text:
    Joel E. CARROLL and Harvey H. Heath v. STATE of Mississippi.
    No. 52480.
    Supreme Court of Mississippi.
    April 15, 1981.

      Joe O. Sams, Jr., Columbus, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Joel E. Carroll and Harvey H. Heath were indicted, tried and convicted in the Circuit Court of Lowndes County for sale of more than one (1) kilogram of marijuana. Heath was sentenced to fifteen (15) years with the Department of Corrections and assessed a fine of ten thousand dollars ($10,000) and Carroll was sentenced to a term of twelve (12) years and assessed a fine of ten thousand dollars ($10,000). On this appeal Carroll assigns two (2) errors and Heath assigns one (1) error in the trial below.

I.

Did the lower court err in refusing to grant a peremptory instruction of not guilty for appellant Carroll, and was the verdict of the jury contrary to the great weight of the evidence?

In January, 1980, the Lowndes County Narcotics Unit began an undercover drug operation in Columbus. On January 23, Narcotics Agent Rickey Peterson went to Sambo’s Restaurant for a prearranged drug purchase of approximately one hundred (100) pounds of marijuana. Supporting him nearby and in contact by a body microphone on Peterson, was Officer Harold Dowdle. Inside the restaurant, Peterson and a confidential informer met with appellant Heath, who agreed to sell drugs to Peterson. At the latter’s request, the three men left the restaurant and went to the parking lot where Heath was shown a large amount of money in Peterson’s car and Heath agreed to make a sale to him in the Ramada Inn parking lot. Heath told Peterson he would be driving a silver Lincoln Continental and would be accompanied by someone with a high-powered rifle in the event anything went wrong. Another agent surveilled the transaction and followed Heath, who was driving a brown Toyota automobile, to the Lee Mall parking lot. At that point, Heath got out of the automobile and went inside the mall. A short while later, the agent saw Heath drive by him in a silver Lincoln Continental. That agent continued the surveillance of the brown Toyota until he received radio notice of Heath’s arrest. He then went inside the mall and requested the information booth attendant to page the owner of the brown Toyota. Carroll answered the call, stated that the vehicle was his, and the agent identified himself and arrested Carroll as an accessory to the drug sale. Carroll then denied ownership of the Toyota. He was searched by the officer and a piece of paper was found in his wallet with the following figures on it: “$175.00 X 100.” The marijuana sold by Heath was one hundred pounds at one hundred seventy-five ($175.00) per pound. A search of the vehicle did not reveal drugs, but a handgun was found.

At trial, Carroll testified that he owned the Lincoln Continental and that he loaned it to Heath in Alabama, but had no idea that Heath would use it to transport drugs. He further testified that Heath borrowed the automobile on January 22 and was to return it to him at the Lee Mall in Columbus, Mississippi, after lunch on the next day, January 23, and he only claimed ownership of the Toyota because it was in his possession and control at the time.

Heath testified that he had never sold marijuana before and did so only in response to repeated solicitation from the agents. He admitted that he purchased twelve thousand dollars ($12,000) to fourteen thousand dollars ($14,000) worth of marijuana on January 23 in Alabama and sold it to Agent Peterson later that day. According to him, Carroll had no knowledge of any drug deal and the figures on the paper found in Carroll’s wallet were written by Heath and actually came from his wallet.

In determining whether a peremptory instruction should be granted and whether the verdict is contrary to the overwhelming weight of the evidence, the Court is required to accept as true all the evidence favorable to the State, together with reasonable inferences arising therefrom, to disregard that evidence favorable to the defendant, and, if such evidence will support a verdict of guilty beyond reasonable doubt, the peremptory instruction should be refused. Bullock v. State, 391 So.2d 601 (Miss. 1980); Wright v. State, 387 So.2d 735 (Miss. 1980); Saik v. State, 387 So.2d 751 (Miss. 1980).

The evidence here is circumstantial and Carroll’s connection with the sale may be proved by his actions and declarations and the circumstances surrounding them. Shanklin v. State, 290 So.2d 625 (Miss.1974). The burden was upon the State to prove Carroll’s guilt beyond reasonable doubt and to the exclusion of every other reasonable hypothesis than that of his guilt.

Appellant Carroll relies upon Cherry v. State, 386 So.2d 203 (Miss.1980). That case, however, may be distinguished from the case at bar, since it involved constructive possession of marijuana at a time when it was undisputed that Cherry had been absent from the premises for a period of two weeks, during which time another person brought the marijuana to those premises. In the present case, the evidence indicates the following with reference to Carroll’s connection and participation in the sale:

(1) Heath agreed to sell one hundred pounds of marijuana for one hundred seventy-five dollars ($175.00) per pound and three thousand (3,000) pills for fifteen hundred dollars ($1,500).

(2) He borrowed Carroll’s Lincoln Continental car to transport the marijuana.

(3) He left his own car (the Toyota) with Carroll.

(4) Carroll met with Heath in a mall near the drug drop point on the day of and just prior to the drug sale.

(5) He remained at the mall where the marijuana was located in his Lincoln Continental while Heath made the sale connection.

(6) He initially claimed ownership of the Toyota when confronted, then denied ownership when arrested.

(7) He possessed a writing which contained figures corresponding to the exact weight and price of the marijuana.

(8) Heath admitted writing the figures on the paper which was found in Carroll’s wallet.

We are of the opinion that the facts and inferences in this case presented issues for the jury to determine concerning Carroll’s connection with the sale and his guilt or innocence resulting therefrom and that the court did not err in declining to grant the peremptory instruction of not guilty and in holding that the verdict was not contrary to the overwhelming weight of the evidence.

II.

Did the lower court err in refusing to grant Carroll’s motion for new trial on the ground that State’s Exhibit # 8 was improperly admitted into evidence?

Exhibit # 8 was the writing herein-above referred to which was found in Carroll’s wallet. The court permitted introduction of the instrument on rebuttal, which was objected to by Carroll. The trial judge has wide discretion in admitting rebuttal evidence. Pierre v. State, 364 So.2d 1127 (Miss.1978).

After overruling the objection, he permitted Carroll to introduce surrebuttal testimony, which overcame the prejudice which Carroll contends resulted from such evidence.

III.

Did the lower court err in refusing to grant Heath’s motion for a new trial because Instruction D-7 was improperly refused?

The requested Instruction D-7 on entrapment follows:

“ ‘Entrapment’ means inducing or leading a person to commit a crime not ordinarily planned by them.
Evidence has been presented that the Defendants were induced to commit the crime by law enforcement officers or their agents. For you to find the Defendant guilty, the state must prove to your satisfaction beyond a reasonable doubt that the Defendants were already willing to commit the crime and that the law enforcement officers or their agents merely gave them the opportunity.”

The instruction was properly refused for the reason that the evidence did not make out a prima facie case of entrapment. See Tribbett v. State, 394 So.2d 878 (Miss.1981).

The judgment of the lower court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Gaddis M. COOK v. Sam C. COOK, III.
    79-539.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Rehearing Denied March 24, 1981.

      G. Houston Howard, II of Howard & Dunn, Wetumpka, for appellant.
    Charles W. Gorham of Gorham & King, Birmingham, for appellee.
   MADDOX, Justice.

This is an appeal by the proponent of a will from a judgment in a will contest in favor of the contestant. A jury found that the purported will of Sam C. Cook, Jr., was not his valid last will and testament.

Testator Sam C. Cook, Jr., was born in Elmore County, Alabama, on June 26,1913. He had three brothers and a half-sister. He was graduated from Howard College in Birmingham with a degree in pharmacy. In May, 1941, he enlisted in the United States Navy. He was married in August, 1941, and his only son, the contestant, was born in June, 1942. He was discharged from the Navy in 1944, and at that time was suffering from dementia praecox, a common form of insanity.

After his discharge from the Navy, testator returned to Elmore County and lived with his parents in the old home-place. Gaddis Cook, one of the testator’s brothers and the proponent of this will, returned from service in 1946, and also lived with his parents. In 1947, testator was divorced from his wife and given custody of his son. Thereafter, testator, his parents, the proponent and the contestant lived together in the homeplace. Proponent opened Cook’s Drug Store in Montgomery and testator began working for him.

The testator’s father died in 1953, and shortly thereafter, testator voluntarily entered the V.A. hospital in Tuscaloosa. After his release from the hospital, testator returned to the homeplace and lived there until 1974, when he began living with the proponent.

In 1959, one Georgia Bailey came to El-more County, Alabama, and began cooking for the testator. At trial, she claimed to have been the testator’s common-law wife, testifying that they had lived together for eighteen years.

