author: ADAMS, Justice.

text:
    TWICKENHAM STATION, INC. v. Jimmy Larry BEDDINGFIELD & Tim Beddingfield, Partners, d/b/a Beddingfield Construction Company, and Beddingfield Construction Company, Inc.
    79-830.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      James T. Baxter, III, and Joe M. Berry of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Patrick W. Richardson and James H. Richardson of Bell, Richardson & Herring-ton, Huntsville, for appellees.
   ADAMS, Justice.

This appeal comes to us from the Circuit Court for Madison County. Twickenham Station, Inc. (Twickenham), the defendant below, appeals from a judgment adverse to it. In a jury-waived trial, the court held Twickenham liable under construction contracts entered into with the Beddingfields. The trial court denied Twickenham recovery under its counterclaim against Bedding-field Construction, Inc., and under its third-party complaint against Jimmy L. Bedding-field, doing business as Beddingfield Construction Company. (The Beddingfields initially commenced this action against Twick-enham through their corporation, but later amended their complaint to substitute their partnership as party plaintiff.) By its counterclaim and third-party complaint, Twickenham sought the return of money paid to plaintiffs under two construction contracts performed by them. The trial court also awarded attorney’s fees against Twickenham. Twickenham argued at trial that plaintiffs were not licensed under Code 1975, § 34-8-1, et seq., and claimed that the contracts entered into with them were null and void.

The resolution of two issues is dispositive of this appeal. The first is whether the Beddingfields were licensed in accordance with Code 1975, § 34-8-1, et seq., so as to allow them to perform work as general contractors on contracts exceeding $20,-000.00. The second is whether the trial court properly awarded attorney’s fees against Twickenham. We decide both in the affirmative and uphold the judgment of the trial court.

The facts pertinent to this appeal are as follows. In June 1976, Twickenham entered into a contract with Jimmy L. Bed-dingfield, d/b/a Beddingfield Construction Company, for construction work on its Huntsville, Alabama, restaurant. The contract price was approximately $80,000.00. In April 1977, Twickenham entered into a contract with Beddingfield Construction Co. for construction work on its Montgomery, Alabama, restaurant. This latter contract was on a cost plus basis and it too exceeded $20,000.00. The Beddingfields are general contractors who at the time of the contracts operated their business in a confused and intermingled manner between a partnership and corporate entity, both in the Bedding-field name. Jimmy Larry Beddingfield testified that he did not understand the difference between a partnership and a corporation.

Jimmy Larry Beddingfield and Tim Bed-dingfield had a partnership that did business under the name of “Beddingfield Construction Company.” There was evidence to the effect that their father, Virgil Bed-dingfield, because of health and age reasons, played a passive role in the partnership. The Beddingfields also had a corporation at the time of the contracts. “V. S. Beddingfield & Sons, Inc.,” was incorporated in 1975 by Virgil, Jimmy Larry, and Tim Beddingfield for general contracting work. In March 1977, the name was changed to “Beddingfield Construction Company, Inc.”

It is undisputed that the only general contractor’s license germane to the disputed contract was issued in the name of “V. S. Beddingfield & Son.” The applications for renewal of the Beddingfield license in 1975 and 1976 indicated that “V. S. Beddingfield & Son” was a general co-partnership comprised of V. S. Beddingfield and Jimmy L. Beddingfield. The license was not changed into the corporate name until after completion of work on the disputed contracts.

The proposal for the 1977 contract was issued by the Beddingfields.on a form suggesting their partnership entity. The form bore the heading of “Beddingfield Construction Co.” Jimmy Larry Beddingfield testified that work on the 1977 contract was performed by the partnership, although he acknowledged that the same form was used also for their corporation. Tim Bedding-field testified that the work may have been done by both the partnership and the corporation. It appears that payments under the 1977 contract were made to the Bedding-fields’ corporation. Clayton Broch, principal of Twickenham who negotiated the 1977 contract, testified he believed he was dealing with the corporation, although he testified also that he "placed no particular reliance on the corporation over the partnership.

Twickenham argues that because a general contractor’s license was not issued in the name under which plaintiffs were doing business, there was no compliance with Code 1975, § 34-8-1, et seq., and that the contracts were, thus, null and void. Assuming the contracts to be null and void, Twickenham argues also that monies it had paid already to plaintiffs should be returned. There is no dispute that plaintiffs performed the work of a general contractor. The contracts exceeded $20,000.00, thereby bringing plaintiffs within the definition of a “general contractor” as defined by Code 1975, § 34-8-1.

Recently, in Hawkins v. League, 398 So.2d 232 (Ala.1981), we noted that where the definition of general contractor under § 34-8-1, was met, “express or implied contracts with nonlicensed ‘general contractors’ [are] null and void as a violation of public policy. Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969). Such contracts are illegal and unenforceable by the unlicensed ‘general contractor.’ Tucker v. Walker, 293 Ala. 589, 308 So.2d 245 (1975).” Hawkins, at 235. In that case we denied recovery to an unlicensed contractor who had substantially performed work on defendant’s mobile home park, and who came within the scope of Code 1975, § 34-8-1, et seq. On rehearing we noted that “the statute that we are dealing with is a penal one, and harsh results sometimes flow from the construction of a penal statute.” Hawkins, at 237.

Twickenham cites Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969), as supporting its contention that plaintiffs cannot recover under the disputed contracts. We are of the opinion that Cooper is controlling, but we interpret it differently, from the construction Twickenham places on it. In Cooper, this court denied recovery under a construction contract to Johnston, an unlicensed general contractor who attempted to circumvent the licensing statute. There, Johnston, by written authorization, sought to use the license of Gunn Lumber Company to perform the work of a general contractor. In reviewing the written authorization, this court wrote:

[It was nothing] more than an effort on the part of Gunn Lumber Company, based on a consideration, to permit appel-lee to use its license in the execution of the contract for the erection of the building. Appellee was not connected with Gunn Lumber Company as an officer, partner or employee. The writing was just an attempt on the part of appellee to escape the provisions of Chapter 4, supra, and to operate in the field of general contracting contrary to law. Gunn Lumber Company was in no way responsible for the erection of the building, nor was it a "party directly or indirectly, to the contract of appellee for such erection. We find no provision in Chapter 4, supra, permitting one to use the contractor’s license of another in the manner here undertaken.

Cooper, at 569, 219 So.2d 392.

The facts in Cooper are different from those in this case. Unlike Cooper, there was not an attempt by the Beddingfields to circumvent Code 1975, § 34-8-1, et seq. At all times during the contracts there was a valid general contractor’s license in the Beddingfield name. Although the Bedding-fields’ license did not reflect the exact business entity under which they did business until after the contract was completed, we believe there was substantial compliance with the licensing statute. There is little doubt from the record that the discrepancy between the name in which the Bedding-field license was held and that under which they contracted was due to a lack of business sophistication. Twickenham’s contention that a fraud was worked upon it is wholly without merit. Clayton Broch, who negotiated both contracts on behalf of Twickenham, testified, regarding the Montgomery contract, that he did not believe the Beddingfields’ corporation to be more reliable than their partnership, and that he had no knowledge as to how they were licensed as general contractors. The record is devoid of a showing of fraud on the Bedding-fields’ part.

This court has held that “attorneys’ fees are recoverable only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney [create] a fund out of which fees may be paid.” Shelby County Commission v. Smith, 372 So.2d 1092 at 1096-7 (Ala.1979); Payne v. Empire Life Insurance Co. of America, 351 So.2d 538 (Ala.1977). In the instant case, the 1977 contract contained the following clause: “Provision: Any default in payment, resulting in attorney fees and/or court cost shall be assumed by the purchaser.” Twicken-ham argues that the trial court erred in awarding attorney’s fees against it under this clause of the contract. Twickenham asserts that the language is vague and ambiguous. It points out that it is not a “purchaser” in the strict sense of the word. Although a better word of art might have been chosen, it would take a strained and absurd construction to hold that the word “purchaser” referred to anyone but Twick-enham.

Next, Twickenham argues that the language of the clause is ambiguous further in that it does not make clear what connection there must be between the default in payment and the incurring of attorneys’ fees. Twickenham suggests that under the language employed in the clause, it might be held liable for attorneys’ fees tenuously connected with the default. In Kennedy v. Sorsby, 209 Ala. 188 at 191, 95 So. 891 at 893 (1923), this court stated:

We fully recognize that provisions for attorneys’ fees in contracts of this character are intended for indemnity, and not intended to secure the payment of a fee for unnecessary services or for services rendered necessary by the sole or contributing wrong of the other party, ás held by this court in Compton v. Collins, 197 Ala. 642, 73 So. 334, and that such employment of an attorney must be in good faith and for the purposes provided by the contract. Lyons v. Jacoway, 205 Ala. 456, 88 So. 599.

Cited in King v. Calvert & Marsh Coal Co., 362 So.2d 889 (Ala.1978). Applying the above-cited rule, we find Twickenham’s argument to be without merit. The clear import of the questioned clause is that Twickenham will be liable for attorneys’ fees and/or court costs covered by its default in payment under the contract. Under the Kennedy, decision, such clauses are understood to carry with them a good faith obligation upon the party employing an attorney as a result of a default under the contract.

Lastly, Twickenham contends that the award of attorneys’ fees against it was of an unreasonable amount. The trial court entered a judgment against Twickenham on the 1977 contract for $15,661.62. It awarded attorneys’ fees against Twickenham in the amount of $13,890.00. In its order of judgment, the trial court stated: “The Court has considered carefully the attorney’s fees in that the fees at first examination appear to be excessive. The defendant agreed to pay reasonable attorney’s fees and the complexity of litigation made the fees reasonable and necessary.”

