to write and he thanked me and left. That is the substance of it.

Plaintiff again objected to the trial judge’s giving an instruction to an individual juror and renewed his motion for a mistrial:

MR. RUTLEDGE: Well, Judge, first of all, I think that the Court ought to lock itself in the bathroom at each and every recess. But that time having already passed, I would have to except to the Court’s statement to the juror. I will have to except first of all to the Court making any statement to the juror. But, secondly, I would have to except to the statement which the Court did make on its merits which you told him that no, he did not have to forget all he knew about medicine, that he could bring his experience [in] life, to the jury box with him. The reason that I do is that the medical condition of the plaintiff is a matter for certain testimony, and there has been no showing that this man has the prerequisite degree of expertise by virtue of his selling pharmaceutical supplies or whatever training he underwent to get ready to sell them, to make an evaluation on his medical knowledge. I think that he has been encouraged by the Court’s remarks to substitute what he conceives to be his medical knowledge for that of a qualified expert. I would except and renew my motion for a mistrial.
THE COURT: All right, sir. What saith the defendant?
MR. STABLER: No exception.
THE COURT: All right. Overruled.

At the conclusion of the evidence, the case was submitted to the jury, which found for the defendant. Plaintiff then filed a motion for a new trial, alleging that:

1. The trial court erred in giving individual instructions to one of the impaneled jurors in the chambers of the presiding judge in the absence of counsel and parties and outside the presence of the other impaneled jurors;

2. The trial court erred in giving individual instructions to another of the impaneled jurors in the bailiff’s office, outside the presence of the other impaneled jurors, outside the presence of counsel, and off the record;

3. The trial court erred in overruling plaintiff’s motions for mistrial made after each incident.

The motion was overruled, and plaintiff brought this appeal.

As the foregoing excerpts from the transcript indicate, we are here confronted with two separate situations in which an individual juror approached the trial judge with a problem. In the first incident the trial judge elected to meet with counsel before proceeding to instruct the juror, on the record, about his duties as a juror. When the second juror, Mr. Reeves, confronted the trial judge with his question, the judge immediately instructed him that he brought his experiences in life into court with him. It is to be noted that on both occasions the events that initially transpired between the judge and the two jurors were off the record and outside the presence of counsel and the other jurors. Although counsel may have had the opportunity to be present at the later discussion in chambers between Judge Callaway and Mr. Ritter, the attorneys were not afforded that chance during the incident involving Mr. Reeves.

This Court has never had occasion to address the question of the propriety of communications during a trial between a judge and an individual juror in the absence of counsel and before the cause has been submitted to the jury. Nor does it appear that the precise issue posed here has been directly confronted by an appellate court in any other jurisdiction. However, our case of Matthews v. Liberty Mutual Insurance Co., 286 Ala. 598, 243 So.2d 703 (1971), although factually distinguishable from the instant case, provides some insight concerning the considerations which should be weighed in a case involving judge-juror communications during a trial.

In Matthews, after deliberations had begun, the jury requested additional instructions from the trial judge. The judge went into the jury room, unaccompanied by counsel for either party, and instructed the jurors that they were to consider all of the evidence together with all of the matters presented to them by the court. This Court held that the action by the trial judge constituted prejudicial error, which mandated reversal. Two considerations were of paramount importance in Matthews in reaching the conclusion that the trial judge’s conduct was conclusively prejudicial: (1) the unique position of a trial judge in a jury trial, and (2) the necessity for maintaining judicial impartiality, both in fact and in appearance.

A trial judge, by virtue of his authority over the conduct of proceedings in the courtroom and his superior knowledge of the law, is in a position from which he may be well able to influence the outcome in a particular case. As this Court pointed out in the Matthews case:

“ * * [A] judge of the court occupies a different attitude towards the jury from that of any other person. In the heat and passion often engendered on the trial, in the conflicting arguments and statement of law by opposing counsel, the jury naturally look to the court to bring certainty out of the confusion. An act, a sentence, or a word from the presiding judge may exert a controlling influence on the verdict. It is for these reasons that a communication by the judge to the jury stands on a different basis from that of another person, and for a like reason the law should throw a higher degree of circumspection around such communications. * * * ’ ” [Quoting from Danes v. Pearson, 6 Ind.App. 465, 33 N.E. 976 (1893).]

Off the record communications between the trial judge and individual jurors, especially when the attorneys for the parties are not given the opportunity to be present, pose the risk that the jurors with whom the court has conversed will be unduly influenced by their individual impressions of what the judge meant and that they will convey those possibly erroneous impressions to the remaining jurors. We are unable to condone the conduct by the trial judge in this case, particularly his conversation with Mr. Reeves, when the judge’s own summary of what took place indicates that Mr. Reeves was given a private instruction by the judge. As we stated in Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180, 19 So. 540 (1895) (quoted in Matthews, 286 Ala. at 604, 243 So.2d 703):

“We can not inquire, in such a case, what instructions were given by the court to the jury, — whether they were correct or incorrect, prejudicial or otherwise. * * The only safe course, therefore, when it is established that the court, without some overruling necessity therefor, gave instructions to the jury * * * in the absence of the complaining suitor’s counsel, engaged in representing him on the trial, and without reasonable notice to them and opportunity to be present, is to withhold all inquiry and investigation into the correctness of the instructions or action of the court, and treat them as conclusively prejudicial, by reason of the suitor’s deprivation of his constitutional right. * * * ”

With regard to the Reeves incident, we also note the express mandate of ARCP 51:

Every oral charge shall be taken down by the court reporter as it is delivered to the jury. . . .