The contestant, Sam C. Cook, III, ran away from home in 1959, and began living with his uncle, the proponent. In 1960, the contestant joined the Navy. In the same year, testator’s mother died and he was left alone at the homeplace.

After joining the Navy, the contestant never lived in Elmore County again and saw his father, the testator, but twice before his father’s death.

In 1974, testator had surgery for a hernia and upon his return from the hospital, lived with the proponent. After one of their relatives died without a will, causing the settlement of the estate to be protracted, testator asked the proponent, who had attended Jones Law School, to draft a will for him. The will provided that a trust of $5,000 be established and that the trustee pay to Georgia Bailey $150 per month from the trust until her death. The will further provided that the contestant would receive the right to cut timber from property located in Wilcox County for a period of five years. Testator left the remainder of his estate to the proponent, his brother.

On April 12, 1979, testator died, and on April 18,1979, proponent filed a petition in the Probate Court of Elmore County seeking to probate the will of Sam C. Cook, Jr. The probate court set the petition to be heard on May 17,1979, and on May 10,1979, Sam C. Cook, III, the contestant, filed a contest to the will alleging as follows: (1) that the deceased lacked testamentary capacity; (2) that the will was not executed in the manner prescribed by law; (3) that the will was procured by undue influence exerted by Gaddis M. Cook and (4) that the will was procured by fraud by Gaddis M. Cook. The contestant demanded a jury trial and that the contest be transferred to the circuit court. The trial was had in the circuit court and the jury returned a verdict finding that the purported will was not the valid last will and testament of Sam C. Cook, Jr.

The proponent-appellant raises several issues on appeal. These issues may be stated as follows:

(1)Whether the circuit court had subject matter jurisdiction over the case, because statutory requirements were not followed;

(2) Whether the trial court committed reversible error when instructing the jury on the issue of a presumption of undue influence;

(3) Whether the trial court erred in allowing the testimony of a psychiatric social worker on the issue of the testator’s mental condition;

(4) Whether the trial court erred in refusing to give an affirmative charge on the issue of fraud;

(5) Whether the trial court erred in refusing to allow the proponent to reply to the contestant’s opening statement;

(6) Whether the trial court erred in refusing to give proponent’s requested charges numbered 27, 14, 4 and the proponent’s general affirmative charge on the issue of due execution;

(7) Whether the trial court erred in refusing to allow the Reverend Lee Franklin to give an opinion on the testator’s mental condition; and

(8) Whether the trial court erred in refusing to allow the proponent’s counsel to infer from the evidence, during closing argument, that Georgia Bailey had a deal with the contestant whereby she would receive more money than the amount bequeathed to her in the will.

We find no prejudicial error, and affirm the judgment entered on the jury verdict.

I

Proponent first contends that the probate court never transferred the will contest to the circuit court as required by Code 1975, § 43-1-78, and that the circuit court, therefore,.never had subject matter jurisdiction over the case. Code 1975, § 43-1-78, requires:

Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within 42 days after the entry of such judgment. After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court. (Code 1923, § 10636; Code 1940, T. 61, § 63; Acts 1947, No. 712, p. 552.)

Proponent specifically contends that the appropriate order of transfer was never entered. The only evidence of the transfer is contained in the supplemental record filed in this appeal, which contains a copy of the docket sheet of Proceedings and Orders in the Estate of Sam C. Cook, Jr., which indicates that on May 16,1979, the case was transferred to the Circuit Court of Elmore County. The issue is essentially whether the docket sheet notation is a sufficient order pursuant to § 43-1-78. To answer the question thus posed, we must examine our procedural rules. Rule 81(a)(5), ARCP, provides that the Rules of Civil Procedure are applicable to the probate court in will contests to the extent that those proceedings are not controlled by statute. Rule 58(c), ARCP, states that “notation of a judgment or order ... in the civil docket ... constitutes the entry of the judgment or order”; therefore, under Rule 58(c) the notation on the probate docket was a sufficient order of transfer to the circuit court as required by § 43-1-78. To hold otherwise would place form over substance at the expense of justice.

Proponent further contends that the papers and documents were never certified to the clerk of the circuit court as required by § 43-1-78. The supplemental record clearly shows that the circuit clerk acknowledged receipt of the papers. The record also contains the circuit court docket sheet which indicates that on May 21, 1979, the file was transferred to the circuit court from the probate court. There is sufficient evidence apparent in the record to show compliance with § 43-1-78. While a more formal order and certification is desirable, the purpose of the statute is met. We can tell when jurisdiction attached in circuit court of the will contest.

II

Proponent’s second contention is that the trial court erred in refusing to instruct the jury that before a presumption of undue influence arises, they must find that the beneficiary is a favored beneficiary. Pruitt v. Pruitt, 343 So.2d 495 (Ala. 1976), states:

In other words, evidence must establish:

(1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Wilson v. Pay-ton [251 Ala. 411, 37 So.2d 499 (1948)], supra; Alexander v. Alexander, 208 Ala. 291, 94 So. 53 (1922).

The term “favored beneficiary” was defined by that case as:

One who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed. [Cook v. Morton, 241 Ala. 188,1 So.2d 890 (1941).]

343 So.2d at 499.

In Arrington v. Working Woman’s Home, 368 So.2d 851 (Ala.1979), this Court stated the elements necessary to raise a presumption of undue influence in a will contest as: (1) a confidential relationship, (2) dominance, and (3) undue activity in procuring execution. We have examined the court’s oral charge to the jury and we find no prejudicial error. Although the trial court did not charge the jury that they must find that the proponent was a “favored beneficiary,” that is, that he was favored over others having an equal claim to the estate of the testator, we find no error to reverse. Rule 45, ARAP. Here, the court’s charge followed substantially Alabama’s Pattern Jury Instructions, § 38.10, and there can be little doubt that proponent, a brother of the testator, was “favored” over the contestant, son of the testator.

Ill

The proponent’s third contention is that it was error for the trial court to permit a psychiatric social worker, to testify concerning his opinion as to whether someone of the testator’s mental condition could be easily led.

It is error for a court to allow an expert witness to testify outside his area of expertise, Central Aviation Company v. Perkinson, 269 Ala. .197, 112 So.2d 326 (1959), but, as stated in Alabama Power Company v. Henderson, 342 So.2d 323 (Ala. 1976), the competency of a witness to testify as an expert is discretionary with the trial court and its decision will not be disturbed unless it is plainly erroneous. Here, we cannot say that it was plainly erroneous for the trial court to allow the psychiatric social worker to testify concerning whether someone of the mental state of the testator could be easily led. It was shown that the expert had done clinical evaluations of persons believed to have mental disorders. It was shown that he had experience and education in these areas. The trial judge did not err in allowing the witness to testify concerning the characteristics of a person with a certain mental impairment.

IV

Proponent’s fourth contention is that it was error for the trial court to refuse to charge the jury that it could not find for the contestant on the issue of fraud. The contestant had alleged that the proponent had procured the execution of the will by fraud, but had not offered any proof to support the allegation.

The issue of fraud was never argued by the contestant, and there was no evidence presented concerning fraud. An instruction that fraud was not an issue in the case could have confused the jury. Confusion could have resulted in the instant case because of the great similarity between undue influence and fraud. While the two are not exactly synonymous, fraud is a form of undue influence and undue influence is generally considered to be a species of fraud. Holmes v. Riley, 240 Ala. 96, 196 So. 888, 890 (1940); Shirley v. Ezell, 180 Ala. 352, 60 So. 905, 907 (1913). Requested charges which would tend to mislead or confuse the jury may properly be refused by the trial court. Louisville & Nashville R. R. Co. v. State, 276 Ala. 99, 159 So.2d 458 (1963); Shipp v. Ferguson, 202 Ala. 9, 79 So. 307 (1918); Rolston v. Langdon, 26 Ala. 660 (1855).

Scott v. Louisville & Nashville R. R. Co., 217 Ala. 255, 115 So. 171 (1928), is distinguishable. There, the plaintiff alleged negligence and wantonness and the defendant pleaded the defense of contributory negligence. Before the case was submitted to the jury, the plaintiff withdrew his negligence claim and requested an instruction that contributory negligence was not a defense to the remaining claim. This Court held that where there was evidence to support the contributory negligence defense, but the defense had been eliminated by amendment, it was error to refuse to charge that contributory negligence was no longer a defense. In Scott, the jury could have been confused if the charge was not given. Here, the jury could have been confused, as previously stated, if the charge was given.