At trial, only plaintiffs produced evidence on the issue of the reasonableness of attorneys’ fees. That evidence came in the form of testimony from Glenn F. Manning, Esq., who is a Huntsville attorney and who had practiced law since 1948. Although Manning testified to a number of considerations that he took into account in explaining his assessment of what would be reasonable attorneys’ fees, we note particularly, though not exclusively, that plaintiffs’ law firm spent over 200 hours on this case and that the subject matter was complex. This court has observed a two-pronged test for reasonableness in awarding attorneys’ fees: “(1) Whether the party claiming the right to attorney’s fees, pursuant to a contract, acted reasonably in employing counsel; and, (2) Were the services, for which attorney’s fees are claimed, reasonable under the circumstances.” King v. Calvert & Marsh Coal Co., at 893.

Our review of this issue leaves us unable to conclude that the trial court’s award of attorneys’ fees was clearly and palpably wrong, without supporting evidence, or manifestly unjust. This is our standard of review on appeal where the case is tried without a jury. Cotton States Mutual Insurance Company v. Connor, 387 So.2d 125 (Ala.1980); Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

Accordingly, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    T. J. LEDBETTER, et al. v. Stephen L. McFALL, et al.
    80-143.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      Ralph L. Brooks, Anniston, for appellants.
    H. Wayne Love, Anniston, for appellees.
   EMBRY, Justice.

This is a boundary line case brought by Stephen L. and Charlotte Holder McFall against T. J. and Cora Belle Ledbetter. It is obvious from the pleadings and judgment that it was brought pursuant to the authority found at Code 1975, Chapter 3, §§ 35-3-1, -2 and -3.

After a non jury trial in which the evidence was in sharp dispute, the trial court entered the following judgment:

This matter coming on to be heard is submitted for final judgment on the pleadings on file and the evidence presented in open court. In this action the plaintiffs have alleged that the boundary line between plaintiffs and defendants is in dispute and contend that the true and correct boundary line is the line as described in the deeds of the parties. The defendants apparently contend that they built a fence to the west of the described line, which is irregular in direction and covers only a portion of the line, and that they “ran” cattle in the area for two or three years. It was further contended that this fence was not placed on the line but east of the line. No other evidence was presented as to where the line was located.
Upon consideration of the evidence presented, the Court finds that the area in question has been in “scrambled” possession throughout the years and that the true and correct boundary line between the parties is the line as called in the deed introduced and to be more particularly described hereafter.
It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the true and correct boundary line between plaintiffs and defendants is described as follows:
Begin at the Northwest Corner of SW 1/4 of NW 1/4 of S 19, TWS 13 South, Range 9 EAST, Calhoun County, Alabama, thence East along the NORTH line of said forty a distance of 939.98 feet to the point of beginning, thence South 09 degrees and 31 minutes West a distance of 601.27 feet to the North line of a public road.
It is further ORDERED by the Court that the plaintiffs are authorized to retain a surveyor, at their expense, to mark said described line as a judicial land line with stakes marked “judicial land line, CV 80-500014.”
Court costs are to be divided equally between plaintiffs and defendants for which let execution issue.

We affirm.

As it obviously appears from the judgment, the Ledbetters contend that a fence to the west of the government survey line was in fact the true boundary line and had been established through their, and those of their predecessors in title, acts of adverse possession which were actual, hostile, open, notorious, exclusive, and continuous for the ten year statutory period. Implicit in the judgment entered by the trial court is a determination that the Ledbetters’ contentions in this regard were insufficient to satisfy the burden of proof which rested upon them.

There is ample evidence fully supporting the findings made in the judgment. That judgment will not be disturbed on appeal and is due to be affirmed if, under any reasonable aspect of the case it is supported by credible evidence and the trial court will not be reversed unless there is a clear and decided preponderance of evidence demonstrating that the trial court found contrary to that evidence. See generally, Kirby v. Jones, 370 So.2d 250 (Ala. 1979).

AFFIRMED.

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


text:
    Jack G. SMITH v. COOPER CHEVROLET, INC.
    80-195.
    Supreme Court of Alabama.
    Sept. 11, 1981.
    R. Stephen Griffis, Birmingham, for appellant.
    Fred Ray Lybrand of Lybrand, Sides, Hamner, Oglesby & Held, Anniston, for ap-pellee.
   ADAMS, Justice.

This case is before us as a result of an appeal from a directed verdict granted in favor of Cooper Chevrolet, Inc., (Cooper Chevrolet) by the Circuit Court of Calhoun County. The plaintiff, Jack G. Smith (Smith) is the owner of a GMC Jim-Jimmy four-wheel drive vehicle that was involved in an accident and required repairs. It is undisputed that plaintiff left his vehicle with Cooper Chevrolet on four occasions. Smith had sued Cooper Chevrolet for damages for conversion because it refused to surrender possession of plaintiff’s vehicle, claiming it had a possessory mechanic’s lien for work performed. The trial court found that Cooper Chevrolet, indeed, had such a lien and had not waived it.

The first contact that Smith had with Cooper Chevrolet was in early 1979. At that time he asked them to repair the GMC vehicle by putting a new frame on the right side, a fender, a hood, the fan which goes to the motor, a radiator, and some door work. This work was required by Smith’s accident, but in addition thereto, Smith required Cooper Chevrolet to repair the power steering gear box of the vehicle.

Smith had insurance covering his property damages arising from the accident. At some point in time during Smith’s transactions with Cooper Chevrolet, his insurance carrier had made a check payable to Citi-Banc (the mortgage holder on the vehicle), Cooper Chevrolet, and Smith in the amount of about $2,100.00.

After Smith’s truck had been in the possession of Cooper Chevrolet for eight weeks, Smith went to pick it up. We believe the following statements made by Smith summarize succinctly his position, as well as the position of Cooper Chevrolet:

He said that it was fixed is the reason I picked the truck up. It was on Friday evening, you know, and I had just got paid, and I went down there to pick it up. Mr. Green was busy with somebody and I asked them was it all right if I went to get my check cashed, my payroll check cashed. He said yeah; so it was almost closing time. Then by the time I got back down there they had done closed. When I got the check cashed and got back down there, they were closed. I drove it over the weekend and carried it back Monday. [Emphasis added.]

Smith stated further, concerning the events of that Friday evening:

It was Friday evening when I picked it up and I drove it to get my check cashed and I noticed a bunch of noise coming from the right front end, you know. Some of the emblems were missing, and the bumper needed adjusting, the antennae [sic] was not on there, the doors needed adjusting. I noticed all of that, you know, immediately; so, I took it back the following Monday morning.

After Smith’s truck had been with Cooper Chevrolet for a couple of weeks, he came to pick it up a second time. He was told that he could not get the truck unless he paid for the repairs. Smith said that he needed the truck in order to get the endorsement of Citi-Banc on a check that was made payable to the bank, to him, and to Cooper Chevrolet. Thereupon Smith was allowed to take the check for the purpose stated, but he did not return for several weeks and when he did return, he claimed that the vehicle still had not been repaired. At this time Cooper Chevrolet again indicated that it would hold the truck for the repair bill and proceeded to put chains on the truck and attach those chains to its wrecker. Smith removed the chains and took the vehicle away.

On the last occasion Smith delivered the truck to Cooper Chevrolet, its agents again asserted the company’s lien and still had possession of the truck at the time the trial court directed a verdict in favor of the company.

There is only one issue in this case: Did the trial court err in directing a verdict in Cooper Chevrolet’s favor under the facts in this case? We answer in the negative and affirm.

In Perdue v. Mitchell, 373 So.2d 650 (Ala.1979), this court said:

A directed verdict is proper in two circumstances:
First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense, and second, where there are not any controverted issues of fact upon which reasonable men could differ [Citation Omitted]. Loeb and Co., Inc. v. Martin, 295 Ala. 262, 264, 327 So.2d 711, 712 (1976).
ARCP 50, which establishes the directed verdict device, specifically incorporates the scintilla rule. The appellate court must, therefore, examine the record to see if there exists “. . . a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. . . .” Kilcrease v. Harris, 288 Ala. 245, 252, 259 So.2d 797, 802 (1972).

Perdue v. Mitchell, at 652-3.

At the outset, we agree with Smith that the common law possessory mechanic’s lien as opposed to the statutory mechanic’s lien, has vitality only if the mechanic retains possession, Code 1975, § 35-11-110. The statement contained in the old case of Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944 (1917), still states good law:

This common-law right to retain the property until the lien is discharged is waived or lost by a release of the property without enforcement. This rule does not authorize the artisan or machinist to thereafter retake the property and hold it under common-law right. Such a course was not sanctioned by the immemorial custom now relied on by plaintiff, and would easily invite breaches of the peace. Walden Auto Co. v. Mixon, 196 Ala. 346, 71 So. 694; Voss & Co. v. Robertson & Co., 46 Ala. 483; Mobile B. & L. Ass'n. v. Robertson, 65 Ala. 382, 390; Lickbarron v. Mason, 6 East, 21, 27; White v. Smith, 44 N.J.Law, 105, 43 Am.Rep. 347; Mathias v. Sellers, 86 Pa. 486, 27 Am.Rep. 723; 25 Cyc. 675(4); 4 Mod.Am.Law, p. 124.

Alexander, at 588, 76 So. 944.

