author: WATKINS, Judge.

text:
    In the Matter of the Succession of Ted F. DUNHAM, Sr.
    No. 14489.
    Court of Appeal of Louisiana, First Circuit.
    May 12, 1981.

      Victor A. Sachse, III, Baton Route, for Ted Dunham, Jr.
    J. Huntington Odom and Ashton L. Stewart, Baton Rouge, for Katherine Dunham.
    James Don Thomas, II, Baton Rouge, for D. Dunham.
    Davis A. Gueymard, Robert A. Hawthorne, Jr. and Warren L. Mengis, Baton Rouge, for provisional trustees.
    Frank M. Coates, Jr., Baton Rouge, for Louisiana National Bank of Baton Rouge, as trustee.
    Thomas H. Benton, Benton, Benton & Benton, Baton Rouge, for Richard Dunham.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Richard E. Dunham has applied for supervisory writs from the lower court’s refusal to remove the Louisiana National Bank, Baton Rouge, Louisiana, as trustee for trusts established under the will of the late Ted F. Dunham. Under that will, Ted F. Dunham established trusts for his two sons, Richard and Ted, Jr., and for six grandchildren. We granted an alternative writ of mandamus commanding the trial court to remove the said bank as trustee of that trust of which Richard E. Dunham is beneficiary, or to show cause why the bank should not be removed. Upon review of the trial court’s response to the alternative writ, which attaches pleadings not contained in the application for writs, we conclude writs should be denied.

The Fidelity National bank, Baton Rouge, was named original trustee of all eight trusts, together with Mrs. Katharine 0. Dunham and Mr. Bill Alexander. The trial court accepted the refusal of the Fidelity National Bank to serve as trustee and named the Louisiana National Bank as trustee in its place and stead. The Louisiana National Bank has never accepted the trust. Mrs. Dunham and Mr. Alexander filed an application for a partition of the effects of the Succession of Ted F. Dunham. Provisional trustees were appointed for each of the two trusts established for Mr. Dunham’s sons and a provisional trustee was appointed for the trusts for the grandchildren, for purposes of the litigation involving partition. The provisional trustees then filed a joint petition for partition. The trial court thereafter removed Mrs. Dunham and Mr. Alexander as trustees of the trusts for the two sons, and, on appeal, we removed Mrs. Dunham and Mr. Alexander as trustees of all eight trusts. Succession of Dunham, 393 So.2d 438 (La.App. 1st Cir. 1980). The Louisiana Supreme court has granted writs, 397 So.2d 802, and the matter is still pending.

The Louisiana National Bank was appointed trustee on June 6, 1978. The succession proceeding was appealed, in the above-mentioned appeal to this Court, which is now before the Louisiana Supreme Court, writs having been granted, as we have stated. Thus, none of the legatees has been sent into possession. Until the trustee as legatee is sent into possession of the trust corpus, the function of a trustee is necessarily limited. He is under a duty to “take reasonable steps to take, keep control of, and preserve the trust property.” LSA-R.S. 9:2091. As we found in Succession of Dunham, supra, the duty to take the trust property includes the duty to demand to be sent into possession with all possible dispatch. The Louisiana National Bank has not taken action to be sent into possession.

However, we find that the Louisiana National Bank was prevented from demanding to be sent into possession because that function was to be performed by the provisional trustees. We see in the pleadings attached to the trial court’s brief in the matter that the provisional trustees requested a clarification of their duties, and that the trial court issued an order dated July 19, 1978, containing such a clarification, the pertinent portions of which read as follows:

“These provisional trustees are to function primarily as attorneys in defending and protecting the interests of the trusts as separate entities. They do not represent individual beneficiaries or trustees and need not obtain the consent of the beneficiaries or trustees of their respective trusts in taking steps in this litigation to protect and defend such trusts.
“The provisional trustees have not been sent into possession of any assets and are not expected to take possession of and administer assets, although they are expected to urge that the trusts be funded. At such time as such trusts are funded or receive assets, other trustees will be appointed to receive and administer such assets.”

As the provisional trustees were expected to urge that the trusts be funded, and did so urge in petitioning for partition of the succession assets, the Louisiana National Bank was precluded from seeking to be sent into possession as trustee. Although a trustee cannot delay its acceptance of a trust to commit a breach of trust, as we noted in Succession of Dunham, supra, and the Louisiana National Bank could not so delay its acceptance, in the present instance the Louisiana National Bank committed no breach of trust, because the provisional trustees were charged with urging that the trusts be funded and did so urge. We note that the order of July 19,1978, was approved by Richard E. Dunham’s attorneys, so for that further reason he has no valid complaint.