V

Proponent’s fifth contention is that it was error for the trial court to refuse to allow him to reply to the contestant’s opening statement. Appellant relies upon Smith v. Bryant, 263 Ala. 331, 82 So.2d 411 (1955), which, he contends, requires that the proponent be given an opportunity to make an opening statement, followed by the contestant’s opening statement and then the proponent has the right to have a final opening statement.

Proponent misreads Smith. The argument discussed in Smith, and the one to which the proponent has the right to respond, is the closing argument. The language used in Smith does speak of the proponent having the right to make the opening argument, but that language refers to opening and closing the argument after the presentation of evidence, and the court’s instructions. It was not error for the trial court to have denied the proponent his request to rebut the contestant’s opening statement.

VI

Proponent next contends that it was error for the trial judge to refuse to give his written requested charges numbered 27,14, 4 and the requested general affirmative charge as to due execution (number 34).

The requested charges are as follows:

PROPONENT’S WRITTEN REQUESTED CHARGE NO. 27

The court charges the jury that it is not necessary that the attestation of the will by the witnesses be at the personal request of the testator; it is sufficient if done in the testator’s presence with his knowledge and consent, expressed or implied.

PROPONENT’S WRITTEN REQUESTED CHARGE NO. 14

The fact that a will executed with due solemnity by a competent person, containing clauses and provisions in favor of the person alleged to have exercised undue influence, if suffered to remain unre-voked for any considerable time after the alleged causes have ceased to operate, or before they commenced to operate, is evidence that it was freely executed, and that it gave expression to the settled will of the testator respecting his property, and his affections towards the donee.

PROPONENT’S WRITTEN REQUESTED CHARGE NO. 4

Members of the jury, I charge you that there is no burden on the proponent to prove the mental condition of the deceased, by the witnesses to the Will, and the fact that a person was a witness to the Will, does not entitle his or her evidence as to mental capacity to any greater weight or importance or significance than it would otherwise be entitled to receive.

PROPONENT’S WRITTEN REQUESTED CHARGE NO. 34

The court charges the jury that if you are reasonably satisfied of the truth of the evidence concerning the due and proper execution of the will, you cannot find for the contestant on that issue.

The trial judge charged the jury:

Another requirement, ladies and gentlemen, is that when at the time a person makes or signs their will — let me back up just a second. On execution of a will it is not necessary that the person making the will; that is, the testator, tell the witnesses that it is a will or tell ’em what is in the will.

Thus, proponent’s written requested charge number 27 was covered by the judge’s oral charge to the jury.

Assuming proponent’s written requested charge number 14 was a correct statement of law because it follows substantially an instruction approved in Knox v. Knox, 95 Ala. 495, 11 So. 125 (1892), we find no reversible error. It is not error for the trial judge to give a charge which states a correct proposition of law, although it is argumentative, but it is not error to refuse such a charge. Hale v. Cox, 222 Ala. 136, 131 So. 233 (1930).

The trial judge also charged the jury:

Now, I say again, the law presumes that the testator was of sound mind and had testamentary capacity at the time of the execution of this will — I believe on September the 1st, 1976. The date is undisputed. So the burden of proof, therefore, is upon the contestant; that is, Sam C. Cook, III, to reasonably satisfy you by the evidence that at the time of the execution of this will the testator did not have the mental capacity to make a valid will.

This oral instruction by the court, although not exactly like the charge requested, when considered with the entire charge of the court and in light of the fact that testator’s competency was an issue, was sufficient, especially since the requested instruction made reference to a “competent person” and contained more argument than legal principles.

Proponent also requested the general affirmative charge on due execution. In Smith v. Moore, 278 Ala. 173, 176 So.2d 868 (1965), this Court considered the refusal of a trial court to give a general affirmative charge. The Court opined:

The refusal to give these charges was not error. As we have so often stated, the scintilla rule prevails in this state and a mere spark of evidence or inference to be drawn from any evidence in support of the theory of the case against whom the affirmative charge is sought is sufficient to compel the denial of the affirmative charge.

In the present case, there was evidence which, if believed, might prove the contestant’s allegation of undue influence. Proof of undue influence, in turn, would negate the testator’s intent which would negate a valid execution. Hale v. Cox, 222 Ala. 136, 131 So. 233 (1930).

We cannot say that the trial court erred in refusing to give any of the above written requested charges.

VII

Proponent next contends that it was error for the trial court to refuse to permit Reverend Lee Franklin to state his opinion as to whether the testator was a strong-willed or weak-willed person. Proponent argues that Houston v. Grigsby, 217 Ala. 506, 116 So. 686 (1928), is controlling. In Houston, it was held that there was no error in permitting witnesses who knew the deceased well to testify that she was a woman of strong or firm will. The rationale expressed was that this was but a summary of the facts and had a bearing on the question of undue influence.

Before a witness may testify as to the condition of a person he must first testify as to his familiarity with that condition. Whether the witness possesses the requisite qualifications is a preliminary question within the discretion of the court. Lackey v. Lackey, 262 Ala. 45, 76 So.2d 761 (1954). Here, we cannot say from our review of the record that the trial court abused its discretion.

VIII

Proponent’s final contention is that it was error for the trial court to refuse to permit his counsel to infer from the evidence in his summation to the jury, that Georgia Bailey, one of the witnesses, and a beneficiary under the contested will, had a deal with the contestant. The specific argument to which the contestant objected is as follows:

MR. GEORGE P. HOWARD: It’s true. Georgia Bailey didn’t want that to be Sam’s will. She didn’t want that five thousand dollars. Why didn’t she want the five thousand dollars? Because she had a deal. She had a deal whereby she was going to get more than five thousand dollars. But we don’t have any answer other—

In Walker v. Cardwell, 348 So.2d 1049 (Ala.1977), this Court stated:

In argument to the jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). Much must be left to the judgment of the trial court, with presumptions in its favor. To justify reversal, substantial prejudice must have resulted. Id. McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958).

Proponent admits that there was no evidence of a “deal,” but he contends that the argument was permissible as an “inference from the evidence.” We find that the trial judge properly handled this issue.

For the foregoing reasons, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    CARROLL KENWORTH TRUCK SALES, INC., and James McCann v. Alonza LEACH, Alphonso Leach, Calvin Leach and Ada Leach. Alonza LEACH, Alphonso Leach, Calvin Leach and Ada Leach v. CARROLL KENWORTH TRUCK SALES, INC., and James McCann.
    79-624, 79-626.
    Supreme Court of Alabama.
    April 3, 1981.

      Bruce J. Downey, III, Capell, Howard, Knabe & Cobbs, Montgomery, for appellants.
    Tyrone C. Means of Gray, Seay & Lang-ford, Montgomery, for appellees.
   JONES, Justice.

Appellees-Plaintiffs filed suit in the Circuit Court of Montgomery County, Alabama, on June 20, 1979, seeking damages for alleged willful misrepresentation, reckless misrepresentation, concealment and breach of contract concerning the condition of a crankshaft and extent of a warranty on a truck sold them by Appellants. The case was tried to a jury which, on February 16, 1980, returned an award of $1,710 compensatory damages and $10,000 punitive damages for the Plaintiffs. From a judgment entered thereon, following a denial of a motion for a new trial, Defendants appeal, We affirm.

The Appellants herein are Carroll Ken-worth Truck Sales, Inc., a Kenworth truck dealer in Montgomery, Alabama, and James McCann, a salesman employed by Carroll Kenworth Truck Sales, Inc. The Appellees are Alonza Leach, Alphonso Leach, Calvin Leach and Ada Leach, of Anniston Alabama. Alphonso and Alonza are the sons of Calvin and Ada Leach, and are owners/operators of large transport trucks which they lease to Malone Freight Lines of Birmingham for hauling freight.

For several months during May through July of 1978, one or more of the Leaches negotiated with James McCann for the purchase of a 1974 Kenworth truck that Carroll Kenworth had taken as a trade-in. Difficulties in obtaining financing necessitated that the loan application for the vehicle be taken in the names of Ada and Calvin Leach.

All negotiations were predicated on an overhaul of the engine as well as some other minor repairs by Carroll Kenworth. The crankshaft, in particular, was pulled, inspected by a mechanic and sent to Schif-fer Engine and Machine Company of Selma, Alabama, to be polished and magnafluxed. (Magnaflux is a testing device wherein a metal part is given an electrostatic charge and examined in a manner which reveals cracks not visible to the naked eye.)