But Smith cannot have his cake and eat it too. The doctrine of estoppel comes into play. Black’s Law Dictionary, 494 (5th ed. 1979), says that when there is estoppel “the party is prevented by his own acts from claiming a right to [the] detriment of [the] other party who was entitled to rely on such conduct and has acted accordingly.” In each of the three instances when Smith got possession of his vehicle, he acted in such a way that there was not even the slightest gleam, glimmer, spark, particle, trace or scintilla of evidence to support the claim that Cooper Chevrolet had in some way waived its mechanic’s lien. On the first occasion, and this is probably the most important occasion because that was the time most of the work had been done, Smith asked permission to take the truck to get his payroll check. It is further undisputed that additional work was needed, which negates any conclusion that Cooper had waived its mechanic’s lien, simply because the work was not completed. It is obvious that Smith thought this because he brought the vehicle back the same day, but found the business had closed. Furthermore, he brought it back the next business day.

On the second occasion, Cooper Chevrolet unequivocally asserted its lien because the work had been completed, and Smith asked permission to take the truck away to get the insurance check, which Cooper could reasonably expect was to be brought back to pay for the repairs. Obviously, again, because of the doctrine of es-toppel, no waiver occurred.

On the third occasion Cooper Chevrolet again asserted its lien, but Smith took the vehicle by force when he removed the chains which the company’s agents had attached to Smith’s truck and its wrecker.

We hold that there cannot be a waiver or a release of a possessory mechanic’s lien where the owner of the repaired property obtains possession from the lien-holder by force or conditional surrender of the property for the benefit of the property owner. On the first occasion Smith got the truck to get his payroll check; on the second occasion he got it to get his insurance check; on the third occasion he forcefully took it. Under these circumstances, there can be no waiver, especially where the rights of third parties had not intervened.

This case is unlike Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975). In that case, the plaintiff was unable to pay the amount of the repair bill and Ray Hughes Chevrolet worked out an arrangement whereby she could pay the bill in thirty days and released the car to her. This was an outright release of the mechanic’s lien in exchange for an arrangement whereby payment would be made in thirty days. Six days after the release, plaintiff brought the car back on the ground that repairs had not been made satisfactorily, and the defendant then held the car, claiming a mechanic’s lien. The facts in that case are easily distinguished from the facts in this case. There was an outright release in Hughes ; there was a conditional release in the instant case. Floyd v. Rambo, 250 Ala. 101, 33 So.2d 360 (1948). On this issue no reasonable men can differ and the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice. TORBERT, Chief Justice

text:
    DOUBLE C. PRODUCTIONS, INC., a Corporation v. EXPOSITION ENTERPRISES, INC., a Corporation.
    80-335.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      William L. Irons, Birmingham, for appellant.
    James S. Ward of Stuart & Ward, Birmingham, for appellee.
   JONES, Justice.

This is an appeal from an order of the Circuit Court of Jefferson County denying Appellant’s motion to enjoin the Appellee’s alleged illegal use of a trade name.

In August of 1980, after approximately ten years of sponsoring the Birmingham Sport and Boat Show, Appellant sold the Show to Appellee for a purchase price of $80,000 due in six installments of various amounts. The contract of sale, in Section 1, states the “Subject of Sale”:

“ i. Name — BIRMINGHAM SPORT AND BOAT SHOW,
ii.Goodwill associated with name,
iii.Accounts, contracts receivables and all other contracts for subject show,
iv.Books, records and documents of subject show,
v.Inventory, if any.”

The contract further provides for Appellant to “retain a security interest in all items described in Section 1, as well as accounts and contracts receivable, leasehold interests and other contracts pertaining to said show coming into existence subsequent to said execution of this Agreement and Seller shall have all of the rights and remedies provided to a secured party pursuant to the Texas Business and Commerce Code to secure and enforce Seller’s security interest in the event of default.” The contract went on to define “default,” and set out the remedies available to Appellant upon Ap-pellee’s default, including repossession and sale of the collateral.

In January of 1981, Appellant notified Appellee that foreclosure on the contract collateral for the alleged default of Appel-lee would be held on January 30, 1981, at 11:00 A.M., at 5010 Dincans, Houston, Harris County, Texas, “unless payment, as called for, had been previously made.” The foreclosure sale was completed on January 30, coinciding with the third day of the five-day 1981 Birmingham Sport and Boat Show, under Appellee’s sponsorship. On this same day, the Jefferson County Circuit Court denied Appellant’s motion for a temporary restraining order to enjoin Appel-lee’s continued use of the name “Birmingham Sport and Boat Show,” and set a date for a hearing on Appellant’s motion for a preliminary injunction. At the close of the February 9, 1981, hearing on that motion, the trial court denied injunctive.relief, stating:

“[I]t appears to the Court that there is a reasonable likelihood that there has not [been] a material breach of this contract at the time the foreclosure sale was had and at the time the foreclosure was declared. It may well develop that on the merits that it was, but I’m concerned that all that appears right now in terms of monies due the Plaintiff in this case that the evidence may have been there, but for whatever reason, I [am] not satisfied that it has been proven that there has been a breach of [the money obligation] from a standpoint of payment to the Plaintiff.
“. . . I’m not prepared to . . . rule at this time that it has been shown to the Court that there is a likelihood of immediate and irreparable injury. I would anticipate and I would urge the parties to bring this case to a quick conclusion on the merits so that both parties know where they stand in the terms of their obligations under this agreement because . of the Boat Show.”

This appeal followed.

Within the bounds of judicious application, the power to grant or deny preliminary injunctive relief is a function of the trial court; and, in reviewing the exercise of this power, this Court consistently recognizes and upholds, if at all possible, the wide discretion of the trial court. Our circumscribed review of a trial court’s order granting or refusing a preliminary injunction is mandated by well-defined requisites which the movant must meet in order to establish, to the satisfaction of the trial court, the need for preliminary relief.

The standard developed through our cases, by which the trial court measures application for preliminary injunctive relief, prescribes those requisites:

1) “A trial judge does not have to find that the party seeking a preliminary injunction would certainly prevail on the merits in order to grant the injunction. Rather, if he finds that the party has presented a fair question as to the existence of the right to be protected, and further finds that temporary interference to preserve the status quo is convenient and expedient, then he may exercise his discretion and grant the injunction.” Alabama Ed. Ass’n v. Bd. of Trustees, 374 So.2d 258, 262 (Ala.1979).
2) “. . . An injunction should not be granted unless it is necessary to prevent irreparable injury.” First City-National Bank of Oxford v. Whitmore, 339 So.2d 1010, 1011 (Ala.1976).
3) “Injunctions, however, will not be granted ‘. .. merely to allay apprehension of injury; the injury must be both imminent and irreparable in a court of law . . . ’ Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 153, 77 So.2d 574, 577 (1917).” Watts v. Victory, 333 So.2d 560, 563 (Ala.1976).

In measuring the relief sought by a complainant against this standard, the trial court, then, in its discretion and under the individual facts and circumstances of each case, “. .. may consider and weigh the relative degree of injury or benefit to the respective parties....” Valley Heating, Cooling & Elec. Co. v. Alabama Gas Corp., 286 Ala. 79, 82, 237 So.2d 470 (1970).

It is a settled principle of law in Alabama that granting or refusing a motion for preliminary injunctive relief is within the wide discretion of the trial court. This Court will review and reverse such a determination only when, in the light of reason and of all the circumstances which were before the trial court, the trial court abused its discretionary freedom and committed a clear error which, if uncorrected, would result in obvious injustice. Valley Heating, Cooling & Elec. Co. v. Alabama Gas Corp., 286 Ala. 79, 82, 237 So.2d 470 (1970); Willowbrook Country Club, Inc. v. Ferrell, 286 Ala. 281, 239 So.2d 298 (1970); Watts v. Victory, 333 So.2d 560, 562 (Ala.1976); Alabama Ed. Ass’n. v. Bd. of Trustees, 374 So.2d 258 (Ala.1979).

In Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975), this principle was more clearly defined by the adoption of the language of 5A C.J.S. Appeal & Error § 1591 (1958), which states:

“The discretion exercised by the trial court is, however, a legal or judicial one which is subject to review for abuse or improper exercise, as where there has been a violation of some established rule of law or principle of equity, or a clear misapprehension of the controlling law . . . and, where an abuse of discretion is clearly made to appear, the appellate court will reverse the order or decree ...” (Emphasis supplied.)

This Court has further held that although the “ultimate test on appeal is whether the trial court abused its discretion, its application must find its source in the initial issues (with their corresponding presumptions and burdens) presented to the trial court.” Alabama Ed. Ass’n. v. Bd. of Trustees, supra. The test, then, of the trial court’s discretion in this case has its premise in the pleadings and proof offered at the hearing on the motion for a preliminary injunction. At issue before the trial court was the propriety and validity of the Texas foreclosure and the vesting of title of the collateral in Appellant, and the unlawful use of the the trade name Birmingham Sport and Boat Show (an element of the collateral foreclosed on) by Appellee after the foreclosure.

Appellant’s amended complaint succinctly narrows the basis on which injunc-tive relief is sought. In that pleading it alleges:

1. The execution of a contract between the parties for the sale of the Birmingham Sport and Boat Show and for the security interest contained therein, and the default of Appellee and the subsequent uncontested foreclosure by Appellant;
2. Appellee’s continuous and unlawful use of the name Birmingham Sport and Boat Show after said foreclosure;
3. “immediate and irreparable injury” sustained by Appellant “by the continuing and repeated illegal use of the name Birmingham Sport and
. Boat Show;”
4. Appellant’s lack of an adequate remedy at law; and
5. Appellant’s request for temporary and permanent injunctive relief in enjoining Appellee’s further use of the name Birmingham Sport and Boat Show.