Accordingly, the alternative writs issued herein are recalled and vacated, and writs are denied, at applicant, Richard E. Dun-ham’s cost.

WRITS DENIED.


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    STAPLE COTTON SERVICES ASSOCIATION and Home Insurance Company v. Jessie RUSSELL.
    No. 52636.
    Supreme Court of Mississippi.
    May 27, 1981.

      Joseph T. Wilkins, III, McCoy, Wilkins, Noblin & Anderson, Jackson, for appellant.
    Robert L. Crook, Ruleville, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This is an appeal by the employer Staple Cotton Services Association and the insurance carrier Home Insurance Company from a judgment of the Circuit Court of Washington County affirming the order of the Mississippi Workmen’s Compensation Commission awarding claimant Jessie Russell temporary total disability benefits at the rate of $84.00 per week beginning January 8, 1977, until March 21, 1977, and permanent partial disability benefits at the rate of $25.00 a week beginning March 21, 1977, and continuing thereafter for a period of not to exceed 450 weeks, plus medical expenses as provided by Mississippi Code Annotated § 71-3-15 (1972), and sustaining a motion of claimant for a ten percent penalty as provided by Mississippi Code Annotated § 71-3-37 (1972) for failure to make prompt payment of installments of permanent partial disability benefits when due. The full commission had in turn by its order affirmed the previous order of the administrative law judge. The claimant Russell has cross-appealed from the denial to him of total disability benefits under the Act.

We affirm on direct and cross appeals.

The claimant appellee Russell sustained a compensable injury on January 8, 1977, while employed by Staple Cotton. Russell at the time of his injury had been employed with the company longer than six months and was considered a permanent employee. Employee benefits were in effect with the company, embodied in a handbook, which contained the following provisions:

“2. Sick Leave. Permanent employees will be paid full salary during the first 120 consecutive days of absence from work due to sickness, maternity, or injury; one-half salary will be paid for a second 90-day period. After 210 consecutive days of absence, salary will be discontinued.
“Assistance will be provided, however, in obtaining disability benefits through Social Security and the Pension and Retirement Plan, if applicable.
“In the event an employee exercises his rights to sick leave the employer reserves the authority »to request a physician’s statement as to the condition of the individual.”
******
“5. Workman’s Compensation. Full insurance is carried, as required by the Workman’s Compensation laws of the State of Mississippi, to cover loss of time and expenses resulting from an injury or illness incurred while performing duties connected with employment. Notice of such accident or illness must be given to the Payroll Department within 12 hours.”

Following his injury Russell was paid under the company plan $126.08 per week through June 18, 1977, with the exception of a deduction in the week’s payroll of May 28, wherein he was paid $104.02, and finally, on June 25, he was paid $26.79. He was terminated June 20, 1977.

On May 3, 1977, the insurance carrier wrote claimant’s attorney at the time, Carver A. Randle, enclosing a report of an examining physician to the effect Russell had reached maximum medical recovery, had no medical impairment, and could pursue any type of work of his choice. Also enclosed in the letter for Russell’s signature were three copies of Mississippi Workmen’s Compensation Commission Form B-31, the Final Report and Settlement Receipt, with the request that Russell sign all three copies, retain one copy, and return the original and one copy to the insurance carrier for filing with the Commission.

The carrier received no response to this letter, and on June 6, 1977, wrote the Commission a letter in reference to this cause, enclosing three copies of Form B-31, notifying the Commission forms had been previously sent to Russell for his signature, and he failed to return them. The letter requested the Commission file and return two carbon copies to the office of the insurance carrier.

On June 16, 1977, the insurance carrier wrote Russell in care of his attorney Ran-dle, enclosing a copy of Form B-31 and asking him to note that the form was received in the Commission offices on June 9, 1977. The letter concluded with the sentence: “We consider this matter closed at this time.”

On June 16, 1978, Russell filed with the Commission Form B-5 and B-ll, styled “Application of Claimant for Workmen’s Compensation Benefits.”

In their answer filed July 24, 1978, the employer and carrier as an affirmative defense pled the one year statute of limitations following transmittal of the Form B-31, and also filed a Plea in Bar setting forth the above facts relative to the mailing of the Form B-31, and claiming the statute began to run on May 3, or at least on June 6,1977, and therefore the motion to controvert filed June 16,1978, was barred by § 21 of the Mississippi Workmen’s Compensation Act, Mississippi Code Annotated § 71-3-53 (1972).