James McCann advised the Leaches that the truck would be covered by the usual Carroll Kenworth 30-day warranty, which provided that any repairs necessary during that time would be made by Carroll Ken-worth at its shop in Montgomery on a 50/50 basis. Carroll Kenworth would bear 50 per cent of any such repair costs and the Leaches 50 per cent. Also, despite McCann’s contentions that he never mentioned what specific parts would be encompassed under an additional Cummins Corporation Warranty, the Leaches testified that he specifically stated that the warranty covered any crankshaft repairs.

Within the first month after delivery, the crankshaft broke when the truck was some 20 miles out of Port Chester, New York. Thereafter, the Leaches learned for the first time that the crankshaft was not covered by the Cummins warranty. The record evidences that the Leaches expended $260 for bus fare from New York, $50 for telephone charges, and $1,400 for repairs to the vehicle.

I. Substantial Weight of the Evidence

While Appellants raise numerous issues for consideration on this appeal, the central issue presented is premised upon allegations that the jury’s findings of actionable misrepresentations against the Appellants, as well as its award of punitive damages, were unsupported by the substantial weight of the evidence. We cannot agree.

We begin our analysis by noting that jury verdicts carry with them a presumption of correctness, such presumption being strengthened when a motion for a new trial is denied by the trial court. Walker v. Cardwell, 348 So.2d 1049 (Ala. 1977); Neil Huffman Volkswagen Corp. v. Ridolphi, 378 So.2d 700 (Ala.1979); Hodges & Company v. Albrecht, 288 Ala. 281, 285-86, 259 So. 829, 832 (1972).

Appellants have labored long and arduously in an effort to bolster their contentions that the strength of the evidence before the, jury was not “of a magnitude to facilitate” its verdict. However, we cannot say that the preponderance of the evidence against the verdict is so decided as to clearly convince us that it is wrong and unjust. See 2A Ala. Digest, Appeal and Error, 303 (1955); Johnson v. King, 260 Ala. 497, 71 So.2d 60 (1954). Consequently, we refuse to set aside the trial judge’s denial of Appellant’s motion for a new trial based upon the insufficiency of the evidence of record to support the jury verdict.

As to the issue of punitive damages, we are unpersuaded by Appellant’s contentions of excessiveness in amount. Punitive damages need not correlate to actual damages. Neil Huffman Volkswagen Corp., supra; Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975); Foster v. Floyd, 276 Ala. 428, 163 So.2d 213 (1964).

The only question regarding ex-cessiveness is whether the judicial conscience is quickened by the verdict. Foster, supra. If the strongest tendencies of the Plaintiff evidence were believed by the jury, such evidence clearly would support a finding of intentional reprehensible conduct and an award of $10,000 is well within the bounds of reason as punishment therefor. Ray Hughes Chevrolet, supra.

II. Remarks of Appellees’ Counsel in Closing Argument

Lastly, Appellants point to closing remarks before the jury by counsel for the Appellees, which they deem grossly unfair and prejudicial. We find no merit in this contention. During his closing remarks, counsel for the Leaches said: “This isn’t the first time folks have asked for and gotten large punitive damages. Right here in Montgomery County it has happened very recently.”

Counsel for Appellants timely objected; the objection was sustained; and the court instructed the jury to disregard the remarks. Assuming, without deciding, impropriety on the part of counsel in making the comments objected, to, we find no reversible error because Appellants received what they asked for. No further request was made and no adverse ruling was invoked. Calloway v. Lemley, 382 So.2d 540 (Ala. 1980); Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619 (1955). Therefore, Appellants cannot now be heard to complain of trial court impropriety.

Because the cross appeal is expressly predicated upon the condition “that . .. this court reverse and remand this case based upon the appeal,” the cross appeal is rendered moot by this Court’s affirmance of the judgment upon which the appeal is based.

AFFIRMED AS TO THE APPEAL AND THE CROSS APPEAL.

ALMON, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.


author: PER CURIAM.

text:
    UNITED SUPPLY COMPANY v. HINTON CONSTRUCTION AND DEVELOPMENT, INC., etc.
    No. 79-640.
    Supreme Court of Alabama.
    April 3, 1981.
    Carl E. Chamblee, Birmingham, for appellant.
    William A. Jackson, Birmingham, for ap-pellees.
   PER CURIAM.

This is an appeal from Jefferson County Circuit Court, Birmingham Division, holding that suits establishing and enforcing materialmen’s liens on parcels of real property located in different counties, and in different divisions within one county, must be brought separately in the county and division where the land is situated, although the causes of action arise out of contracts of indebtedness with the same party.

The facts are undisputed. United Supply Company furnished building supplies to Hinton Construction and Development, Inc., for use on separate parcels of land owned by Hinton, located in both Shelby and Jefferson County. In seeking to establish liens on the property, United Supply complied with Code 1975, § 35-11-213, by filing verified statements of liens in the probate judge’s office of the county where each parcel of land lay; namely, in the offices of the Judge of Probate of Shelby County, of Jefferson County, Bessemer Division, and of Jefferson County, Birmingham Division.

United Supply filed its complaint in the Circuit Court of Jefferson County, Birmingham Division, seeking establishment of the liens and a sale of all the property described in the statements in satisfaction of the balance due on the building materials. The property sought to be sold consisted of eight lots located in Shelby County, three lots in Jefferson County situated within the Bessemer Division, and three lots in Jefferson County situated within the Birmingham Division.

The Jefferson County Circuit Court, Birmingham Division, dismissed that part of United Supply’s suit seeking to establish liens on real property located within Shelby County and within Jefferson County, Bessemer Division, reasoning that pursuant to Code 1975, § 35-11-221, those causes of action must be filed in the county and division where the land lies. Accordingly, the court held that the Birmingham Division of the Jefferson County Circuit Court was without subject matter jurisdiction to entertain suits involving land not located within its territorial borders. In the final judgment, it was ordered, inter alia, that liens be established and enforced in favor of United Supply only on those three lots located within the Birmingham Division of Jefferson County. We affirm.

The issues on appeal are (1) whether suits to establish and enforce ma-terialmen’s liens on parcels of real property situated in separate counties may be joined in one civil action; (2) whether suits to establish and enforce liens on parcels of real property located within the Bessemer Division and within the Birmingham Division may be joined in one civil action in the Jefferson County Circuit Court. We answer both questions negatively.

United Supply argues that merely venue questions are involved, which may be easily resolved under Rule 82(c), ARCP. This rule provides that suits may be brought in any county where any one of the causes of action may properly be brought. United Supply joined in one civil action all of the liens it sought to establish. Since the court determined that it had jurisdiction to establish a lien on that property located within the Birmingham Division, United Supply contends that Rule 82(c), ARCP, dictates that the court should also adjudicate those claims to property located in Shelby County and in Jefferson County, Bessemer Division.

Hinton argues that where the causes of action are brought is a jurisdictional issue, squarely answered in Code 1975, § 35-11-220, stating that an action for enforcing liens must be brought in the court having jurisdiction in the county where the property is situated. Hinton concludes, therefore, that United Supply’s causes of action on the Shelby County and Bessemer Division properties were properly dismissed because the Birmingham Division court did not have subject matter jurisdiction over that property. Moreover, it points out that Rule 82(c), ARCP, expressly provides that the rules shall not extend the jurisdiction of the courts.

Prior to our analysis of these arguments, we note that United Supply has three liens which it seeks to join in one enforcement proceeding, rather than one lien to be enforced on several parcels of property located in different counties. This conclusion is reached by observing that the lien instrument filed in a particular county listed only property in that county. It is also significant that the amount of the debt ascribed to each lien instrument is different. The relationship of the lien instruments to each other exists only in establishing an aggregate sum due. Drinkard v. Hall, 254 Ala. 105,47 So.2d 213 (1950). It is important for us to determine that there are three liens involved and not just one, because a single lien held upon separate properties which are neither contiguous nor adjacent, and which are located in separate counties, cannot be perfected or enforced. Drinkard.

I.

Having established that three separate liens are involved, we must now determine the central issue of whether they were properly joined in one action in the Birmingham Division of Jefferson County Circuit Court, although all the property is not located within that county or division. In resolving whether joinder was proper there, we must initially determine whether jurisdiction was proper in Jefferson County. Code 1975, § 35-11-220 reads:

When the amount involved exceeds $50.00, actions for enforcement of [mechanics’ and materialmen’s] liens ... may be brought in the circuit court having jurisdiction in the county in which the property is situated. In all other cases actions to enforce such liens shall be brought before the district court in the county in which the property is situated.

From this language we conclude that “the county in which the property is situated” is a jurisdictional mandate for properly bringing the action in either circuit or district court.