The pleading and proof submitted by Appellant present a prima facie showing of entitlement to the injunctive relief sought. The fact of a foreclosure, purportedly executed in accordance with the Texas version of the Uniform Commercial Code, effectively transferred title of the trade name from Appellee/Mortgagor to Appellant/Mortgagee. Because there is no showing, by pleadings or proof, traversing Appellant’s prima facie case, the trial court lost its discretionary power and was bound to grant the relief sought. Stated otherwise, Appellant’s amended complaint, seeking only in-junctive relief, is grounded upon allegations which, if true, entitle the Appellant to the relief prayed for. The uncontested foreclosure established in the Appellant the clear legal right to the exclusive use of the trade name “Birmingham Sport and Boat Show.”

These allegations, and the proof in support thereof, must be met by countervailing contentions or traversing factual averments to invoke the discretionary powers of the trial court. Otherwise, the clear legal right of the Appellant to the injunctive relief sought stands uncontradicted and the denial of a preliminary injunction is an abuse of the trial court’s judicial discretion.

We, of course, are not reviewing a final judgment on a hearing of the case on its merits. The only issue here presented is the propriety of the order denying the motion for preliminary injunction on the Plaintiff’s pleading (without responsive pleading by Defendant) and the proof adduced by the parties at the preliminary injunction hearing. The evidence may show that Plaintiff is not entitled to a permanent injunction. For example, the Defendant, pursuant to the Texas U.C.C. parallel to our Code 1975, § 7-9-506, may offer to redeem the collateral. We merely hold that the record before us establishes a clear right of the Plaintiff to the relief sought, absent the assertion of any countervailing legal defense thereto. Therefore, the trial court was without the discretionary power to deny the injunctive relief prayed for.

The order denying a preliminary injunction is reversed and this cause is remanded for the entry of an order consistent with this opinion, and for an expeditious hearing on its merits.

REVERSED AND REMANDED.

MADDOX, FAULKNER, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON and EM-BRY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I dissent. It is well recognized in Alabama that the burden rests with the moving party to establish and prove to the trial court that all of the elements necessary for the issuance of a preliminary injunction exist. Alabama Education Association v. Board of Trustees of the University of Alabama, 374 So.2d 258 (Ala.1979). Included in this burden is the duty of the movant to show that it would suffer irreparable harm if no injunction issued, that there is at least a probability of ultímate success on the merits of the controversy, and that the injunction is necessary to prevent interference with the status quo. Alabama Education Association v. Board of Trustees of the University of Alabama, 374 So.2d 258 (Ala.1979); International Molders & Allied Workers Union v. Aliceville Veneers Division, Buchanan Lumber Birmingham, 348 So.2d 1385 (Ala.1977); Watts v. Victory, 333 So.2d 560 (Ala.1976).

As Justice Beatty stated in International Molders, “[T]he injunctive process is a power to be exercised sparingly . . . and rarely granted on interlocutory applications,” 348 So.2d at 1390. The only exception is that:

[T]he right of complainant must be clear and unmistakable on the law and the facts; and there must exist an urgent and paramount necessity for the issuing of the writ in order to prevent extreme or other serious damage which would ensue from withholding it.

City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550 (1938). It is quite apparent that the trial court did not find all of these elements present and felt that Double C Productions, Inc., had failed to meet its burden.

In determining whether a preliminary injunction should issue, wide discretion is accorded the trial judge and if no abuse of that discretion is shown, his action will not be disturbed on appeal. Alabama Education Association v. Board of Trustees of the University of Alabama, 374 So.2d 258 (Ala.1979); Watts v. Victory, 333 So.2d 560 (Ala.1976); Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975). There is an abuse of discretion only when the trial judge exceeds the bounds of reason, considering all the circumstances before the Court. Valley Heating, Cooling & Electric Co. v. Alabama Gas Corp., 286 Ala. 79, 237 So.2d 470 (1970). To establish an abuse of that discretion, an appellant must show that the trial court committed a clear and palpable error that will constitute a manifest injustice unless corrected. Alabama Education Association v. Board of Trustees of the University of Alabama, 374 So.2d 258 (Ala.1979); Watts v. Victory, 333 So.2d 560 (Ala.1976).

Viewing the circumstances of this case, I cannot say that the trial court abused its discretion beyond the “bounds of reason,” nor can I find “clear and palpable error.”

The trial court found that prior to January 23, 1981, Exposition Enterprises, Inc. (Exposition) had received no notice of any complaints or problems concerning the show, the sales contracts, or the payment of creditors from Double C Productions, Inc. (Double C). It was not until 5:00 p. m., January 26, 1981, only two days before the show was to begin, that Exposition first learned that Double C had any complaints with the contract. It was at this time that Exposition was notified of a proposed foreclosure in Texas, to take place at 11:00 a. m., January 30, 1981. As recognized by the trial court, this imposed severe limitations on Exposition. The trial court noted:

Well, it is a little difficult to just — to contest something in Houston, Texas of [sic] Huntsville, Texas or wherever the foreclosure was held in the period of time that was given.

Yet Exposition did attempt to forestall the foreclosure. Telephone calls were placed to Double C’s Texas attorney on January 28, 1981, on January 29, 1981, and on January 30, 1981, in an effort to resolve the dispute. These calls, however, were not returned until after the foreclosure sale on January 30,1981. Yet the complaint in this case, though fourteen pages in length, was filed at 12:39 p. m. in the Jefferson County, Alabama, Circuit Court, barely one hour after the foreclosure sale was completed. Thus, Exposition was given little, if any, opportunity to contest the foreclosure.

Furthermore, as the trial court suggested, any alleged breaches on Exposition’s part were not material. Likewise, Double C did not establish to its satisfaction that irreparable harm would result if no injunction issued; besides, the court found that Double C had an adequate remedy at law. The trial court stated:

Further examinations of the matters and relief sought by the Plaintiff (Double C) shows a claim for money, damages and personal property. These matters do not constitute irreparable injury and preliminary injunctive relief is not appropriate as a substitute for seizure.

Thus, Double C has an adequate remedy at law and can proceed under its claim for money damages.

Finally, it is important to note that one important function of a temporary injunction is the preservation of the status quo. Alabama Education Association v. Board of Trustees of the University of Alabama, 374 So.2d at 262. Yet here the granting of a temporary injunction would have disrupted and changed the status quo. At the time of the foreclosure, of the filing of the complaint, and of the hearing, Exposition was promoting and conducting the show and dealing with its connected obligations. Yet, Double C, if the temporary injunction issues, will replace Exposition and perform these duties. Without doubt, this alters the status quo.

It is my firm belief that Double C Productions, Inc., did not meet its burden in the court below, and that the trial court did not abuse its discretion in denying the preliminary injunction. Furthermore, the trial court’s judgment and order were not clearly and palpably wrong, without supporting evidence, or manifestly unjust. As a result, I believe that the trial court should be affirmed.

ALMON and EMBRY, JJ., concur.


author: JONES, Justice.

text:
    MAGIC CITY METALS, INC. v. ORANGE STEEL INDUSTRIES, INC.
    80-457.
    Supreme Court of Alabama.
    Sept. 11, 1981.
    Stanford J. Skinner of Skinner & Wild-smith, Birmingham, for appellant.
    E. Farley Moody, II of Moody, Burford & Phillips, Birmingham, for appellee.
   JONES, Justice.

The Appellant, citing, ARCP 19(a), states the only issue presented for our review as follows:

“The judgment is contrary to the law in that the necessary parties needed for a just adjudication have not been joined in the action.”

Appellant’s alleged error is predicated on these facts: During the pendency of this action, Parsons Steel Industries, Inc. (original Plaintiff), was adjudicated a bankrupt; immediately prior thereto, First Alabama Bank of Montgomery foreclosed a mortgage executed by Parsons Steel and then assigned its interest under the foreclosure sale to Orange Steel Industries (substituted Plaintiff). Therefore, says Magic City Metals, Inc. (Defendant/Appellant), the judgment in favor of the substituted Plaintiff is deficient for failure to join Parsons Steel and the Trustee in Bankruptcy as necessary parties Plaintiff in this action.

Magic City’s contention, with respect to Parsons Steel as a necessary party, is without merit for numerous reasons, two of which are most obvious:

1) Magic City’s amended answer raised as a defense that Parsons Steel “has no standing and is not a proper party or owner of accounts receivable,” citing the fact that the account sued upon was included in the security agreement foreclosed by the bank; and

2) Magic City moved for summary judgment, stating as grounds therefor that the bank foreclosed on the security agreement embracing Parsons Steel’s accounts receivable and assigned its interest thereunder to Orange Steel, thereby praying that “the Complaint should be dismissed or the Plaintiff, Orange Steel Company, substituted therein.” Suffice it to observe that the trial court obliged (albeit 11 months later), with no objection from the Defendant, by granting the Plaintiff’s motion to “substitute Orange Steel Industries for Parsons Steel Industries as party Plaintiff.”

As to the necessity of the Trustee in Bankruptcy as a party plaintiff, we need only point to the Trustee’s letter of record notifying the Defendant’s lawyer that he acknowledged the Bank’s superior claim on Parsons Steel’s accounts receivable and the Bank’s valid transfer of its interest to Orange Steel, thus disclaiming any interest therein. Moreover, the two-year period in which the trustee is authorized to assert a claim (11 U.S.C. § 546) has long since lapsed with no showing that he has sought to exercise his prerogative to prosecute a claim on behalf of Parsons Steel’s creditors.

AFFIRMED.

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

      . We have not overlooked Appellant’s further contention that the judgment represents a compromise of the parties’ claims and counterclaims unwarranted by the evidence. This issue is not adequately presented to merit our review.


author: BRADLEY, Judge.

text:
    Christopher KIRYA v. George B. BULLS; and George S. Bulls d/b/a Bulls Realty Company.
    Civ. 2737.
    Court of Civil Appeals of Alabama.
    Aug. 26, 1981.