The record does not reflect exactly what the trial judge said to Mr. Reeves in response to his question. Although we would not call into question the integrity of this justifiably respected trial judge or the accuracy, as far as possible, of his summary of the encounter, we feel that a litigant is entitled to the protection of the procedural imperative embodied in Rule 51 which insures that the litigant or his counsel will have the opportunity to know exactly, word for word, what oral instructions are given by the trial judge to the jury.

The second principal concern of this Court in the Matthews case was the necessity of a trial court’s preservation of the appearance of objectivity; as we mentioned in Matthews:

“It has been wisely stated that ‘next to the tribunal being in fact impartial is the importance of its appearing so’. Shrager v. Basil Dighton Ltd., (1924) 1 K.B. 274, 284. . . . [Quoting from Glendenning v. Sprowls, 405 Pa. 222, 174 A.2d 865, 866 (1961).]
“Whether or not injury or injustice has resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. It is only through the granting of a new trial in situations like this, as well as vigilant efforts by the officers of the court to prevent such occurrences, that public confidence in the jury system may be preserved. Rasmussen v. Miller, 268 Wis. 436, 68 N.W.2d 16, 18.” [Quoting from Daniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868, 872 (1965).]

The actions of the trial judge in the instant case, unfortunately, would pose at least as great a threat to the integrity of our system as those of the judge in the Matthews case; indeed, the appearance here could well lead to greater suspicion in the system, for the communications in this case were made not to the entire jury, but to individual jurors. Although we are certain that the judge was prompted only by the highest motives in privately conversing with Messrs. Ritter and Reeves during the case, nonetheless the actions of the trial court were of such prejudicial nature as to require reversal. In light of our conclusion, there is no need to address the other issue raised by plaintiff.

Accordingly the judgment of the trial court must be, and. is, reversed and remanded.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    Navis JENNINGS, Jr. v. STATE of Alabama.
    79-75.
    Supreme Court of Alabama.
    May 30, 1980.

      Jeffrey S. Chapman of Wilson & Chapman, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   SHORES, Justice.

Appellant, Navis Jennings, Jr., a thirteen-year-old male, was adjudicated a delinquent on the basis of two delinquency petitions alleging that he committed the criminal act of assault with intent to ravish. He was committed to the Department of Youth Services. He appeals this adjudication, alleging that the trial court erred in refusing to apply the common-law rebuttable presumption that a child between the ages of seven and fourteen is incapable of forming the intent to commit a crime. Because we agree with the trial court that the presumption is not applicable to juvenile proceedings, we affirm.

Appellant contends that because a delinquent act is defined by Code 1975, § 12-15-1, as an “act designated a crime under the law of this state,” the state must prove all the elements of a crime, including capacity to form the intent to commit a crime, and that the Juvenile Code thus leaves intact the common-law presumption of incapacity. However, we believe that the protections afforded a juvenile under Code 1975, § 12-15-1, et seq., render unnecessary the limited protection available at common law to children charged with criminal acts. As stated by the Florida Court of Appeals, which examined the identical issue in connection with their own Juvenile Code:

The common law presumption of incapacity . . . was available as a defense to children charged with crimes and susceptible to receiving punishment as if they were adults. The intent of the presumption was to afford juveniles some limited protection against the ordinary criminal process. Given the extensive protections afforded juveniles in Florida’s Juvenile Court Act, the defense of incapacity would appear to be unnecessary. Moreover, the survival of the incapacity defense could act to defeat the juvenile statute’s effectiveness by preventing the reformation of children who successfully argue the defense.

K. P. v. State of Florida, 327 So.2d 820 (Fla.Dist.Ct.App.1976). See also “Juvenile Proceedings — Common Law Presumption of Criminal Incapacity of Minors Under Age Fourteen Inapplicable to Juvenile Delinquency Proceedings — In re Davis,” 34 Maryland L.Rev. 178 (1974).