The first assignment of error on this appeal is the claimed error of the circuit court and commission in not dismissing this case because it was barred by this one year statute.

We again hold that the statute did not begin to run until claimant Russell was advised that the Form B-31 had been filed with the commission. This began with the letter to Russell dated June 16,1977, and he had one full year after this date within which to file his claim with the commission.

This Court has already spoken on the precise question raised by appellants, but because there has been one change in Rule B-17 of the commission wherein the former requirement to mail the notice to claimant by certified mail has been deleted, we cover the matter again.

Two code sections and a commission rule must be considered together.

Mississippi Code Annotated § 71-3-53 (1972) provides as follows:

“Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, ...”

Mississippi Code Annotated § 71-3-37(7) provides as follows:

“(7) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding one hundred dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.

Finally, Commission Rule B-17 reads as follows:

“CLOSING CASE. The requirement for the filing of Commission Form B-31, Final Report and Settlement Receipt, shall be deemed to have been met upon receipt by the Commission of such form, signed by claimant, provided, however, that the form so filed is in accordance with the requirements of Section 13(g) of the Act and contains the information specified therein. In the event Form B-31 is not signed by claimant, the unsigned form shall be filed with the Commission with notice of such filing given to the claimant. Should the original or any subsequent Form B-31 be filed that does not furnish all medical or other information required, another form B-31 containing complete information shall be filed as soon as possible thereafter as provided herein.”

Dunn’s Mississippi Workmen’s Compensation 2d ed. § 256 (1978 Supp.) clearly sets forth the conditions precedent in order to start the running of the one year statute of limitations:

“One requirement of the employer is that a notice be filed with the commission stating that final payment has been made, the amount paid and certain other information identifying the case. Other procedural requirements are noted below.
“Provision is made that no case shall be closed without giving notice to all parties interested and without giving to all parties an opportunity to be heard. But when the required form is signed by the claimant and filed with the Commission, no formal hearing or order is necessary to start the running of the time limitation and no other or further notice need be given the claimant.
“Where the required form is presented to the claimant and he neglects or refuses to sign the receipt, the employer or carrier may state the failure or refusal as a reason and the filing is effective without the claimant’s signature, and the running of time under the limitation section of the Act will begin; provided, however, that the employee is given due notice that the unsigned form has been actually filed with the Commission. Two absolute requirements have been emphasized as essential to compliance with due process of law: (1) the employee must be given an opportunity to sign the form before it is filed and (2) notice of the filing of the form without the employee’s signature must be given to the employee not before but after the notice has been filed with the Commission. No specific form for proof of notice is required. A distinction is made as between a form that is signed by the claimant and one that is unsigned. If the claimant signs the form, no other notice is required.”

It is thus clear, as this Court stated in McLemore v. Jackson Tile Mfg. Co., 252 So.2d 781 (Miss.1971), the employee must first be given an opportunity under the Commission Rule to sign the required form. If he fails or refuses to sign the form when submitted to him, the employer and carrier then have the duty to file an unsigned form with the commission. Thereafter, to start the statute running, “notice of such filing” must be given to the claimant. It is no longer necessary, however, under this rule that the notice be mailed certified mail to the claimant.

In this case, notice of the filing was not given to the claimant until the letter dated June 16, 1977. Both the affirmative defense and the plea in bar pleading this one year statute of limitations were therefore properly overruled by the commission and the circuit judge.

The employer and carrier also assign as error the failure of the commission and circuit judge to allow them credit on workmen’s compensation benefits of the salary payments made by the employer following January 8, 1977. This contention was covered in Pet, Incorporated, Dairy Division v. Roberson, 329 So.2d 516 (Miss.1976), in which we held that sick pay received by an employee based upon past service with the company rather than because of injury sustained while on the job is no different than vacation pay, and is a benefit accumulated on the basis of past service. Pay received by an employee under such circumstances should not be deducted from his workmen’s compensation benefits. It is clear in this case the pay Russell received following January 8, 1977, was based on past service rather than on the injury as such, and therefore the commission and circuit judge were correct in refusing to deduct the workmen’s compensation benefits by the amount paid to him under the Staple Cotton’s company plan to pay sick or injured employees for a period of time following sickness or disability. See Larson, Workmen’s Compensation, Volume 2 § 57.46 (1981).

For the reasons stated the direct appeal should be affirmed.