      Milton C. Davis, Tuskegee, for appellant.
    Ernestine S. Sapp of Gray, Seay & Lang-ford, Tuskegee, for appellees.
   BRADLEY, Judge.

This is an appeal from a denial of a motion for new trial.

On October 24, 1979 Christopher Kirya filed a complaint in the District Court of Macon County seeking to recover $1,500 he had given George B. Bulls, and George S. Bulls d/b/a Bulls Realty Company as a deposit in support of an oral agreement to purchase land. Kirya also alleged misrepresentation and conversion.

The defendants filed an answer denying the allegations of the complaint and counterclaimed for the unpaid portion of the agreed sales price, i. e. $3,400. Kirya did not answer the counterclaim but the district court deemed it denied.

After a hearing the district court concluded that Kirya had orally agreed to purchase the lots in question, and said that the only memorandum of this agreement was a receipt for a $500 down payment on the land on which there was written that the deposit was conditioned on a building loan being approved and a second receipt for an additional $1,000 paid to defendants but which contained no condition.

The district court thereupon entered a judgment in favor of Kirya for $750 and denied defendants’ counterclaim.

Kirya appealed to the Circuit Court of Macon County on April 22, 1980. On April 30, 1980 Kirya filed an answer to Bulls’ counterclaim (which had been originally filed in district court) in which he denied owing the balance of the purchase price. Kirya also raised for the first time the affirmative defense of the statute of frauds to the counterclaim only.

On October 9, 1980 the circuit court granted defendants’ motion to strike Kir-ya’s statute of frauds defense on the ground that it had not been raised in the district court, and, after a trial de novo, found that an oral agreement for the sale and purchase of land existed and rendered judgment for defendants on the plaintiff’s claim for $1,500. The trial court denied defendants’ counterclaim. Kirya then asked for a new trial contending that the court erred in finding that the parties’ agreement contained a forfeiture provision and that plaintiff had an obligation to make a formal application for financing. The motion was denied and Kirya appealed to this court from that order.

Appellant raises two issues in brief. The first issue questions the validity of the trial court’s order striking his affirmative defense to the defendants’ counterclaim, and the second issue questions the sufficiency of the evidence to support the trial court’s findings of fact.

Although Kirya appealed only from the denial of his motion for a new trial, under A.R.A.P. Rules 3(c) and 4(a)(3) this court can decide the propriety of the trial court’s order striking appellant’s affirmative defense to defendants’ counterclaim even though this issue was not raised in the motion for a new trial. Rule 3(c) provides, in part: “The notice of appeal shall . . . designate the judgment [or] order . . . appealed from .... Such designation . . . shall not, however, limit the scope of appellate review.” Rule 4(a)(3) provides: “Any error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court . . . . ” See McGough v. Slaughter, 395 So.2d 972 (Ala.1981); Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1118 (Ala.1980). Therefore appellant’s first issue is properly before this court.

An appeal from a district court is heard in circuit court by trial de novo. A trial de novo is normally considered a totally new proceeding wherein the court considers the evidence anew. State v. Ball-Co Contractors, Inc., 372 So.2d 331 (Ala.Civ.App.), cert. denied, 372 So.2d 335 (Ala.1979). It would thus seem to follow that in a trial de novo the parties could file additional pleadings.

In the present case, however, it is unnecessary to decide whether appellant rightfully filed an affirmative defense to appellees’ counterclaim in the circuit court after not having done so in the district court because the trial court ruled in favor of appellant on the counterclaim. In other words, if the trial court erroneously struck appellant’s affirmative defense to the counterclaim, such error would at most be harmless error since appellant could not have been prejudiced by such action in the light of the ruling on the counterclaim. Rule 45, A.R.A.P.

As to Kirya’s second issue, the circuit court made the following findings of fact in its judgment:

The essential terms of the agreement between the parties were that Plaintiff would purchase certain real estate for an agreed upon sales price of $4,900; an additional term was that Plaintiff would forfeit any amount paid in the event that he did not complete the transaction with the express limitation that forfeiture would not occur if Plaintiff could not obtain financing. At some point the parties consulted a contractor to obtain an estimate for the construction of a particular house. An estimate was given. Later Plaintiff was told the house he desired constructed would cost substantially more. Plaintiff went to First Federal Savings and Loan Association of Tuskegee where he discovered that he could only obtain 80% financing. Plaintiff testified that he could not afford to pay 20% down and that consequently he never made a formal application for financing. Plaintiff further testified that he never talked with any other financial institution.

Where the trial court enters judgment after hearing the evidence ore tenus, every presumption will be indulged in favor of its judgment and its findings will not be disturbed unless palpably wrong. Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027 (Ala.1980).

After a careful examination of the evidence, we are convinced that it supports the finding that Kirya failed to prove that he had applied for and been denied financing for the construction of a house on the lots in question. Based on this state of the record we cannot say that the circuit court’s judgment was palpably wrong.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Linda Alexander TANANA v. Edgar F. ALEXANDER.
    Civ. 2744.
    Court of Civil Appeals of Alabama.
    Aug. 26, 1981.
    James P. Smith of Harrison, Burwell, Smith & Sutherlin, Huntsville, and C. Park Barton, Tuscaloosa, for appellant.
    David H. Bibb of Coleman & Bibb, Decatur, for appellee.
   WRIGHT, Presiding Judge.

This is ah appeal from a determination of arrearage of child support. The custodial mother appeals, presenting the single issue: Does the father have the burden of proving payment of child support payments that are in dispute?

This issue arises from a factual dispute between the parties as to the amount of arrearage by the father. The evidence was in sharp dispute. The mother called the father to the stand as an adverse witness and used his cancelled checks to show a balance owing after deducting the cancelled checks from the total support due over the years to be $5,200. She testified that she did not keep records, but her best judgment was that the balance owing after deducting the cancelled checks was the amount of arrearage. She further testified that the father never made cash payments. On the other hand, the father testified that the checks brought to trial were not all the checks he had paid; others were lost during three changes of residence and others had not been returned after an IRS audit. He also testified he had made cash payments and several inter-bank transfers. Further, in his best judgment he was current as of May 1979, but was in arrears from that date to trial except for a $250 payment. The trial court found the husband was in arrears from May 1979, excepting the $250 payment, and set arrearage at $1850. The judgment reflects the following:

This Court is of the opinion that the burden of proof in this case rests with the petitioner who makes the allegations as stated above. It is the opinion of this Court that the orders for the payment of support in this case is not the kind of judgment which would require the defendant to allege and show satisfaction of either under our cases or statutes when the defendant is brought into Court for his failure to comply with the same as in this case. If these statutes or the logic of some of the cases apply in proceedings of this kind, it is the opinion of the Court that their application starts when a judgment is entered such as the one which is prayed for in this petition. The burden of proof is more important in this case than in most cases, because the plaintiff states that she kept no records of payments, and that she does not know what payments were made, with the exception of the ones for which canceled checks are offered, and she does not know the amount delinquent. The defendant, also, is in almost the same position. He has no records, except canceled checks, and he cannot advise the Court as to exact payments. These transactions have occurred over a long period of time. The defendant admits that he is delinquent in the sum of $1,850.00. This is the only solid evidence which the Court has with reference to the delinquency. In view of the fact that the burden of proof is on the plaintiff, the Court finds that the defendant is delinquent in the sum of $1,850.00 for support which was provided by the final judgment in this case.

It is against the background of the evidence and the quoted portion of the judgment that the mother poses her issue: The father should have the burden of proof to prove amount of arrearage. We disagree with this proposition and affirm.

The mother urges that she should not have the burden of proof upon any of three theories: (1) Each installment payment for child support becomes a final judgment as of the date due, thereby placing the burden on the father to prove satisfaction of a judgment less than ten years old under § 6-9-191, Code (1975) and Grayson v. Schwab, 235 Ala. 398, 179 So. 377 (1938), (2) Payment is an affirmative defense under Rule 8(c), A.R.C.P. which must be pleaded and proved and (3) Strong public policy calls for the establishment of a rule that the burden of proof should be on the father to prove actual payment of child support.

The first theory rests on two propositions: The first is that each accrued child support payment automatically becomes a final judgment on the date it is due. See generally, 8 Ala. Digest, Key 277 for long line of cases for this general language; the second is that § 6-9-191 places the burden of proof on the person claiming payment of a final judgment less than ten years old. See, Grayson v. Schwab, supra. Therefore, mother argues that father has the burden of proof in proving payment of disputed child support payments which have accrued for less than ten years.

Our supreme court recently analyzed the legal status of past-due and unpaid child support payments in Austin v. Austin, 364 So.2d 301, 302 (Ala.1978);

Considerable confusion has arisen because of the appellation that past due and unpaid child support and alimony payments are “judgments” or “final judgments.” See Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977). It is commonly stated that installment payments decreed in a divorce for alimony or support and maintenance of minor children become final judgments as of the dates due and may be collected as other judgments. See Andrews v. City National Bank of Birmingham, supra; O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969); Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963); Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953) (On Rehearing). The “finality” of these judgments appears to have arisen from those cases which hold that installments which mature before a petition to modify is filed are immune from change. Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); Scott v. Scott, 265 Ala. 208, 90 So.2d 813 (1956).
Past due and unpaid alimony or child support payments are not “judgments” for all purposes. For example, in Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1966), it was held that a lien on the husband’s real property for past due and unpaid installment payments of alimony awarded under an Alabama decree could be acquired only be a judicial ascertainment and declaration of the amount past due and filing a proper certificate showing such a judgment.