As does the Florida statute, our juvenile statute removes juveniles who have committed a crime from the jurisdiction of the criminal justice system, and establishes an entirely separate system to minister to them, a system whose aim is rehabilitative rather than retributive. In recognition, however, that rehabilitative measures sometimes involve a partial or total deprivation of liberty, a juvenile who is charged with delinquent acts or is alleged to be in need of supervision is extended many of the due process protections guaranteed defendants in a criminal trial, thereby receiving the benefit of both systems. In particular, Code 1975, §§ 12-15-66 and 12-15-67, guarantee juveniles the privilege against self-incrimination, exclude evidence illegally obtained and extrajudicial statements which are constitutionally inadmissible, and prohibit multiple criminal or juvenile proceedings based on the same offense. Applying the common-law presumption of incapacity, which was designed to protect juveniles from the rigors of trial as an adult, to juvenile proceedings would increase the protection provided juveniles only insofar as it would operate to remove some juveniles from the operation of either system. Far from benefiting the juvenile so affected, it would prevent the child from receiving urgently needed therapy and supervision, and perhaps endanger those around him or her.

Counsel for appellant has pointed out that, while this issue is one of first impression in Alabama, other courts have examined it, with contrary result. We are referred, in particular, to Commonwealth v. Durham, 255 Pa.Super. 539, 389 A.2d 108 (1978), In the Matter of Andrew M., 91 Misc.2d 813, 398 N.Y.S.2d 824 (1977), In re Gladys R., 1 Cal.3d 855, 464 P.2d 127, 83 Cal.Rptr. 671 (Cal.1970), People ex rel. Terrell v. District Court, 164 Colo. 437, 435 P.2d 763 (1967), State ex rel. Slatton v. Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963).

Not all of these cases are directly on point, or in conflict with our position. People ex rel. Terrell, supra, for example, merely stands for the proposition that Colorado’s Children’s Code bars the institution of felony charges against a child younger than sixteen. In so doing, the Code effectively raises the age of conclusive presumption of incapacity to commit a crime from seven, the common-law formulation, to sixteen. It does not hold that a juvenile under the age of sixteen is presumed incapable of committing a delinquent act. The court concluded that the state legislature, in exercising its power to create and define crimes, had removed offenses committed by juveniles from the criminal code. By removing a juvenile offender from the jurisdiction of the criminal courts, the legislature had not released the offender, but had confided him or her to the juvenile courts. State ex rel. Slatton v. Boles, supra, reaches the same result by the same route.

This reasoning is consistent with our own. It also explains our disagreement with Commonwealth v. Durham, supra, and In the Matter of Andrew M., supra, also cited by appellant. Both these cases conclude that application of the presumption of incapacity to juvenile proceedings is required by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the landmark United States Supreme Court case which extended many of the constitutionally required procedural safeguards available to adult criminal defendants to juveniles subject to delinquency proceedings. As explained by the New York court:

If we view juvenile proceedings as the Supreme Court does in Gault (supra), and Matter of Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368] [citation omitted], as being a special category of ‘almost criminal’ liability, the fiction of a conclusive presumption of incapacity to commit a crime becomes a historical vestige with roots in pre-Gault philosophy which falls in the face of the reality of minimum periods of secure incarceration newly enacted in the Juvenile Justice Reform Act of 1976 [citation omitted]. With this reality in mind, the rebuttable presumption of incapacity, ostensibly swallowed within the conclusive presumption enacted by the Family Court Act, takes on new relevance. For, if the presumption which purports to absorb is illusory, how can it destroy by sheer inference the substantive defense of infancy available via the Common Law rebuttable presumption?

398 N.Y.S.2d at 826.

However, while Gault required procedural safeguards to be applied to juvenile proceedings, it did not attempt to define the jurisdiction of state juvenile courts, or to define the offenses which would bring juveniles under that jurisdiction. That remains the prerogative of state legislatures. Our legislature has, as explained above, removed capacity to understand the wrongfulness of one’s conduct from the elements which the state is required to prove in adjudicating a juvenile delinquent. This it may do without transgressing constitutional barriers. Capacity, or lack of it, may, of course, be taken into account during the dispositional hearing.

For these reasons, we conclude that the trial court did not err in refusing to apply the common-law presumption of incapacity to a juvenile proceeding. On this view of the case, it is unnecessary to reach the other issues raised by appellant. The adjudication of the trial court is affirmed.

AFFIRMED.

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


text:
    AAA EQUIPMENT & RENTAL, INC., a corporation, et al. v. George BAILEY, d/b/a Bailey Mobile Home Service, et al.
    79-143.
    Supreme Court of Alabama.
    May 30, 1980.
    Dennis G. Riley of Camp & Riley, Huntsville, for appellants.
    John O. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   BEATTY, Justice.

This is an appeal from the grant of summary judgment for the defendants. We reverse and remand.

The basic legal question concerns the effect of Rule 13(g), ARCP, upon the substantive doctrine of collateral estoppel. Specifically, the question is whether or not the adverse determination of issues by a stipulated judgment entered in a prior action against co-defendants collaterally estops one of these co-defendants from relitigating the same issues, involving the same factual transaction, in subsequent litigation between those co-defendants.

The two actions arose out of these facts: George Bailey, doing business as Bailey Mobile Homes Service, rented a fork-lift vehicle, colloquially known as a “Case tractor,” from AAA Equipment and Rent-All, Inc. (AAA). Jimmy E. Cothren was driving this vehicle on a public highway in Madison County when it overturned and became involved in an accident with the automobile of William Eugene Barksdale.