Claimant urges on cross appeal the administrative law judge, the commission and the circuit judge erred in not holding his total disability was not causally related to his injury on January 8,1977, and in failing to hold him totally disabled as a result of this injury.

The order of the administrative law judge is dated January 28, 1980. The employer and carrier filed a petition for review February 15, 1980. On June 16, 1980, the claimant filed with the commission a “Response to Petition for Review of Employer and Carrier and Cross Appeal of Claimant” (emphasis added) The order of the full commission affirming the administrative law judge is dated June 24, 1980. On July 2, 1980, the employer and carrier filed a petition for appeal to the circuit court, and on July 9 the claimant filed a notice of cross appeal to the circuit court. The claimant has also properly filed a cross appeal with this Court, and insofar as his cross appeal to this court, has in all respects complied with our Rules.

The employer and carrier argue that the cross appeal from the administrative law judge was not timely filed, and is therefore barred under the statute and commission rules.

Mississippi Code Annotated § 71-3-47 (1972) provides in part:

“Upon the conclusion of any such hearing, the commission’s representative shall make or deny an award, and file the decision in the office of the commission. Immediately after such filing, a notice of decision shall be sent to all interested parties. This decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed."

Rule B-10 of the commission reads as follows:

“REVIEW HEARINGS. In all cases where either party desires a review before the full Commission from the decision rendered at the initial hearing, the party desiring the review shall within twenty days of the date of said decision file with the Secretary of the Commission a written request or petition for review before the full Commission, and certify that copies of the request for review have been filed with the opposing party; provided, however, that failure to file such certification shall not be a bar to the review requested.”

It can be observed there is no provision in either the statute or commission rules for a cross appeal from a decision of the administrative law judge. The code section and rule quoted clearly apply only to a direct appeal.

Since there is no statutory requirement as to a cross appeal the commission is free to adopt whatever rule it deems feasible on cross appeals by a party, and having apparently promulgated none thus far was clearly within its authority in considering the cross appeal, even though filed considerably more than twenty days following the decision of the administrative law judge. There was no legal error committed by the commission in considering the claimant’s cross appeal.

It would appear the commission in the exercise of its statutory responsibilities should adopt some reasonable rule as to cross appeals.

Turning to the merits of the cross appeal, the record contains substantia] competent and credible evidence supporting the finding of the administrative law judge and the full commission relative to the claimant’s disability, and it is well settled neither the circuit judge nor this court has any right to reverse such finding. Shippers Exp. v. Chapman, 364 So.2d 1097 (Miss.1978); Charles N. Clark Associates Ltd. v. Robinson’s Dependents, 357 So.2d 924 (Miss.1978); Holloway v. Prassell Enterprises, Inc., 348 So.2d 771 (Miss.1977); Hemphill Drug Co. v. Mann, 274 So.2d 117 (Miss.1973).

The order is therefore affirmed on cross appeal.

AFFIRMED ON DIRECT AND CROSS APPEALS.

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


author: SHORES, Justice.

text:
    Henry Lewis RAY and Patricia Reese Ray v. Dean H. MONTGOMERY et al.
    79-434.
    Supreme Court of Alabama.
    Dec. 24, 1980.

      J. Paul Whitehurst and Walter B. Henley of Henley, Clarke & Watson, Northport, for appellants.
    Carl W. Albright, Jr. of Rosen, Wright, Harwood, Albright & Cook, Tuscaloosa, for appellees M. C. Montgomery and Dean H. Montgomery.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee Guaranty Pest Control, Inc.
   SHORES, Justice.

This is an appeal by plaintiffs, Henry L. Ray and Patricia R. Ray, purchasers of a used residence with termite damage, from a final judgment in favor of defendants entered on the following motions: A motion to dismiss of defendants Minniesota Bailey and Harold Knight, as administrator ad li-tem for E. W. Bailey, from whom the Mont-gomerys purchased the residence, and the motions for summary judgment of defendants Dean H. Montgomery and M. C. Montgomery, who sold the residence to the Rays, and of defendant Guaranty Pest Control, issuers of a termite control service contract and bond to the Baileys. We affirm the trial court’s decision.

In October, 1977, the Baileys sold the house and three acres in Coker, Alabama, to the Montgomerys, who then sold it to the Rays in November, 1977. Mrs. Dean Montgomery was a licensed real estate salesperson during this period.

In 1973, the Baileys contracted with Guaranty Pest Control for termite extermination. The termite treatment bond was renewed, and the house treated yearly until 1977.