Tracking the requisites of the statute, we hold that jurisdiction is proper in Jefferson County Circuit Court as to that land located within that county, suspending for the moment a resolution of the issue of the Birmingham and Bessemer division courts. The amount claimed exceeds $50.00;. therefore, it was entirely within United Supply’s prerogative to elect to bring its suit in circuit rather than district court. Whichever court is elected, the statute specifies that it must be located in the county where the land is situated. Therefore, Jefferson County Circuit Court had the jurisdiction to adjudicate those causes of action on lots located within that county.

We must next determiné whether the cause of action on the Shelby County property may be joined with the Jefferson County action, by employing Rule 82(c), ARCP. We hold that joinder is improper because of the jurisdictional mandate of § 35-11-220, that the court adjudicating the action must be located in the same county as the land. Obviously, when the land is located within Shelby County, filing an action in Jefferson County Circuit Court does not meet that requirement. The jurisdictional directive is distinguishable from the general venue rule of Rule 82(c), because without subject matter jurisdiction the court is powerless to render a binding judgment. Venue, on the other hand, is designed for the convenience of the parties, but does not give the court power to resolve the dispute.

In Drinkard v. Hall, 254 Ala. 105, 47 So.2d 213 (1950), this court disallowed join-der in one county circuit court of foreclosure of two liens on property located in different counties, stating:

We are cited to no case nor has our search revealed one in this or other jurisdictions, where an attempt has been made to enforce two separate mechanic’s liens on two separate properties located in two separate counties, although the liens arose out of a single contract between the parties. We are unable to agree that it can be done.

254 Ala. at 109, 47 So.2d 213.

II.

United Supply also seeks to join in one action in the Circuit Court of Jefferson County, Birmingham Division, claims on separate property located within the Bessemer Division and within the Birmingham Division. Because neither the jurisdiction statute, § 35-11-220, nor the venue rule, Rule 82, ARCP, deals squarely with this type of joinder, our attention must be drawn to the local act creating the Bessemer Division Court.

The Bessemer Division Court was originally created in 1893, Local Act No. 281, at 669. In 1901, Local Act No. 1055, at 2443, abolished that division court until 1919, when Local Act No. 213, at 62, re-created it. The 1919 re-creating Act was amended twice, but in all material respects the Act has remained intact “[t]o better provide for holding the Circuit Court of the Tenth Judicial Circuit at Bessemer .... ”

Section 2, Local Act No. 213, is pertinent to the question of whether actions to enforce liens arising within the Bessemer territory must be heard in that division court. Section 2, as amended, provides:

The said Circuit Court of the Tenth Judicial Circuit, holding at Bessemer, as in this Act provided, shall have, exercise and possess all of the jurisdiction and the powers which are now or which may hereafter be conferred by law on the several Circuit Courts of this State, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the territory of the County of Jefferson, which is described as follows, to-wit: [next ensues a metes and bounds description of what is commonly referred to as the Bessemer Cut-Off]

We opine that the legislature, in enacting Section 2, Local Act No. 213, in effect created two circuit courts within one county. By the Act, the Circuit Court holding in Bessemer was given the same power exercised by the Tenth Judicial Circuit, but it could exercise such power only for actions arising in its territorial boundary. In the instant case, United Supply filed a lien in the probate court of Bessemer, on land located squarely in the Bessemer Division.

Having determined that the legislature intended to create two circuit courts in Jefferson County, we must reach the inescapable conclusion that the suit to enforce a lien must be filed in the division in which the land lay. Drinkard v. Hall, 254 Ala. 105, 47 So.2d 213 (1950). This is consistent with our conclusion that a suit to foreclose a lien in Shelby County could not be filed in the Jefferson County Circuit court.

Because this is a jurisdiction, and not a venue question, Rule 82(c), ARCP, is inap-posite. The Jefferson County Circuit Court, Birmingham Division, did not err in dismissing these causes of action on property located within Shelby County and in the Bessemer Cut-Off. Accordingly, this cause is due to be and is hereby affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Allen E. SINGLETON and First National Bank of Baldwin County v. STATE of Alabama et al.
    No. 79-646.
    Supreme Court of Alabama.
    April 3, 1981.

      William T. Faile of Morris & Faile, Selma, for appellants.
    Ray Acton, Asst. Atty. Gen., and Robert W. Ennis, IV, Asst. City Atty., Tuscaloosa and Richard H. Poellnitz, Greensboro, and Robert E. Morrow, Dist. Atty., 4th Jud. Cir., Selma, for appellee.
   BEATTY, Justice.

Appeal from a lower court judgment condemning and forfeiting one 1974 GMC tractor-truck. We affirm in part, reverse in part, and remand.

I.

The condemnation action initiated by the State in the instant case is based upon the same set of facts we addressed in Air Shipping International v. State, Ala., 392 So.2d 828 (1981). In that case we affirmed the condemnation and forfeiture of one DC6-A airplane used in the transportation of 9,310 pounds of marijuana. The airplane and marijuana were initially seized on June 12, 1979 at the Greensboro Airport in Hale County. In addition, law enforcement officers also confiscated a 1974 GMC tractor-truck, the subject matter of this appeal. The seizure of this truck was prompted by the fact that it was observed backing up to the cargo door of the airplane. It is undisputed that at the time of its confiscation the truck was both owned and operated by appellant Allen E. Singleton.

On June 21, 1979, the State initiated condemnation proceedings against the GMC tractor-truck alleging that the truck, by pulling a trailer, was used or intended to be used for the transportation of a controlled substance. See Code 1975, § 20-2-93(a)(4). Singleton promptly filed an answer to the complaint admitting his ownership of the vehicle but denying that it was ever used in any criminal activity. He thereafter filed a motion to dismiss alleging lack of jurisdiction, insufficiency of process, misjoinder of claims, failure to join indispensable parties and improper venue. The trial court denied this motion and set the cause for trial. When neither Singleton nor his representatives appeared at trial, a default judgment was entered in favor of the State.

Singleton subsequently filed a motion to set aside the default judgment alleging, inter alia, that he had a meritorious defense to the complaint in that appellant First National Bank of Baldwin County held a bona fide security interest in the vehicle. The record indicates that in May of 1979 Singleton borrowed approximately $16,-000.00 from the Bank for the purchase of a 1975 White 2TGT tractor-truck. Singleton had purchased the GMC truck approximately two years earlier and wanted to purchase the White truck so that his wife could enter the trucking business. As security for the 1979 loan, the Bank perfected a UCC-1 security interest in both trucks. On the basis of these security interests, the Bank also filed a motion to set aside the forfeiture of the GMC truck alleging that it held an interest in the subject vehicle but failed to receive notice of the prior condemnation hearing.

On January 24, 1980, as a result of a stipulation entered into between the parties, the trial court granted the appellants’ motions to set aside the default judgment. That stipulation provided, in part, that the appellees believed that justice could best be served by giving the appellants an opportunity to present any credible evidence which might substantiate a superior claim.

At trial Singleton denied any knowledge of transporting any marijuana or other controlled substance, and stated that he was hired to haul furniture from Tuscaloosa to Birmingham. Singleton was, in fact, tried in federal district court on criminal charges and found not guilty of any culpable conduct. Likewise, Norman Stone, III, an employee for appellant Bank, testified that the Bank had absolutely no knowledge that the truck was going to be used for any illegal purposes. The trial court heard this evidence ore ten us and, on February 8, 1980, entered its order condemning the truck and forfeiting it to the State. The appellants thereafter perfected this appeal.

II.

Appellants cite Gibbs v. State, 259 Ala. 561, 67 So.2d 836 (1953) and Winstead v. State, Ala.Civ.App., 375 So.2d 1207 (1979) as authority for the proposition that the State must affirmatively prove that a conveyance was “loaded for movement” before it can condemn the conveyance for being used to facilitate the transportation of a controlled substance; however, a close analysis of the applicable forfeiture statute indicates that a lesser burden of proof may apply.

Code 1975, § 20-2-93(a)(4) provides, in pertinent part, that “[a]ll conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport or in any manner to facilitate the transportation” (emphasis added) of controlled substances may be forfeited. In Gibbs this Court construed analogous forfeiture provisions governing the condemnation and forfeiture of vehicles “used” in the importation and/or transportation of prohibited liquors and beverages. See Code of 1940, Tit. 29, § 247 (now Code 1975, § 28-4-285). Those provisions specified the burden of proof imposed upon the State and provided that “[i]n order to condemn and confiscate any of the above-mentioned conveyances or vehicles or animals, it shall not be necessary for the state to show any actual movement of said conveyances, vehicles or animals while loaded with any of said prohibited liquors or beverages ...” (emphasis added). In Gibbs the Court noted that these procedural provisions were added by the Alabama legislature in response to prior case authority which held that a vehicle did not become subject to forfeiture until it was loaded with contraband and actually moved. See, e. g., Carey v. State, 206 Ala. 351, 89 So. 609 (1921). As amended, these forfeiture provisions expressly removed that requirement; however, in strictly construing the statute the Court concluded that the State still carried the burden of proving that the prohibited beverage had been “loaded for transportation” or “loaded for movement.” Gibbs, supra, at 259 Ala. 564, 67 So.2d 83. In other words, a conveyance was not “used” for the transportation of prohibited beverages until loaded.