Barksdale brought an action against Co-thren, George Bailey, AAA, and certain fictitious parties, claiming damages against all the defendants for negligence and wantonness in causing the tractor to overturn and injure the plaintiff. With respect to AAA, the plaintiff Barksdale charged that AAA had rented the vehicle to Bailey, and that AAA had negligently maintained the vehicle, negligently allowed the vehicle to be operated on the public highway, wantonly maintained the vehicle, wantonly allowed the vehicle to be operated on the public highway, and negligently instructed or negligently failed to instruct the lessees in the vehicle’s proper operation.

After all the pleadings had been filed, and following discovery and a pre-trial hearing, a settlement was reached between the parties pursuant to which the trial court entered this judgment:

Plaintiff, in open court, orally amends the complaint to delete the fictitiously named parties so that the only defendants remaining in said cause are Jimmy E. Cothren, George Bailey, and AAA Equipment and Rent-All, Inc. Issue is then joined on the complaint of the plaintiff as amended, and the answers of the defendants. With the consent of the defendants and leave of Court, plaintiff withdraws the demand for trial by struck jury. It is then stipulated and agreed by and between the parties that judgment may be entered in favor of the plaintiff and against all defendants for the sum of Two Thousand One Hundred Fifty Dollars ($2,150.00).
It is, therefore, considered, ordered, and adjudged by the Court that the plaintiff have and recover of the defendants the sum of Two Thousand One Hundred Fifty Dollars ($2,150.00).
Costs are taxed to the defendants.
Dated: January 23, 1979.

Several months later this second action was filed. In this action AAA, formerly a co-defendant, is co-plaintiff suing the other co-defendants, George Bailey and Jimmy E. Cothren. AAA’s collision insurance carrier, Lincoln Insurance Company, is AAA’s co-plaintiff in this second action, having a subrogation interest derived from its earlier payment to AAA of the sum of $12,496.01 as damages resulting from the collision which was the subject of the first action. In this second action the plaintiffs, AAA and its derivative co-plaintiff, Lincoln, charged the defendants with negligence:

[T]he defendants negligently caused or negligently allowed a vehicle leased from the Plaintiff, AAA Equipment and Rent-All, Inc., to overturn in the highway.
4. On the date of said accident, the vehicle of the Plaintiff, . . . was a commercial vehicle and as a direct and proximate consequence of the negligence of the Defendants, the Plaintiff, . was caused to suffer the loss of use of said vehicle and therefore claims as damages the reasonable value of the loss of use of said vehicle.

The plaintiffs claimed damages in the amount of $15,000.00, costs and interest.

The defendants’ answer to this complaint was: 1. A general denial; 2. Contributory negligence in renting defective equipment; 3. Exoneration under the rental contract; 4. Release under the terms of the rental contract; 5. Waiver under the terms of the rental contract; and 6. Release.

In the course of pleading the defendants moved for summary judgment:

[O]n the ground that it is barred by the judgment entered in Civil Action No. CV-78-625S, ... in which the plaintiff, AAA Equipment and Rent-All, Inc., was a defendant along with the defendants in this action, and said action arose out of the same transaction which is the subject of the instant suit; and there is no genuine issue as to any material fact and these defendants are entitled to a judgment as a matter of law.
This motion is based upon the pleadings in this cause and the pleadings and judgment entered in Civil Action Number CV-78-625S in the Circuit Court of Madison County, Alabama.

Summary judgment was granted, the cause was dismissed with prejudice, and this appeal followed.

The plaintiffs concede that any claim between the parties to this second action would have been a cross-claim under Rule 13(g), ARCP. That concession is correct under the rule:

A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

The plaintiffs, however, contrast the language used in Rule 13(a), a procedural rule which, in general, makes it mandatory to plead compulsory counterclaims, and the language of Rule 13(g), another procedural rule which makes the pleading of cross-claims by one party against another party only permissive. The plaintiff’s conclusion from this variation in the language used is that the co-party may either plead the cross-claim in the original action or reserve it for later and independent litigation.

That position is well-taken. A cross-claim is asserted against a co-party; a counterclaim is asserted against an opposing party. Co-parties occupy the same side in the principal, or initial, litigation. An opposing party is one who asserts a claim against a prospective counterclaimant in the initial case. Augustin v. Mughal, 521 F.2d 1215 (8th Cir.1975). Thus, under the language of Rule 13(g), ARCP, the bar to later assertion of claims under the counterclaim practice of Rule 13(a), ARCP, does not apply to cross-claims. Augustin v. Mughal, supra; Wright & Miller, Fed.Prac. & Proc. § 1431.