We find this analysis compelling. We hold, in the context of a custodial parent coming into court seeking a judicial determination of arrearage, that alleged past-due and unpaid child support payments are not “final judgments” for purposes of § 6-9—191 until there has been a judicial ascertainment and declaration of the amount past due. Thus, the mother’s reliance on statutory presumptions regarding satisfaction of a judgment falls; there is no “judgment” to satisfy. This result is buttressed by the recent language of this court in Littlefield v. Cupps, 371 So.2d 51, 52 (Ala.Civ.App.1979), that judgments referred to in § 6-9-191 are “those capable of being executed—i. e., those which are complete, entire, final, in which both liability and damages have been finally determined.”

The mother’s second contention is that payment is an affirmative defense which must be proved. We have no quarrel with this proposition but do not find it dispositive of the case. Having held that alleged past-due and unpaid child support payments are not judgments until there has been a judicial determination of the amount due, the general rule of allocation of burden of proof set out in King v. Aird, 251 Ala. 613, 618, 38 So.2d 883, 888 (1949) governs:

The burden in the sense of the duty of producing evidence may pass from party to party as the case progresses but the burden of proof meaning the obligation to establish the truth of a given proposition or issue rests throughout the trial upon the party asserting the affirmative of the issue and unless he meets this obligation upon the whole case, he fails. The burden of proof never shifts during the course of the trial.

The mother had both the burden of producing evidence and the obligation to establish the amount of the arrearage. She put on a prima facie case of amount of arrearage, and the father assumed the burden of producing evidence to rebut the amount of arrearage. Without rehashing the evidence, it is clear that the evidence was in sharp conflict as to amount of ar-rearage. The trial court heard the evidence, judged the demeanor of the witnesses and determined the disputed facts. Under the ore ten us rule, we cannot say the determination was plainly and palpably wrong. Stated differently, we are unable to find the trial court abused its discretion in finding the mother did not satisfy the burden of proving the amount of arrearage at $5,200.

The mother’s contention that strong public policy grounds call for establishing a rule that the burden of proof should be on the father to prove payment is likewise unavailing. While not directly stated, it appears the primary thrust of this contention is that the father’s proof should be entirely documentary, with items such as cancelled checks, payment through the court, receipts for cash and the like. Certainly this is the best method of proof and may forestall swearing matches, but we are not persuaded that such should be the only method of proving payment of child support.

The mother’s request for an attorney’s fee is denied. § 30-2-54, Code (1975), Scott v. Scott, 375 So.2d 797 (Ala.Civ.App.1979).

The judgment of the trial court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Larry W. ABEL v. Judy K. Abel HADDER.
    Civ. 2594.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.

      Martha Campbell Watson, Birmingham, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

While this case primarily involves post-divorce modification proceedings, Mr. Abel shall still be referred to as the husband and Mrs. Hadder as the wife. No brief has been filed in this court on behalf of the wife.

The June 1, 1979 divorce judgment approved an agreement of the parties whereby, as to presently pertinent provisions, the wife received all of the household furniture, furnishings and fixtures (furniture), and she was awarded the custody of the two minor children of the parties, who were then two and four years of age. The husband agreed to pay certain debts, including a balance of approximately $5,000 due to Central Bank.

On October 4, 1979, the parties filed a joint petition, and pursuant thereto, the trial court modified the June divorce judgment by changing custody of the two daughters to the husband and by giving the furniture to him. That modification was by agreement of the parties, and this joint petition to modify stated that there had been a material change in the circumstances since the trial court rendered the divorce judgment in that the wife “is no longer desirous of retaining custody and control of the parties’ minor children... .”

The wife filed two separate proceedings against the husband on June 24, 1980. The first sought to place the husband in contempt for failure to make payments on the Central Bank indebtedness, the wife alleging therein that she had paid twelve of such installments. The second petition requested the court to modify the October 4, 1979 judgment, her averments being that the judgment and the October joint petition to modify upon which the judgment was posed, arose out of the wife’s then depressed financial condition, that there has been a material change in the circumstances in that she is now gainfully employed, earns a good income, has remarried, enjoys a stable home with her husband and that it is to the children’s best interest that she be granted their custody. She further prayed that ownership of the furniture be re-invested in her.

A trial was had before the circuit court, but no report of the evidence was made. Pursuant to the provisions of A.R.A.P. rule 10(d), the husband, after he perfected his appeal, prepared a statement of the evidence and served a copy of it upon the wife’s attorney. No objections or amendments were ever made to the husband’s statement of the evidence, and, upon its being submitted to the trial court, it was approved by that court, and it is included in the record on appeal. Since the approved statement of the evidence was relatively brief, we copy herein all of its statements pertaining to all evidence as to the issues raised on appeal:

“At trial appellee was the first witness to testify. On direct examination she testified that she had initially agreed to enter the Joint Petition to Modify and to forfeit custody of the children due to financial problems. She testified that she was more fit to have custody because she was the mother. Further, she testified that she could not physically have any more children and, therefore, she wanted her children back. She also testified on direct examination that she had made 12 payments on the note to Central Bank discussed in the Rule Nisi, the collateral for which is a 1979 Thunderbird automobile.
“Appellee testified that the difficult financial situation which existed at the time she signed the Joint Petition to Modify was caused by the fact that she was unemployed. She further testified that she now lives in a two bedroom trailer with her present husband and that the two of them have a combined income of $1,800.00 per month.
“On cross-examination appellee admitted that she had actually quit her job at the time of the Joint Petition to Modify, stating that the reason therefor was that appellant had aggravated her at work. Further, appellee also admitted that the attorney who had prepared the Joint Petition to Modify was originally retained by her and she considered him her attorney. She further admitted that at the timed [sic] she signed the papers, her mother and her brothers were present and she was not forced to sign the papers at all. Further, she stated that at the time of her unemployment she was only unemployed for a week or two. At that time she and her present husband, who were married at that time, quit their employment voluntarily in order to seek employment in Florida and that they returned within a week and found jobs in Jefferson County. Further, on cross-examination, appellee admitted that appellant was a good father, took good care of the children, and had never refused her visitation rights. She also admitted to adulterous behavior on her part in that she came back and lived with the appellant for a while after she had married her present husband. In fact, appellee married her present husband 9 days after the divorce decree was entered between the parties.
“In regard to the note at Central Bank, appellee admitted on cross-examination that she had only made four payments on the Thunderbird rather than the 12 payments she testified to on direct examination. She admitted her brother, Michael Hagood, had bought the car from appellant before the parties were divorced. She also stated that this was agreed upon by both parties. Then she stated that in April of 1980, she and her brother had traded vehicles without appellant’s permission. She traded the 1975 GMC pickup truck which she had been awarded under the divorce decree for the 1979 Thunderbird automobile which had not been awarded to either party under the divorce decree. As stated before, her brother had purchased that automobile from appellant before the divorce.
“The second witness to testify was Michael Hagood, appellee’s brother. Ha-good testified that he had purchased the Thunderbird from appellant in April or May of 1979. He testified that he agreed to pay the note to Central Bank thereon, but he and appellant agreed the debt would be left in appellant’s name. Ha-good testified that he had made 12 payments on the note and that only 13 had been due since he had gained possession from appellant.
“The third and last witness to testify was Larry Abel, appellant. He testified that he was the father of the children of the marriage and that he was a fit and proper person to have custody of the children, that he has remarried and he and the minor children live with appellant’s new wife and her two minor children. He testified that they all live in a three bedroom home and the combined income of the parties is $2,600.00 per month. He testified that he never aggravated appel-lee on her job and did not in any way force her to sign the Joint Petition to Modify. Also, he testified that he had sold some of the items of furniture which he had been awarded under the Joint Petition to Modify.
“In regard to the debt to Central Bank, appellant stated that he had not given Hagood and appellee permission to trade vehicles. He stated that Hagood and ap-pellee had called him to ask permission to trade the vehicle prior to their doing so and appellant responded that before he would agree to such a transaction, Ha-good and appellee would have to gain title to the automobile and assume the outstanding debt owed on it.”

By its final judgment as subsequently amended, the trial court (1) changed custody of the two children from the husband to the wife, and (2) ordered the husband to return the furniture to the wife. (3) The court further determined that the Thunderbird automobile was property which had been acquired during the marriage of the parties, but that it had not been disposed of nor awarded in prior judgments. The trial court ordered the husband to pay the balance of the debt on that vehicle to Central Bank as previously ordered by the original divorce judgment, that he repay the wife for payments which she paid on that car’s indebtedness and that, when the debt was fully paid by the husband, he was granted the right to its possession by paying to the wife one-half of its then value. Other matters were adjudicated by that judgment which are not relevant to issues raised on this appeal. As to the items numbered (1), (2) and (3) above, the husband contends that the trial court erred. We agree.

Where no record is made of the evidence taken at a trial and the trial court approves a statement of the evidence pursuant to A.R.A.P. rule 10(d), we must accept that statement of the evidence as being true. Mobley v. Turner, 346 So.2d 427 (Ala.1977). Where the evidence is heard by the trial court, it is presumed that the trial court’s findings of fact are correct, and we can only reverse a trial court’s judgment when it is palpably wrong, is not supported by the evidence, or is manifestly unjust. Cotton States Mutual Insurance Co. v. Conner, 387 So.2d 125 (Ala.1980); 2A Ala. Digest, Appeal & Error Key 1010(2). Here, the statement of the evidence does not lend support to those three aspects of the judgment which are attacked on appeal.