In Winstead v. State, supra, the Court of Civil Appeals relied on Gibbs in applying the forfeiture provisions outlined under Alabama’s Controlled Substances Act. In Winstead the appellant argued that the State had failed to prove that the controlled substance found in his vehicle was “loaded for movement.” The court relied on Gibbs for its holding that the State is not required to prove actual movement of a vehicle for the provisions of § 20-2-93(a)(4) to be operative. In applying the language of § 20-2-93(aX4) the Court concluded that the State, by discovering a large quantity of a controlled substance in the appellant’s vehicle, minimally met its burden of proving that the vehicle was intended to transport a controlled substance. Contrary to the argument of the appellant, the court did not hold that the State, in all cases, must prove that a controlled substance was loaded for transportation. The decision is expressly limited to its facts.

Section 20-2-93(a)(4) addresses the forfeiture of two specific types of conveyances, viz., those conveyances “used” in the transportation of a controlled substance and those conveyances “intended for use.” Were we dealing with a conveyance purportedly “used” to transport controlled substances, we would be inclined to follow the precedent established in Gibbs; however, the question currently confronting this Court is: Was Singleton’s truck “intended for use” in transporting the 9,310 pounds of marijuana discovered aboard the DC6-A airplane? Several witnesses testified that the truck was observed backed up to the cargo door of the airplane. Likewise, approximately sixty feet of eighteen inch wide rolling conveyor was discovered in the trailer attached to the vehicle. The trial court, therefore, concluded that the vehicle was indeed intended to facilitate the transportation of the marijuana. Under the possible interpretations of this evidence, we are not convinced that this decision was palpably erroneous or manifestly unjust.

III.

When the State met its burden of proving that the vehicle was used in violation of Code 1975, § 20-2-93, it established a prima facie case for the seizure, condemnation and forfeiture of the vehicle. U-Haul Company of Alabama v. State, 294 Ala. 330,316 So.2d 685 (1975). As we noted in Air Shipping International, supra, when this prima facie case is established, it becomes incumbent upon any claimants to show that they had no knowledge or notice of the intended illegal use and could not have obtained knowledge by reasonable diligence. See Flint Motor Car Co. v. State, 204 Ala. 437, 85 So. 741 (1920). Both appellants contend they have met this burden. We disagree.

As we noted previously, Singleton repeatedly testified that he did not know that his truck was to be used to transport marijuana. Singleton’s acquittal in federal district court supports this testimony and represents credible evidence bearing upon Singleton’s knowledge or consent to the intended illegal activity. Cf., One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (United States Supreme Court noted that prior acquittal may resolve the issue of whether a requisite criminal intent accompanied the illegal activity). However, under the facts of this case, we are not convinced that Singleton could not have obtained knowledge by reasonable diligence.

In early June 1979, Singleton was hired by one Bobby Raulston to haul a load of furniture from Tuscaloosa to Birmingham. Singleton testified that he had actually met Raulston on one earlier occasion. When Singleton encountered difficulty in finding an available rental furniture trailer for the weekend in question, he was informed by Raulston that an ordinary trailer would suffice. He was also told that he would not need to rent any furniture pads. Upon arriving in Tuscaloosa on Saturday, June 10th, Singleton secured a room at a hotel across the street from the hotel where Raulston was staying. There, he was contacted by Raulston and informed that the “place” had been changed and that they were not going to move furniture that day. At 10:00 P.M. the next evening, Raulston contacted Singleton and directed him to drive to the Greensboro Airport in Hale County. Raulston told Singleton that they were going there to pick up several items stored in a tin building, viz., tires, television sets and microwave ovens. Singleton arrived at the airport at approximately 1:00 A.M. and waited in his truck until the DC6-A airplane arrived approximately two hours later. Singleton testified that until law enforcement officers arrived he was never suspicious and never thought to ask any questions.

We believe that under the circumstances outlined above a reasonably prudent person would have been placed on notice to make reasonable inquiry. Edwards v. State, 213 Ala. 122, 104 So. 255 (1925). Why was the “place” changed? Why was there a delay in moving the furniture? Why was he no longer going to move furniture? Why wait at the airfield for approximately two hours when the articles he was to haul were allegedly stored in a tin building? Why the secrecy? The trial court concluded that Singleton failed to exercise reasonable diligence, and under the facts of this case we do not believe this decision was clearly wrong. We, therefore, affirm the forfeiture of the vehicle as to Singleton’s interest.

As far as the Bank’s interest is concerned, we are constrained to reach a different conclusion. As the holder of a bona fide security interest, the Bank, like any other intervenor, carried the burden of proving that it did not have knowledge or notice of the intended illegal use and that it could not have obtained knowledge by reasonable diligence. Commercial National Bank of Anniston v. State ex rel. Dorman, 251 Ala. 409, 37 So.2d 644 (1948). In Hart-zog-Ganey Motor Co. v. State, 222 Ala. 50, 130 So. 771 (1930), this Court thoroughly discussed the necessity of lack of knowledge and reasoned as follows:

Under the rule now well recognized in this state, if claimants had no knowledge or notice that the car was to be used for any unlawful purpose, or no knowledge or notice of any fact calculated to excite suspicion, so as to put a reasonably prudent person on inquiry as to such intended use, then inquiry on their part was not demanded. “This rule was adopted as reasonable and just and as expressive of the legislative intent that innocent parties free from fault should not suffer loss through the wrong of another.” Edwards v. State, 213 Ala. 122, 104 So. 255, 256; General Motors Acceptance Corp. v. State, 217 Ala. 571, 117 So. 181; Auburn Sales Co. v. State, 219 Ala. 360, 122 So. 463; Wright Motor Co. v. State, 214 Ala. 120,106 So. 868, 869. [Emphasis added.]

The requisite notice necessary to excite suspicion and stimulate inquiry is necessarily determined by the facts of each particular case. It may be notice imputed by law, such as the reputation and general character of the violator in the community in which he works and lives. Biehl v. State, 234 Ala. 304, 174 So. 494 (1937); Riley-Ai-kens Chevrolet Co. v. State, 224 Ala. 42,138 So. 412 (1931); Auburn Sales Co. v. State, 223 Ala. 184, 134 So. 867 (1931); Koger v. State, 215 Ala. 319, 110 So. 573 (1926). It may be actual notice or knowledge of the violator’s disreputable character or conduct. Deerman v. State, 253 Ala. 632,46 So.2d 410 (1950); State ex rel, Randall v. Martin, 253 Ala. 487, 45 So.2d 286 (1950); Parker v. State, 219 Ala. 362, 122 So. 464 (1929). If such notice or knowledge exists, a secured creditor will not be entitled to an allowance of its claim.

The record reveals that prior to securing the $16,000.00 loan in 1979, Singleton had dealt with the Bank as a customer for several years. He was personally known at the Bank and was established in the trucking industry. He had no record of prior criminal activity and apparently held a good reputation in the community. On the basis of this evidence, we hold that the Bank was not chargeable with any facts which might have prompted the need to make additional inquiry. It did not have actual knowledge of Singleton’s involvement, nor did it have knowledge of any fact calculated to excite suspicion. We, therefore, hold that the Bank was entitled to an allowance of its claim.

In reaching this conclusion, we do not hold that the Bank’s interest precludes the forfeiture. Code 1975, § 20-2-93(a)(4)(c) expressly provides:

A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission. [Emphasis added.]