Because the doctrines of res judi-cata and collateral estoppel are so similar it would not be out of place to disassociate res judicata as an issue in this case. At the outset it should be stated that neither party to the present action argues that the first judgment had any res judicata effect upon the second judgment. That position is proper here. Res judicata requires substantial identity of parties. Wheeler v. First Alabama Bank of Birmingham, Ala., 364 So.2d 1190 (1978). Even if additional parties are joined in the second action, the former judgment still will operate as a bar to the latter if the party against whom res judicata is asserted was a party formerly. Geer Bros., Inc. v. Crump., Ala., 349 So.2d 577 (1977). The doctrine includes not only those who were actual parties but also all persons who are in privity with them, that is, having a mutual or successive relationship to the same rights of property. Interstate Electric Co. v. Fidelity & Deposit Co. of Maryland, 228 Ala. 210, 153 So. 427 (1934). That case, however, made it clear that “a person who can claim the benefit of a judgment as an estoppel [res judicata] upon his adversary is one who would have been prejudiced by a contrary decision in the [first] case.” (Emphasis added.) Ibid. at 228 Ala. 212, 153 So. 428. In other words, the parties estopped by the judgment must have been litigants against one another. That is the sense in which the following statement was made in H. G. Hill Co. v. Taylor, 234 Ala. 282, 286, 174 So. 481 (1937), in connection with two actions involving the same parties:

In Lawrence et al. v. United States Fidelity & Guaranty Co., 226 Ala. 161, 163, 145 So. 577, it was held that in order for the judgment in the prior suit to render the question in a subsequent suit res adjudi-cata [sic], the same issues of fact must have been involved, within issues pleaded or which ought to have been litigated, between the same parties or privies, and applied to the parties or privies at the time of the rendition of that judgment.

This requirement of adversariness finds support elsewhere. For example, in Gunter v. Winders, 253 N.C. 782, 117 S.E.2d 787 (1961), the facts involved a three-vehicle collision. One car overtook another vehicle and struck it in the rear. The overtaken vehicle was driven over the center line of the road and struck an oncoming truck. The driver of the overtaken vehicle brought an action against the owners and drivers of both the overtaking vehicle and the oncoming truck. He alleged that the sole proximate cause of the collision was the joint and concurrent negligence of the defendants. The owner and driver of the overtaking vehicle pleaded res judicata as to all issues of negligence and contributory negligence on account of a prior action involving the same accident. In the prior action, the administrator of a passenger killed in the overtaken car had sued the owner and driver of the overtaking car and the driver of the overtaken car. The administrator alleged that the separate acts of negligence of the defendants proximately resulted in the death of his intestate. On appeal the North Carolina court held that the allegations and findings in the first case did not establish that the accident was caused by the joint and concurrent negligent acts of the defendants in the second case, and therefore the plea of res judicata could not be sustained. Going on, the court emphasized that reversal was mandated for a more fundamental reason, viz., that “. . .a judgment operates as res judi-cata only with respect to parties who were adversaries in the proceedings wherein the judgment was entered . . .,” leaving “unadjudicated the rights of the defendants among themselves” (citing 30A Am.Jur. Judgments § 411).

In this case the parties were not litigants against one another in the first action. As between themselves, they were not contestants. Bailey and Cothren would not have been prejudiced by a contrary decision in the former case because they occupied the same defensive side as AAA. A decision contrary to the first decision rendered actually would have benefited Bailey and Cothren, not prejudiced them, hence there was no prior mutual estoppel (by judgment) which they could now assert against AAA, their former co-defendant. Clark v. Whitfield, 213 Ala. 441, 105 So. 200 (1925).

The plaintiffs in this second case do not contravene these observations on res judica-ta ; however they do maintain that the consent judgment (based upon the parties’ stipulation) was nevertheless fully binding, citing A. B. C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946). That case does contain such language, quoting 34 Corpus Juris 776:

“If the judgment is general, and not based on any technical defect or objection, and the parties had a full legal opportunity to be heard on their respective claims and contentions, it is upon the merits, although there was no actual hearing or argument on the facts of the cause.” 247 Ala. at 546, 25 So.2d at 513.

Examination of the Kenemer case reveals that it is not controlling in this instance. Kenemer involved two different lawsuits between the same parties on the same vehicular collision. Kenemer brought the first action in Georgia to recover damages from A.B.C. on account of the negligence of the truck driver of the trucking firm. Issue was joined on the complaint and a jury returned a verdict for Kenemer. In the second action, A.B.C. sued Kenemer in Alabama claiming damages arising from the negligence of Kenemer’s driver on the same occasion. Against the contention that the actions were on different claims and that a plea of res judicata was ineffective, this Court stated at 247 Ala. 546-547, 25 So.2d at 514:

The Georgia suit was for damages by reason of the negligent operation of appellant’s [A.B.C.’s] truck, proximately resulting in the injuries complained of and the judgment was accordingly rendered on this issue and necessarily involved a determination of the question of the culpability vel non of both the plaintiff and defendant for negligence. To allow the instant claim as a basis for a right of action against the plaintiff in the former judgment when it was available as a defense to that action, the facts upon which the right of recovery is sought to be based being inconsistent with and in direct opposition to the facts on which the judgment plaintiff first recovered, would be contrary to the simplest and most fundamental principles of res judicata.
There is, of course, a difference between the effect of a judgment as an estoppel against the prosecution of a second action between the same parties on the same claim or cause of action and on a different claim or demand. In the former, a judgment on the merits is an absolute bar to a subsequent prosecution of such claim or demand, while in the latter the prior judgment operates as an estoppel only to those matters in issue or questions controverted and determined. [Citations omitted.]