(1)

The parent seeking to modify child custody must prove that a material change of circumstances has occurred since the rendition of the last child custody judgment. Barber v. Lay, 384 So.2d 1095 (Ala.Civ.App.1980), cert. denied, 384 So.2d 1096 (Ala.1980).

The October 1979 judgment was entered upon the joint petition of the parties. The statement of the evidence discloses that no fraud was practiced upon the wife in those proceedings. The change in circumstances stated in the joint petition of October 1979 that she no longer desired custody is at variance with her present allegations that that judgment resulted from her then poor financial condition. The wife’s present modification petition was based upon alleged changed circumstances consisting of her employment, remarriage and a stable home. However, it appears that she had actually remarried nine days after the original divorce judgment. She had been married to her present husband for almost four months when the October 1979 judgment was rendered. Furthermore, in October 1979 she had voluntarily quit her job and weis temporarily unemployed for only a week or two.

Remarriage and improved financial conditions are circumstances to be considered in change of custody actions, but those factors are not controlling in themselves, even if they are considered to be present in this ease. Porter v. Templeton, 368 So.2d 35 (Ala.Civ.App.1979). The fact that a mother has reformed and has married a fine man, who is able to care for her and her children, does not warrant the modification of a custody judgment. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151 (1959); Pezent v. Nelson, 52 Ala.App. 9, 288 So.2d 792 (1974). Her testimony that she felt that she was the most fit parent to have custody since she is their mother cannot be the foundation for a change in custody, for the tender years presumption that the mother is the preferred custodial parent of young children has been abolished. De-vine v. Devine, 398 So.2d 686 (Ala.1981). She did not fault the husband as a father but, to the contrary, admitted that he was a good father and took good care of the children.

The facts as contained in the statement of the evidence inadequately justified any change of custody of the children from the father to the mother.

(2)

“A court cannot modify a property settlement, except to correct clerical errors, after a lapse of thirty days from the rendition and entry of a final judgment approving such settlement. A divorce judgment [here the October 4,1979 modification judgment] dividing property between the parties is not subject to being modified as to such property division on account of changed conditions.... (Citations omitted.)”

Culverhouse v. Culverhouse, 389 So.2d 937, 938 (Ala.Civ.App.1980). In view of that provision of law and because of the total absence of any evidence in the record concerning the furniture, the court exceeded its authority in requiring the husband to return the furniture to the wife.

(3)

By the wife’s own admission at the trial, the Thunderbird automobile had been disposed of through its sale to the wife’s brother (Hagood) prior to the divorce. She had consented to that sale. In April of 1980, the wife and Hagood decided to trade vehicles. Prior to doing so, they contacted the husband, who refused to approve the transaction unless the note to Central Bank, as well as the title to the vehicle, were taken out of his name. Nevertheless, the wife exchanged with her brother her pickup truck for the Thunderbird. In effect, they traded not only vehicles but apparently also the debts against the vehicles, and the wife became the owner of the Thunderbird as well as assuming liability to the Central Bank for the balance due upon that debt upon that ear. She had previously been ordered to be responsible for the debt against the truck.

At the time of the divorce, Hagood was the equitable owner of the Thunderbird, subject to the debt against it with Central Bank, which Hagood had agreed with the husband to assume and pay. As between Hagood and the husband, Hagood was primarily responsible for that debt. If Ha-goocl did not pay it, as between the husband and the wife, the husband would then have to make the payments. In substance, the husband was holding the wife harmless from any liability on the car note if her brother defaulted in his payments. When the wife traded vehicles and debts, she replaced Hagood in the pecking order on that totem pole, and she then became responsible for the debt as between the husband and the wife. Just because she traded for the Thunderbird is no just reason to now require the husband to make the car payments which her seller, Hagood, had agreed with the husband to assume and pay.

Accordingly, the trial court could not require the husband to reimburse the wife for any such car payments which she might have made. Neither could it require him to pay her installments upon the car as they fall due in the future.

As to the three aspects of the judgment previously discussed, we reverse and remand this case to the learned trial court where a judgment shall be rendered which is consistent with this opinion.

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

REVERSED AND REMANDED.

All the Judges concur.


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    Daniel KEENON, Jr. v. FIRST NATIONAL BANK OF BIRMINGHAM.
    Civ. 2631.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    Demetrius C. Newton, Birmingham, for appellant.
    Ralph B. Tate and Ann McMahan of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The trial court granted the motion for a summary judgment of the First National Bank of Birmingham (bank) and the plaintiff (Mr. Keenon) appeals.

On October 9, 1978, Mr. Keenon filed his complaint against the bank alleging that the bank was the executor of the estate of Marion K. Bradford, deceased; that, in the distribution of the assets of that estate Mr. Keenon was awarded certain property in Chicago; and that the bank had negligently failed to pay the taxes on that property to Mr. Keenon’s injury and damage.

The bank’s answer included the defense of the statute of limitations.

After the hearing upon the bank’s petition for a final settlement of Mrs. Bradford’s estate, the Probate Court of Jefferson County, in its February 25, 1976 judgment of final settlement, ordered the bank to transfer to Mr. Keenon a note and purchase money mortgage on the Chicago property. A few weeks later, Mr. Keenon receipted the bank for the transfer and assignment of the note and mortgage. In July 1976 Mr. Keenon instituted foreclosure proceedings against the Chicago mortgagees as to the Chicago property and he became the purchaser at the foreclosure sale on November 22, 1976.

On August 13, 1976, a commitment for title insurance was issued to Mr. Keenon by Chicago Title Insurance Company. This instrument disclosed delinquent or unpaid taxes, interest, penalty and costs against the Chicago property for the years 1969, 1972,1973 and 1974. At the hearing on the bank’s motion for a summary judgment, Mr. Keenon personally testified. In answer to questions propounded to him by his counsel as well as by the bank’s attorney, he unequivocally stated that he first learned about the back taxes on August 13, 1976.

Mr. Keenon further testified that on January 4, 1977, he and his Chicago attorney proceeded to the County Clerk’s office in Chicago to ascertain the amount of taxes past due upon the Chicago property and that he then received from that office a written itemized list of the delinquent taxes, and, that on that date, January 4, 1977, he knew that the taxes had not been paid.

Near the conclusion of that summary judgment hearing, the court engaged in the following exchange with Mr. Keenon:

The Court: 2-25-76, Probate Decree?
Mr. Keenon: Right
The Court: 4r-5-76, Culver gives you the documents?
Mr. Keenon: .Yes
The Court: 8-13-76, title policy?
Mr. Tate: Showing the taxes.
The Court: Showing the taxes.
Mr. Tate: And the City of Chicago suit.
The Court: Is that right?
Mr. Keenon: Right
The Court: 1-4-77, went to the Courthouse with lawyer in Chicago, that the next winter?
Mr. Keenon: Yes.

The primary issue for determination regarding the pleaded statute of limitations defense is whether Mr. Keenon brought the action within one year or within one year of the discovery. Code 1975, §§ 6-2-3, 6-2-39(a)(6).

A motion for a summary judgment is one of the procedural vehicles whereby the issue of an action being barred by the statute of limitations may be raised and determined in a proper case. Spears v. Short, 380 So.2d 291 (Ala.1980); Engel Mortgage Co. v. Triple K. Lumber Co., 56 Ala.App. 337, 321 So.2d 679 (1975).

The complaint alleged negligence. The action sounded in tort and the statute of limitations of one year is applicable. Blythe v. Enslen, 203 Ala. 692, 85 So. 1 (1919). However, even if the complaint had been based upon fraud, Mr. Keenon would have had only one year from its discovery within which to file his action. § 6-2-3, Code 1975.

It is now immaterial whether Mr. Keenon first discovered the existence of the delinquent property taxes in August 1976, after he examined the title commitment document, or whether his discovery thereof occurred on January 4, 1977, when he personally went to the County Clerk’s office in Chicago accompanied by his Chicago attorney and then and there received a complete and detailed list of the delinquent taxes against the Chicago property. In either admitted event, the statute of limitations of one year had run prior to the filing of the present civil action on October 9, 1978.

We should not be construed as holding, by implication, that a cause of action arose in this case for statute of limitation purposes only as of the date of discovery. We do not decide when the statute began to run. The date of the alleged negligence or injury therefrom, of course, happened prior to the date of discovery, and we merely decide that, even if the most recent date applies, which happens to be the discovery date, Mr. Keenon’s action is barred.

The trial court had no proper alternative but to grant the bank’s motion for a summary judgment because the one-year statute of limitations constituted a bar to his civil action. Our only recourse is to affirm that judgment.

The remaining stated issue is pretermit-ted.

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

AFFIRMED.

All the Judges concur.


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    Calvin C. AGAN v. UNION FOUNDRY COMPANY, INC. and Mead Corporation.
    Civ. 2634.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    William E. McGriff, II, Anniston, for appellant.
    Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case. The employee contends that, after he had been seriously burned by an accident arising out of his job and after he had been released by his physician to commence light work, the payment of his regular wages by his employer for the performance of alleged lighter work constituted “compensation” which tolled the running of the statute of limitations under § 25-5-80 of the Code (1975). In part, that code section provides that the limitations shall not be effective until the expiration of one year from the time the last compensation payment was made to the employee.