The Rays alleged that, at the time of the November, 1977, sale, the Montgomerys had represented that they had been in the attic and under the house and that the house was supported by hewn pine timbers, had good support, was “a nice house,” was solid and was in good condition. The contract of sale between the Montgomerys and the Rays, and signed by the Rays, contained provisions that the sellers made “no warranties other than as to title and [have] no liability for any defects or repairs” and that the “house [was] sold in ‘as is’ condition.” Shortly after the Rays moved in, they discovered termite damage to the substructure of the house.

The Rays filed suit against the Montgom-erys, the Baileys, and Guaranty Pest Control. Mr. Bailey died while the suit was pending, and an administrator ad litem was appointed. The Rays in their complaint and on appeal have asserted the following theories of liability: (1) Fraud and misrepresentation by the Montgomerys and the Baileys; (2) breach by the Montgomerys of the duty to disclose termite damage to the Rays as purchasers; (3) fraud by Guaranty Pest Control in failing to disclose termite damage to the Baileys and breach of its service contract by Guaranty Pest Control in failing to adequately treat the house and consequent liability to the Rays as third-party beneficiaries of that contract. We find no merit in any of these theories and, therefore, affirm the trial court’s judgment.

Summary judgment shall be rendered if the pleadings, depositions, interrogatory answers, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), ARCP. The burden of proof is on the movant to establish the absence of any issue of a material fact. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). If there is a scintilla of evidence supporting the position of the party against whom the motion is made, summary judgment cannot be granted. Rule 56(c), ARCP, Committee Comments; Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). The court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the non-moving party. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). However, to defeat a motion for summary judgment, the non-moving party must present facts that are properly admissible in evidence. Morris v. Morris, 366 So.2d 676 (Ala.1978).

The Rays rely on the statements by the Montgomerys that the house was solidly supported in order to challenge the granting of summary judgment and to support their theories of misrepresentation by the Montgomerys. However, the statement relied on does not present a scintilla of evidence to support a claim based on misrepresentation nor is it admissible in support of the contract theory under the parol evidence rule as it contradicts the written contract which contained an “as is” provision. On the latter point the appellant relies on Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So.2d 431 (Ala.1979), to allow admission of the parol evidence in spite of the “as is” cause. In that clause, however, the parties both agreed to the inclusion of the clause for a single purpose, and both acknowledged that the writing was not a true and complete expression of their agreement. Such is not the case here.

The statement is not admissible to show that the execution of the instrument was procured by fraud since it is itself insufficient evidence of fraud. The representations are statements of the seller’s opinion and not of fact. Such a statement is actionable only if it is a misrepresentation of material fact acted upon by the party to whom it was made. Such is not the case here.

Nor does any fraud exist by reason of the purported confidential relationship between the Rays and the Montgomer-ys. There is no duty to disclose facts when information is not requested, and mere silence does not constitute fraud in the absence of a confidential relationship. Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969). There is no evidence of any fraud by the Baileys or Guaranty Pest Control which was directed at the Rays. Any possible misrepresentation by the Baileys was made to the Montgomerys, and any possible misrepresentation by Guaranty was made to the Baileys. The Rays were not the persons to whom any representation was made. It is fundamental that the representee who has relied on the defendant’s misstatements and the plaintiff who was injured must be one and the same. See Ames v. Pardue, 389 So.2d 927 (Ala.1980); Ansley v. Bank of Piedmont, 113 Ala. 467, 21 So. 59 (1896); Jordan v. Pickett, 78 Ala. 331 (1884).

With ordinary diligence, the Rays could have discovered evidence of the termite damage. The Montgomerys did not prevent the Rays from inspecting the timbers in the cellar before they sold the house. The Rays had ample opportunity to look for termite damage, and their failure to inquire or inspect negates actionable fraud under these facts. Marshall v. Crocker, 387 So.2d 176 (Ala.1980).

There is no contractual obligation on the part of Guaranty to the Rays. Protection under the service contract does not run to the owner of the property but to the contractual parties. The Rays are not third-party beneficiaries under that contract as they were not intended beneficiaries. The contract was entered into for the purpose of protecting the house as the property of the Baileys. The Baileys were protecting their interest and investment and were not altruistically protecting the property for subsequent purchasers. The appellants’ reliance on Harris v. Board of Water and Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So.2d 624 (1975), is misplaced as the contract in that case was a public rather than a private one, and the benefit of that contract ran directly to landowning members of the public.