It is clear that this Court was referring to the rule of res judicata applied in cases founded on the same cause of action by the same parties litigant which we discussed in Geer Bros., Inc. v. Crump, supra, in describing the rule applicable in the Kenemer case. Accordingly, Kenemer is inapposite here because what we have in the instant case is not res judicata (estoppel by judgment) but an issue of collateral estoppel or “issue preclusion.” Indeed, the arguments of both parties proceed on that basis.

On that point the defendants maintain that the issues of negligence and contributory negligence between these co-defendants were decided by the first action, in this fashion: The first judgment for the plaintiff determined that AAA negligently and wantonly maintained the fork-lift vehicle, that AAA also negligently and wantonly allowed it to be operated on the public highway, and that AAA negligently instructed or failed to instruct Bailey and Cothren in its proper operation. These findings, say the defendants, contain implicit findings that these respective breaches of duty proximately caused the vehicle to overturn and injure the first plaintiff. The co-defendant in the first action, AAA, having been found guilty of negligence in that transaction, the defendants’ argument continues, is now collaterally estopped from denying that its contributory negligence proximately caused the injuries complained of here in the second action. The defendants cite City of Mobile v. George, 253 Ala. 591, 45 So.2d 778 (1950), as authority for that proposition. In George the City of Mobile and two defendants named George were co-defendants in an action for wrongful death. The complaint charged that the Georges, doing business as construction contractors, created the defect in the road which caused the death of the decedent, a motorcycle patrolman. The City of Mobile was charged with permitting the defect to remain in the street for an unreasonable length of time. Following trial the Georges were acquitted because of a failure of proof that they caused the defect. The jury found a verdict against the City, judgment was entered accordingly, and on appeal that judgment was affirmed. Later the City of Mobile (which had been a co-defendant with the Georges) brought an action against the Georges and their surety, based upon a contract under which the Georges had undertaken to construct a sewer line, part of which ran along a Mobile street. In this contract the Georges had agreed to be responsible for damages occurring as a result of their negligence. The City of Mobile asserted in the second action that it had been required to pay damages on account of the motorcycle policeman’s death which resulted from the Georges’ negligence in doing their work in that street. The Georges contended that the City was attempting to relitigate an issue which had been determined in the first action. On that issue this Court quoted from Freeman on Judgments, 5th ed., § 425, at 253 Ala. 595-6, 45 So.2d 782.

“But if an adjudication of issues is made between coparties it is res judicata in subsequent litigations between them, even though their separate answers did not purport to raise such issue as to each other. In so far as their rights or obligations inter se are dependent upon their rights or obligations toward their common adversary, the judgment adjudicating the latter is conclusive upon code-fendants ¡n subsequent litigation between them, as where . . . one of two defendants sued as joint tort-feasors seeks indemnity from the other who was exonerated in the action against them

It is clear that in City of Mobile v. George this Court was dealing with a situation in which the first case was actually litigated, that is, trial ensued and a verdict and judgment were rendered. Should that aspect be significant when the doctrine of collateral estoppel is brought to bear in a subsequent action? Put a different way, does a consent judgment have estoppel effect, the effect of precluding subsequent issues?

In Wheeler v. First Alabama Bank of Birmingham, Ala., 364 So.2d 1190, 1199 (1978), this Court set out the elements for collateral estoppel. One of these elements was “(2) issue actually litigated in prior action.” The factual background for that principle involved two actions, in both of which the right to income from certain trusts was in issue. In the first suit that issue was actually litigated, that is, the judgment rendered in it was not based upon default, stipulation, or consent. Cf. Matter of McMillan, 579 F.2d 289 (3rd Cir.1978) (issues involved in an action terminated by default judgment not “actually litigated” for purpose of collateral estoppel). The existence of actual litigation has allowed collateral estoppel in federal decisions. Shore v. Parklane Hosiery Co., Inc., 565 F.2d 815 (2nd Cir.1977) (corporate officers who have had issues of fact determined against them in non-jury trial of SEC suit for injunctive relief collaterally estopped from relitigating those issues before jury in subsequent derivative action of stockholders); Oldham v. Pritchett, 599 F.2d 274 (8th Cir.1979) (co-party defendant allowed to invoke collateral estoppel on issue of negligence in civil action brought after admiralty hearing on exoneration or limitation of liability). [The 8th Circuit Court incidentally, recognized that non-adversity was irrelevant to the doctrine of estoppel, citing Scooper Dooper Inc. v. Kraftco Corp., 494 F.2d 840, at 845 (3rd Cir.1974). Thus the absence of cross-claims between the co-parties did not prevent assertion of the doctrine]. The Fifth Circuit has followed this principle. In Associates Capital Services v. Loftin’s Transfer & Storage Co., Inc., 554 F.2d 188 (5th Cir. 1977), Associates sued in Alabama to collect a debt. The defendant contended that the suit was barred because the plaintiff, an Indiana corporation, had failed to qualify to do business in Alabama. In an earlier case involving this plaintiff, the district court had held adversely to the plaintiff on the “doing business” issue, and in this proceeding the defendant contended that the plaintiff was estopped in the later case from litigating that issue. The Court of Appeals pointed out, however, that the former case had been remanded on appeal in accord with a stipulation of the parties, and settled in the plaintiff’s favor. “Therefore,” the court stated, “the decision of the district court spawned no precedential effect and renders nugatory the question of collateral estoppel.”