Here, the claim was clearly barred by the normal time limitation within which such a civil action must be brought, and this action cannot be maintained unless the statute was so tolled as argued by the employee. Both parties rely upon Head v. Triangle Construction Company, 274 Ala. 519, 150 So.2d 389 (1963), wherein Chief Justice Livingston spoke for the court as follows:

The general rule seems to be that when an injured employee receives the same wage rate for lighter work after returning to his job, it is “compensation” if the employer was aware, or should have been aware, that such wages constituted compensation. .. .
We think the correct rule for deciding the question at hand involves the issues of (1) whether the employer was aware, or should have been aware, that such payments were compensation, (2) whether the payments had the effect of recognition of the employee’s claim, and (3) whether or not the evidence indicates that the employer paid for more than he received.
The evidence in this case falls short of proving that the employee’s work was not worth the wages that were paid simply because the employee was put on a different and lighter work when he returned and does not automatically show that a portion of the wages were unearned . There is no evidence that the employer could have gotten the lighter work done for less. The effect of the lower court’s finding is that this contention of appellant was not sustained by the evidence.

In this case, the evidence conflicted as to some areas pertaining to the issue, but there was an abundance of testimony from former management officials of Mead, the employer, which clearly denied that Mead was, or should have been, aware that the wages paid to Mr. Agan were compensation, or that the wages paid to him were a recognition of his compensation claim, or that Mead paid more in wages to Mr. Agan than was due to be paid for the work performed, or that anything was done, said or promised by anyone on behalf of Mead to Mr. Agan which in any manner defrauded that employee as to any claim he might have had to workmen’s compensation.

After a trial before the circuit court, that court determined that the employee was barred by the statute of limitations from bringing this action. On appeal of workmen’s compensation cases by means of certiorari, the scope of review is limited to questions of law and to an examination of the evidence to determine if there is any legal evidence to support the findings of the trial court; and, if such supportive evidence was before the trial court, this court is required to affirm the trial court’s judgment insofar as factual matters are concerned. Falls v. Warrior Drilling & Engineering Co., 399 So.2d 854 (Ala.Civ.App.1981). Ample testimony upheld the trial court’s findings, so no merit can attach to the argument of the employee upon the merits of the case.

While it is preferable in this type case that all factual findings by trial courts be expressly detailed and specific, the finding here by the trial court as to the bar of the statute of limitations impliedly ascertained that the statute was not tolled. “Having so found, that was properly the end of the lawsuit, and there was no reason why the court should have made findings on issues that had no bearing on the outcome ...” such as whether the employee was disabled and the extent thereof. Hinkle v. Schott Industries, Inc., 53 Ala.App. 412, 301 So.2d 174 (1974).

We affirm.

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

Affirmed.

All the Judges concur.


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    LIBERTY LOAN CORPORATION OF GADSDEN v. Thomas G. McCASKEY and Mary E. McCaskey.
    Civ. 2664.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    Thomas M. Goggans of Piel, Bright & Goggans, Montgomery, for appellant.
    Donald R. Harrison, Montgomery, for ap-pellees.
   BRADLEY, Judge.

Defendant appeals from a judgment in favor of plaintiffs in a case involving the repossession of an automobile.

Thomas G. and Mary E. McCaskey filed an action against Liberty Loan Corporation of Gadsden (hereafter Liberty Loan) alleging that Liberty Loan had unlawfully repossessed a motor vehicle given as security for a loan and had unlawfully converted the vehicle to its own use. It was alleged also that Liberty Loan had committed a trespass in taking possession of the car in question. After a trial on these allegations, the jury returned a verdict for $5,000 in favor of plaintiffs. They also returned a verdict in favor of plaintiffs on defendant’s counterclaim. Liberty Loan appeals from the verdict and judgment entered thereon.

The dispositive issue argued in brief is whether the verdict and judgment are supported by the evidence. In Alabama only rulings of the trial court can be reviewed by the appellate court. Dennis v. Scarborough, 372 So.2d 357 (Ala.Civ.App.1979); Rule 4(a)(3), A.R.A.P. And the weight of the evidence to support a jury verdict can be raised only by a post-judgment motion. Woods v. Westbrook, 356 So.2d 153 (Ala.1978). Appellant did not file a motion for new trial or other post-judgment motion in this case. Consequently, there is no ruling of the trial court presented which will allow this court to consider whether the weight of the evidence supports the jury’s verdict.

Appellant also argues that the trial court erred in denying its motion for directed verdict as it pertains to the right to repossess appellees’ automobile. Where there is conflicting evidence for the jury to resolve, a directed verdict should not be granted. Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App. 1976). In the case at bar the evidence relating to the alleged default of appellees is in conflict. Therefore the trial court properly overruled appellant’s motion for directed verdict.

Appellees’ motion to dismiss the appeal and for damages is denied.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    TUSKEGEE WHOLESALE GROCERY COMPANY, INC. v. Robert B. THOMPSON.
    Civ. 2696.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    William M. Russell, Jr., Tuskegee, for appellant.
    Fred D. Gray of Gray, Seay & Langford, Tuskegee, for appellee.
   BRADLEY, Judge.

This is an appeal from a verdict in favor of defendant on a suit for nonpayment of an open account.

The facts of this case are fairly complicated, but we will state them briefly. Plaintiff, Tuskegee Wholesale Grocery Company, filed suit in the District Court of Macon County alleging that defendant, Robert Thompson, was liable to them on an open account of the Green Fork Grocery Store. Plaintiff claims that defendant came to plaintiff’s place of business and requested a conference with James Henson, plaintiff’s business manager. The facts indicated that defendant’s wife had purchased the Green Fork store for her nephew, Richard Perry. Henson testified that defendant asked him to sell Perry groceries on open account and promised to pay for them at any time. Henson agreed to do this. Defendant claims that no meeting or conversation ever occurred, and the he never agreed to be responsible for the Green Fork groceries.

The facts further reveal that Perry began purchasing groceries on open account. Henson stated that he kept defendant apprised of the balance of the account. As of April 7, 1978, Green Fork still owed plaintiff $4,536.42 on its open account with plaintiff. That same month, Henson telephoned defendant requesting him to settle the account. Defendant stated that he did not owe plaintiff anything, that he was tired of being harassed, and that he did not wish to talk with Henson about the account anymore. Perry testified that he purchased groceries for Green Fork on his own behalf and that he “operated” the store.

On April 13, 1979 Perry filed a voluntary petition for bankruptcy with the United States District Court for the Middle District of Alabama. On his petition Perry listed plaintiff as a creditor. On August 7, 1980 Perry was discharged from liability on this debt.

On May 8,1979 plaintiff’s attorney wrote the defendant trying to collect this debt. Defendant’s attorney informed plaintiff’s counsel that defendant had not authorized plaintiff to supply groceries to Green Fork. The district court found in favor of the defendant. As a result plaintiff appealed to the circuit Court of Macon County for a trial de novo.

The case proceeded to trial, and the jury returned a verdict in favor of the defendant. Plaintiff filed a motion for new trial on October 8, 1980 contending, inter alia, that the evidence adduced at trial was insufficient to support the jury’s verdict and that the court erred by allowing defendant to introduce evidence concerning Perry’s bankruptcy. The trial court denied this motion and as a result plaintiff appeals to this court.

Plaintiff, in this appeal, has raised two issues. First it is contended that the jury verdict is against the clear weight of the evidence. Second plaintiff claims the trial court erred in permitting defendant, over plaintiff’s objection, to introduce evidence of Richard Perry’s bankruptcy on the ground that such evidence was irrelevant and prejudicial.

It is axiomatic that the granting or refusing a motion for a new trial is within the sound discretion of the trial court and will not be overturned on appeal unless palpably and clearly wrong. Robertson Banking Co. v. Ebersole, 331 So.2d 278 (Ala.1976). On appeal, an appellant cannot raise a question of the sufficiency of the evidence to support the jury’s verdict or argue that such verdict is against the great weight of evidence unless he raised these issues in a motion for a new trial. Broughton v. Kilpatrick, 362 So.2d 865 (Ala.1978); State v. Long, 344 So.2d 754 (Ala.1977). The plaintiff alleged in his motion for a new trial that the evidence was insufficient to support a verdict in fav'or of the defendant, and as such we may properly consider the merits of its contention. In reviewing the evidence, we cannot find that the trial court abused its discretion or committed plain and palpable error in declining to grant the motion.

Plaintiff did produce testimony from several witnesses which tended to prove that defendant had contracted with plaintiff to purchase groceries on an open account, that Perry merely worked for defendant and his wife, and that the groceries were paid for by checks drawn on a checking account in the name of defendant and his wife. Defendant denied that he had set up such an open account with plaintiff, and presented testimony by Perry wherein Perry stated that he alone wrote checks on the Green Fork account. From the evidence we cannot find that the jury clearly erred in holding in favor of defendant. The trial judge, therefore, did not abuse his discretion in denying plaintiff’s motion for a new trial.

We now evaluate the merits of plaintiff’s argument that the trial court committed reversible error in permitting defendant to introduce at trial, over plaintiff’s timely objection, evidence that Perry had bankrupted on debts which he purportedly owed plaintiff. Plaintiff’s attorney repeatedly objected on the grounds that such evidence was irrelevant and prejudicial. The trial court’s overruling of these objections which were general in nature, see Dixie Industrial Co. v. Bank of Wetumpka, 207 Ala. 293, 92 So. 786 (1922), cannot be considered erroneous unless the evidence admitted was illegal. C. Gamble, McElroy’s Alabama Evidence § 426.01(10) (3d ed.1977). Plaintiff has not cited any Alabama decision holding evidence of a witness’s bankruptcy illegal. Therefore we are unable to reverse the decision to admit this evidence on the basis of these general objections. Furthermore, the evidence was certainly relevant since it tended to prove who was contractually liable for the payment of groceries purchased on Green Fork’s open account. See generally Taylor v. Mason, 390 So.2d 1046 (Ala.1980).

The judgment of the circuit court is affirmed.

AFFIRMED.

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