This provision contemplates the forfeiture of encumbered conveyances, subject, of course, to the interests of secured parties. The clear language of the statute evidences a legislative intent to protect bona fide lienholders without destroying the right of the State to condemn a vehicle used in violation of the Controlled Substances Act. Cf., Consolidated Loan Co. v. State, 75 Ga. App. 77, 41 S.E.2d 802 (1947). This construction is in accord with the procedure adopted in numerous Alabama cases wherein vehicles were forfeited and sold, subject to the claims of innocent claimants. Mid-dlebrooks v. State, 248 Ala. 402, 27 So.2d 867 (1946); Hartzog-Ganey Motor Co. v. State, supra; General Motors Acceptance Corp. v. State, 217 Ala. 571, 117 So. 181 (1928); State ex rel. Siebels v. Farley, 206 Ala. 172, 89 So. 510 (1921); see generally, Annot., 14 A.L.R.3d 221, 321 (1967). The Bank is, therefore, entitled to recover from the proceeds to the extent of any underse-cured debt; that is to say the Bank may recover to the extent that the outstanding debt now exceeds the value of any remaining collateral. In this way, the lienholder is secured, and the public is protected by permitting the forfeiture of vehicles used in crime.

Accordingly, the lower court judgment is affirmed insofar as it forfeits Singleton’s interest in the subject vehicle. The judgment is reversed insofar as it forfeits the interest of the secured creditor. The cause is, therefore, remanded with instructions that the subject vehicle be forfeited and sold with the proceeds being subject to the Bank’s interest in the amount of any un-dersecured debt.

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

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

      . This “well recognized rule” was initially adopted by this Court in Edwards v. State, 213 Ala. 122, 104 So. 255 (1925). In Edwards, the Court, by a four to three decision, expressly overruled McCormack Bros. Motor Car Co. v. State, 213 Ala. 6, 102 So. 894 (1925) which held that, in order to exercise reasonable diligence, a mortgagee or conditional vendor was required to make inquiry in the community as to the character of the mortgagor or purchaser to ascertain if the vehicle would be used in an illegal fashion. A mere checking of business references supplied by the mortgagor or purchaser would not suffice. The Court in Edwards believed this rule was impracticable, and would seriously impair the business world engaged in the sale of means of transportation. These pragmatic concerns are equally true today.


author: FAULKNER, Justice.

text:
    Mary BRAGGS v. JIM SKINNER FORD, INC. and Ford Motor Credit Company.
    No. 79-887.
    Supreme Court of Alabama.
    April 3, 1981.

      Lloyd W. Gathings of Emond & Vines, Birmingham, for appellant.

      John Martin Galese of Galese & Chambers, Birmingham, for appellee Jim Skinner Ford, Inc.
    Charles Cleveland of Gordon, Cleveland & Gordon, Birmingham, for appellee Ford Motor Credit Company.
   FAULKNER, Justice.

This is an appeal from an order granting a 12(b)(6) motion and a 12(c) motion. We reverse and remand.

On January 29, 1979, Mary Braggs purchased a used car from Jim Skinner Ford and entered into an installment contract with Skinner Ford for its payment. Skinner Ford assigned the contract to Ford Motor Credit Company. The total amount financed was $4,103.78, payable in 48 monthly installments at an annual percentage rate of 14.28%. Included in the total amount financed was an $81.20 processing fee. The total finance charge was $1,317.82.

On January 29,1980, Braggs filed a complaint against Skinner Ford and FMCC alleging violations of the Truth in Lending Act and the Alabama Mini-Code, Act 2052, Acts of Alabama 1971, Vol. IV, p. 3290. Specifically, she asserted that the $81.20 processing fee was improperly included within the total amount financed, and that it should have been denominated as part of the total finance charge according to Regulation Z of the Truth in Lending Act. 15 U.S.C. §§ 1631 et seq.; 12 C.F.R. §§ 226.4, 226.5, 226.6(a) and 226.8(c). Including the $81.20 processing fee in the total amount of the finance charge, as urged by Braggs, results in the finance charge exceeding the amount authorized by the Alabama Mini-Code.

Skinner Ford filed a preanswer Rule 12(b)(6) motion to dismiss, and FMCC filed a postanswer motion to dismiss it from the Truth in Lending Act claim, or in the alternative for a judgment on the pleadings, contending that the processing fee was a fee exacted by the dealer only, and that as the dealer’s assignee, it was not liable for any alleged violation for nondisclosure of that charge. FMCC and Skinner Ford also asserted that Braggs’s Truth in Lending Act claim was untimely and barred because she filed her complaint on the one year anniversary date of the occurrence of the violation, allegedly exceeding the requirement of 15 U.S.C. § 1640(e), that a Truth in Lending Act violation must be brought within one year from the date of the occurrence of the violation. For purposes of TILA claims, appellees argued that the date of the violation must be included when computing timely filing, and that filing on the one year anniversary date of the occurrence is tardy because the one year requirement cannot be extended by procedural rules.

The Circuit Court of Jefferson County, without an opinion, dismissed Jim Skinner Ford, Inc., and entered judgment on the pleadings in favor of Ford Motor Credit Company. Braggs appeals from the order dismissing Skinner Ford and from the final judgment in favor of FMCC.

I

JIM SKINNER FORD, INC.

Skinner Ford’s preanswer motion to dismiss alleged, inter alia:

1. The complaint fails to state a claim upon which relief can be granted.
2. The complaint shows upon its face that it was not filed in accordance with the applicable statute of limitations.

Skinner Ford argues, in brief, that Braggs failed to state a claim under the Alabama Mini-Code because she did not aver that the $81.20 processing fee was a direct or an indirect charge made as an incident to the extension of credit, inasmuch as Code 1975, § 5-19-1(1) states that the term “finance charge” “shall include all charges payable directly or indirectly by the debtor and imposed directly or indirectly by the creditor as an incident to the extension of credit....” (emphasis ours).

Braggs contends, however, that what the processing fee actually represents is at best a question of fact, making the lower court’s dismissal erroneous because the complaint contains contested factual issues. She urges that if the processing fee is in fact charged as an incident to the extension of credit, then it should have been incorporated within the total amount of the finance charge assessed by Skinner Ford, resulting in its inclusion creating a finance charge exceeding that required by law under the Mini-Code.

Braggs alleged in her complaint that the processing fee charged by Skinner Ford as part of the amount financed violated the disclosure requirements of the Truth in Lending Act and Regulation Z, delineating specific sections. She averred:

Pursuant to such contracts said defendants disclosed and charged plaintiff and the members of the class she represents a “processing” fee as part of the amount financed through such contracts; said defendants violated the disclosure requirements of the Truth-In-Lending Act and Regulation Z (which was promulgated by the Board of Governors of the Federal Reserve System in accordance with the Truth-In-Lending Act [15 USCA, Section 1604]). Specifically, said defendants violated requirements of 15 USCA 1631, et seq. (Truth-In-Lending Act) and Sections 226.4, 226.5, 226.6(a), and 226.8(c) of Regulation Z.

In sum, these sections require that any fees falling within the statutory definition of “finance charge” must be disclosed adequately and must not exceed the annual percentage rate provided by law. She made similar allegations in support of violations of the Alabama Mini-Code:

Processing fees of the type charged by said defendants are required to be included as part of the maximum finance charged said defendants, pursuant to the provisions of the Mini-Code (Ala.Code, Section 5-19-1), could charge plaintiff and the members of the class she represents. Said defendants did not openly include such processing fees as part of the finance charges charged plaintiff and the members of the class she represents, however, the inclusion of such processing fees as part of the finance charges charged plaintiff and the members of the class she represents by said defendants reveals that said defendants charged plaintiff and the members of the class she represents a finance charge in excess of the amount authorized by the Mini-Code (Alabama Code, Section 5-19-3). Said defendants made such excess finance charges in deliberate violation or in reckless disregard of the requirements of the Mini-Code.

She requested damages, costs plus interest, attorney’s fees and a permanent injunction against further violations.

“A motion to dismiss for failure to state a claim under Rule 12(b)(6), ARCP, should seldom be granted and is properly granted only when it appears beyond doubt that the plaintiff can prove no set of facts entitling him to relief.” Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899, 901 (Ala. 1979). Here, it does not appear beyond doubt that Braggs could not prove any set of facts entitling her to relief.

Next, the standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading. Sims v. Lewis, 374 So.2d 298 (Ala.1979); Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978); Wright & Miller, Federal Practice and Procedure, Civil & 1357, at 605 (1969).

Looking at the face of the complaint, it is obvious that the statute of limitations had not expired to bar the action. Because Mary Braggs’s complaint alleges some facts, albeit a generalized statement of facts, which, if proven, would support her claim for relief, and because the expiration of the statute of limitations does not appear clearly on the face of the pleading, the court erroneously granted Jim Skinner Ford, Inc.’s motion to dismiss; we reverse and remand as to this appellee.