It follows from what we have stated that, as between these co-defendants, the judgment entered in the first action was entitled to no collateral estoppel effect because there was an absence of actual litigation between them as adversaries on the issues of negligence and contributory negligence.

We limit our opinion to the issue presented to us and withhold comment upon any other legal aspects of the positions which the parties occupy.

Let the judgment of the trial court be reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Kendall NEIGHBORS v. CITY OF BIRMINGHAM.
    79-204.
    Supreme Court of Alabama.
    May 30, 1980.
    W. Howard Donovan, III of Large & Donovan, Birmingham, for appellant.
    Herbert Jenkins, Jr., Asst. City Atty., Birmingham, for appellee.
   PER CURIAM.

The dispositive issue in this appeal is whether a municipality can be held liable for malicious prosecution. For the reasons discussed herein, we hold that it cannot.

Appellant Kendall Neighbors was arrested by Birmingham police officers G. R. McCreless and M. E. Curry on March 25, 1978, for the offense of “public drunkenness.” He was eventually acquitted of the charge. He subsequently filed a civil suit for malicious prosecution against the City of Birmingham and the police officers. The City moved to dismiss the complaint against it for failure to state a claim upon which relief could be granted. The motion was granted and this appeal followed.

The issue of a city’s liability for malicious prosecution was discussed and settled in the 1927 case of McCarter v. City of Florence, 216 Ala. 72, 112 So. 335, which held that a municipality is not responsible for the acts of its officers, agents, or servants in making false arrests or for instituting a malicious prosecution. This is consistent with the rule in most jurisdictions. At 57 Am.Jur.2d Municipal, School, and State Tort Liability § 111 (1971), the following appears:

As a general rule there is no liability on the part of a municipal corporation for wrongful legal proceedings instituted by its officers for its benefit. Ordinarily, the courts have held that there is no liability on the part of a municipal corporation for wrongfully suing out an injunction, even though done maliciously and without probable cause, for wrongful attachment of property, or for malicious prosecution in the enforcement of police ordinances or in civil actions such as suits to enforce collection of taxes. It is generally held that a municipal corporation is not liable for malicious prosecution of criminal actions by its officers. Thus, a municipality cannot be held liable for malicious prosecution because of the conduct of its police officers or employees or members of its legal department in a wrongful arrest and prosecution in their official capacity, for the reason that as a corporate entity a municipality cannot entertain a malicious intent, and for the further reason that the officers in the performance of their duties connected with the preservation of the public peace are not agents of the municipality, even when enforcing its ordinances, but are regarded as acting in the interest of the public in its plan of civil government.

Appellant insists that McCarter v. City of Florence, supra, was overruled by this Court’s decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), a decision which he contends absolutely abolished governmental immunity in Alabama. We do not agree. Jackson abolished the judicial doctrine of municipal immunity, but recognized “ . . . the authority of the legislature to enter the entire field, and further recognize[d] its superior position to provide with proper legislation any limitations or protections it deems necessary . . . 294 Ala. 592, at 600, 320 So.2d 68, at 75.

In so holding, Jackson gave effect to former Tit. 37, § 502, now Code 1975, § 11-47-190, a legislative effort to impose liability on municipalities for the negligence of their employees, which had been thwarted by the interpretation placed on it by the courts. That section reads in pertinent part:

No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty, . . . and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. [Emphasis added.]

Section 11-47-190 remains the pertinent legislative enactment. It limits the liability of municipalities to injuries suffered through “neglect, carelessness or unskillfulness.” To construe that language to include an action for malicious prosecution would be to expand the words beyond their normal meaning. This we decline to do.

Appellant argues, however, that the phrase we have quoted must be read in conjunction with the closing sentence of the Code section, which provides that whenever the municipality is made liable for the “unauthorized or wrongful acts or the negligence, carelessness or unskillfulness of any person or corporation,” that person or corporation shall also be held liable. Appellant contends that the language, “unauthorized or wrongful act,” would include a malicious prosecution. However, under the first sentence of the section, the municipality is not liable until injury has been suffered through “neglect, carelessness or unskillfulness.” Appellant’s argument is thus circuitous. Until the legislature chooses to expand the liability of municipalities to include damages for malicious prosecution, the rule of McCarter v. City of Florence, supra, based as it is on the language of what is now Code 1975, § 11—47-190, remains the law.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Sarah D. McLAIN v. Claude E. McLAIN.
    Civ. 2109.
    Court of Civil Appeals of Alabama.
    May 21, 1980.

      Stephen R. Arnold, Birmingham, for appellant.
    John W. Haley of Noojin, Haley & Ash-ford, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The husband filed suit for divorce on January 10, 1979. The parties were married for approximately four years. The wife is forty-seven years of age and the husband is seventy-three. After a hearing, the trial court divorced the parties for incompatibility of temperament and made a property division. The new trial motion was denied and the wife appeals.

Before considering the merits of the appeal, we must decide a preliminary matter. The wife has moved this court to strike certain matter from appellee’s brief on the ground that such material is not a part of the evidence presented to the trial court.

The motion is denied, but we wish to assure the appellee that this court will not consider any material that is not a part of the record made in the trial court.

Accordingly, the only issue for consideration on this appeal is whether the trial court committed error in disposing of the home-place.

The rule is well established that we review a judgment by a trial court in divorce cases with a presumption of correctness where the court had heard the testimony and viewed the witnesses. Weed v. Weed, Ala.Civ.App., 358 So.2d 459 (1978).

After the ore tenus hearing, the trial court found a resulting trust in favor of the husband in the homeplaee based on the trial court’s conclusion that the property had been purchased primarily with funds of the husband for the use and benefit of both husband and wife. The trial court then held that each party owns an undivided one-half interest in the property. The court then ordered the homeplaee sold and the net proceeds divided equally between the parties. The wife was ordered to make the mortgage payments pending the sale; however, she was given the sole use and occupancy of the house until the sale was completed.

The property in question was purchased by the parties in 1976 after their marriage for $40,500. Title to the property was taken in their joint names with right of surviv-orship. The evidence shows that both parties contributed to the purchase price, with the husband contributing more than one-half of that amount. The evidence also shows that the husband paid out about $6,000 for repairs and improvements to the homeplace during the time the parties owned it.

Prior to the divorce, the husband, at the insistence of the wife, conveyed to her his one-half interest in the homeplace for a consideration of $100 in cash, assumption of the remaining mortgage payments, and the hope that the sale would save the marriage.

The parties also purchased three other parcels of real property during the marriage which are adjacent to the homeplace. The wife contributed most of the funds for the purchase of these properties, and title is in her name alone. The purchase price for the three parcels totaled $24,750. The trial court awarded the wife this property in the divorce decree. The wife was also allowed to keep cash assets in excess of $50,000 which she brought into the marriage.

The evidence showed that the husband not only contributed to the purchase of the homeplace, but paid out a sizeable sum for repairs and improvements, as well as making some payments on the three adjacent parcels of property. There was also evidence indicating that during the marriage the husband provided the primary support of the parties with the wife spending her salary as she pleased.

The wife contends that the trial court committed reversible error in declaring a resulting trust in the homeplace.

The law in Alabama concerning resulting trusts states that they arise only where one has purchased property with the funds of another and has taken title in himself. Ledbetter v. Ledbetter, 271 Ala. 629, 126 So.2d 477 (1961). It is necessary to show payment by the one claiming the benefit of the trust, or an absolute obligation to pay, incurred by him as a part of the original transaction of purchase at or before the time of conveyance. Hooks v. Hooks, 264 Ala. 66, 84 So.2d 354 (1955). The degree of proof required to establish a resulting trust must be so clear, strong, unequivocal and unmistakable as to establish the fact beyond reasonable doubt. Dorman v. Knapp, 284 Ala. 387, 225 So.2d 799 (1969).

In the instant case, the purchase price for the homeplace was paid by both parties and at the time of the purchase title was taken jointly. Later, at the insistence of the wife, the husband conveyed his one-half interest in the property to the wife for $100 cash, the wife’s agreement to assume the remaining mortgage payments on the property, and the hope that the transfer to his wife of his interest in the property would save the marriage. We think it clear that the above facts do not establish a resulting trust as defined by the above cited cases. Furthermore, we do not think the evidence was “so clear, strong, unequivocal and unmistakable” as to establish the existence of a resulting trust. Thus we conclude that the trial court erred in impressing the homeplace with a resulting trust for the benefit of the husband. Consequently, we conclude that our only alternative is to reverse the trial court’s decision. However, we should not be understood as holding that the trial court is precluded from ordering a sale of the homeplace and dividing the net proceeds equally between the husband and wife. Whether the property to be divided is the separate property of the wife is a factual matter to be determined by the trial court. Foreman v. Foreman, Ala.Civ.App., 379 So.2d 89 (1980). Furthermore, the division of property, after consideration of the equities and contribution of the parties, is a matter for the exercise of the discretion of the trial court and will not be disturbed on appeal except upon a showing of palpable abuse of that discretion. Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975).

That aspect of the trial court’s judgment which relates to the disposition. of the homeplace is reversed, and it is remanded for further proceedings.

MOTION DENIED.

REVERSED AND REMANDED.

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