II

FORD MOTOR CREDIT COMPANY

The judgment on the pleadings rendered in favor of FMCC requires a different scope of analysis inasmuch as the content of all the pleadings, including the answer, must be considered to determine whether there is a justiciable factual dispute. Rule 12(c), ARCP; Sims v. Lewis, supra, Jones v. Alabama Power Go., 362 So.2d 235 (Ala. 1978); McCullough v. Alabama By-Products Corp., 343 So.2d 508 (Ala.1977).

In this case, the pleadings consist of Braggs’s complaint and FMCC’s answer asserting eight defenses, including the affirmative defense that the statute of limitations barred the action. FMCC’s motion to dismiss the Truth in Lending Act claim, or in the alternative for a judgment on the pleadings, was based upon two grounds: (1) the processing fee was a documentary fee not within the purview of its — the assign-ee’s — duty to disclose under § 226.6 of Regulation Z; (2) the statute of limitations barred the action according to Sixth Circuit authority that the date of the alleged violation is to be included when computing whether the complaint was filed within one year.

The lower court granted FMCC a judgment on the pleadings, presumably taking into consideration all of the pleadings rather than considering just the complaint pursuant to a motion to dismiss. See e. g., Jones v. Alabama Power Co., supra. Procedurally, then, we treat this part of the case as a judgment on the pleadings, and on review we will peruse the pleadings in search of disputed facts.

First, we find that the $81.20 processing fee presents a disputed factual controversy. Braggs alleged, in her complaint, that the fee constituted part of the amount of the finance charge and was improperly denominated as part of the amount financed; thus, the actual finance charge assessed exceeded the amount permitted by law to be charged. In its answer and motion, FMCC alleged that the processing fee was not within the purview of its relationship with the customer, and thus, it could not, by law, be held liable for any TILA violation based upon that item.

A documentary fee has been defined as:

a fee retained entirely by the dealer, which is intended to cover expenses incurred by the dealer in upkeep of the car prior to sale as well as fees for notarizing the various documents prepared in each transaction....

Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511, 519 n.18 (5th Cir. 1976); F.R.B. Letter No. 623 by G. Garwood, August 9, 1972, CCH CCG ¶ 30,872. In Childs v. Ford Motor Credit Company, 470 F.Supp. 708 (D.C.1979), a case appended to FMCC’s motion, Judge Lynne granted Ford Motor Credit Company’s motion for summary judgment finding that the undisclosed breakdown in the sales contract of the documents preparation charge, and the license, transfer, title and registration fees included in the cash price, were not fees within the purview of Ford’s relationship with the customer, as the creditor and not as the seller.

FMCC relies upon this case for its contention that the processing fee is a documentary fee, and that it is not a fee within the scope of its relationship with Braggs. However, in Childs, the fees were broken down and disclosed by the seller on the purchase order although not disclosed in the final sales contract, distinguishable from this case where there is no clarification in any of Braggs’s purchase documents informing her as to what the processing fee represents. Without this factual resolution, either by the documents themselves or through discovery, we cannot categorically hold that this processing fee was one exacted solely by the dealer as a documentary fee. Moreover, the result in Childs should not be relied upon because a careful reading of that case reveals factual distinctions as well as a detailed legal analysis of 12 C.F.R. § 226.6(d), Regulation Z.

In any event, based upon the face of the pleadings alone and these diametrically opposed suppositions as to what these fees represent, there are obviously disputed facts at isshe and the judgment cannot be affirmed. There was no discovery conducted in this case; no exhibits are appended, and we are not apprised by the pleadings as to why the processing fee was exacted and for whose or what costs it defrays. We hold that the nature and extent of the processing fee is a disputed fact, and that based upon the pleadings alone, the lower court was in error.

The jurisdictional statute for TILA claims states that “[a]ny action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). Appellees assert that the TILA claim was untimely filed, contending that § 1640(e) provides not only the jurisdictional time period, but also implicitly provides its own method for computing the time period without employing the procedural rules pertinent to the computation of time. They rely upon Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980), stating that “jurisdiction is defined and circumscribed by the Act itself, in a temporal as well as a substantive sense,” and that procedural rules will govern only when the action is properly before the court, but that they should not be consulted to determine whether the action was timely filed. Rust held that “[t]he phrase ‘within one year from the date of occurrence’ is straightforward. Nothing in that language supports judicial implication of a lapse in time between the ‘occurrence’ and the date the statute of limitations begins to run.” Accordingly, it was decided that the date of the violation is to be included when computing the one year period within which a TILA claim must be filed, and filing on the one year anniversary date is too late.

Braggs, on the other hand, contends that § 1640(e) sets the statute of limitations period, but that the statutory scheme in itself does not provide a guide for computing the time period. Therefore, procedural rules, referring to the computation of time must be consulted. She relies upon Rule 6(a), ARCP, and Lawson v. Conyers Chrysler, Plymouth, Etc., 600 F.2d 465 (5th Cir. 1979), for her contention that the date of the violation is to be excluded when computing the timely filing of TILA claims, and that filing on the one year anniversary date is timely inasmuch as the statute of limitations does not begin to run until the day after the occürrence.

It is not contested that the date of the TILA violation occurred, if at all, on the date the contract was consummated. Harrow v. Beneficial Finance Co., 370 So.2d 1001 (Ala.Civ.App.1979); Hagler v. Ford Motor Credit Co., 367 So.2d 468 (Ala.Civ. App.1978); Hewlett v. John Blue Employees Federal Credit Union, 344 So.2d 505 (Ala.Civ.App.1976). The contract as between Braggs and Skinner Ford was consummated on January 29, 1979, and both parties use that date as the date of the occurrence of the alleged violation. The issue, then, is whether we accept appellees’ position to include January 29th when computing the within one year period, making the one year anniversary date beyond the deadline, or, whether we follow Braggs’s argument to exclude January 29th, resulting in the anniversary date falling within the statutory time limit. We hold, in accordance with the great weight of authority, that the federal statute does not provide its own guide for computing timeliness— the procedural rules must be used for computation purposes — and as such, the date of the TILA violation is not to be included when figuring whether the complaint was filed within one year. We find that Mary Braggs’s claim is not time barred.

From a patent reading of the federal statute, we do not find any language indicating how the one year time period is to be computed. We are unpersuaded by the attempt in Rust to discard the use of procedural rules to determine from what date the statute of limitations shall begin to run. We follow, instead, the holding in Lawson, that the procedural rules must be employed to determine from what focal point the one year time period is to be computed. In Lawson, the court stated:

While there is some disagreement over whether the method of computing time prescribed in Rule 6 should be used for computing time periods contained in federal statutes of limitations, most courts have followed Rule 6’s computation method. C. Wright & A. Miller, Fed. Practice & Procedure § 1163. This court has consistently used Rule 6(a)’s method for computing federal statutory time limitations. J. Aron & Co., Inc. v. S/S Olga Jacob, 527 F.2d 416, 417 (CA 5, 1976); Wilkes v. U. S., 192 F.2d 128, 129 (CA 5, 1951); Rim-mer v. U. S., 172 F.2d 954, 958-59 (CA 5, 1949). Although none of our cases deals with the time limitations in the Truth in Lending Act we see no reason to depart from the general rule in this case. Indeed, Rule 6(a) is particularly appropriate in light of the remedial purpose of the Act, see Mourning v. Family Publications Service, 411 U.S. 356, 363-65, 93 S.Ct. 1652, 1657-1659, 36 L.Ed.2d 318, 326-27 (1973). (footnote omitted)

Construing the language of Rule 6(a), Lawson held that the date of the transaction is to be excluded when computing the within one year time frame specified in § 1640(e) of the Truth in Lending Act.

Alabama has two compatible codifications referencing the computation of time. Code 1975, § 1-1-4 provides in pertinent part: “Time within which any act is provided by law to be done must be computed by excluding the first day and including the last.” In align with this section, Rule 6(a), ARCP, states inter alia:

In computing any period of time prescribed or allowed by these rules, by the local rules of any circuit court, by order of court, or by any applicable statute, the date of the act, event, or default from which the designated period of time begins to run shall not be included.

We find that the wording of these authorities unambiguously concludes that the date of the occurrence of the violation, i. e., the act, event or default, shall be excluded when figuring whether the statute of limitations has expired. Therefore, Mary Braggs timely filed her TILA claim on January 29, 1980 — the one year anniversary date of the alleged violation.

Based upon the foregoing analysis, the order dismissing Jim Skinner Ford, Inc., and the judgment on the pleadings rendered in favor of Ford Motor Credit Company are reversed and the cause remanded for further proceedings not inconsistent with this opinion. All other issues raised in the briefs are pretermitted for review.

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON, EMBRY, and ADAMS, JJ., concur.