The appellants assert that the Montgomerys breached a duty to disclose termite damage as it is a dangerous, known, latent defect. We disagree. Alabama retains the caveat emptor rule with regard to the resale of used residential real estate. Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884 (1961). Although we have abrogated the caveat emptor rule in sales of new residential real estate by a builder/vendor, Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971), we have not extended the Cochran rule to the sale of used homes, and we are not inclined in this case to depart from a long-standing rule which provides certainty in this area of the law. A purchaser may protect himself by express agreement in the deed or contract for sale. 272 Ala. at 417, 131 So.2d 884. Here, the contract expressly provided “no warranties” and “as is” clauses to which the Rays agreed. They had ample opportunity to inspect the bearing timbers of the house before purchasing it.

Finding no factual or legal basis for liability on the part of any defendant, we hold that the trial court’s order granting summary judgment in favor of the defendants is due to be and the same is affirmed.

AFFIRMED.

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

MADDOX and JONES, JJ., concur in the result.

      . By order of this Court dated June 24, 1980, a prior order (dated May 27, 1980) dismissing the appeal as to the Montgomerys was set aside to be considered with the case on the merits. We now hold that the appeal as to the Montgom-erys was improperly dismissed, and we reinstate the same.


author: ADAMS, Justice.

text:
    CRESCENT TRANSIT, INC., and Gilbert Arthur Mitchell v. Baby Girl VARNES, also known as Joanna Varnes & Gina Varnes, by and through her guardian ad litem, Gary C. Huckaby, et al.
    79-724.
    Supreme Court of Alabama.
    March 26, 1981.
    Rehearing Denied May 29, 1981.

      Ralph D. Porch of Merril, Porch, Doster & Dillon, Anniston, and Patrick W. Richardson of Bell, Richardson & Herrington, Huntsville, for appellants.
    Gary C. Huekaby of Smith, Huckaby & Graves, Huntsville, for appellees.
   ADAMS, Justice.

This is an appeal from a final judgment of the Circuit Court of Madison County awarding the appellee, Baby Girl Varnes (Baby Girl), the sum of $125,000.00, for personal injuries received in an automobile accident, and awarding the State of Alabama the sum of $530.00. Baby Girl had incurred $4,541.26 in medical expenses for treating the injuries. Of this, $530.00 was paid under the State’s Medicaid program. The judgments are against Crescent Transit, Inc., (Crescent) and Gilbert Arthur Mitchell (Mitchell).

The facts are rather straight-forward. On November 27, 1978, Baby Girl, who was seven months old, was a passenger in her foster parents’ automobile as it proceeded along a thoroughfare in Huntsville, Alabama. A school bus owned by Crescent, driven by Mitchell, entered the thoroughfare from an intersecting street, ran a stop sign and collided broadside with the automobile.

Baby Girl suffered severe facial injuries. A skin graft was required to repair severe lacerations to her right eyelid. Further plastic surgery may be required to repair severe lacerations to her right eyelid when she is five or six years old, and again to revise her scars when she is a teenager. These procedures will cost about $850.00 to $1,050.00 and $650.00, respectively. Baby Girl contracted meningitis the day following the accident, caused by her injuries in the opinion of her pediatrician. At the time of trial, Baby Girl could not close her eyelid. Furthermore, it had to be taped shut when she slept. She also suffered permanent facial scars.

The original complaint filed in this case asked for $100,000.00 in damages because of negligent and wanton injury to the plaintiff. On the second day of trial, plaintiff amended her complaint to increase the ad damnum from $100,000.00 to $250,000.00; this amendment was allowed by the trial court over defendant’s motion to strike, It presented, for the first time, a claim in excess of the public insurance policy limits of Crescent. Crescent did not make this fact known to the trial judge when it argued its motion to strike, nor did it ask for a continuance on the grounds of exposure in excess of coverage. This was communicated to the trial judge only after a verdict had been brought in by the jury for $125,-000.00. In its motion for new trial, Crescent argued that to have revealed its policy limits to the court at the time it argued its motion to strike would have contravened the policy considerations of Rule 26(b)(2), ARCP, which protects from discovery the amount of coverage under any insurance agreement.

In the course of its closing argument, counsel for Crescent and Mitchell made the following statement to which counsel for Baby Girl objected, viz.: “I would suggest that $5,000.00 invested each six months at 14.956 percent.... ” The trial court sustained the objection, stating, “I think your argument should be on present value. I don’t think you have any basis for the argument that you are making now.”

The issues framed by the briefs of the parties are as follows:

(1) Did the trial court err in overruling defendants’ motion to strike plaintiff’s amendment to her complaint increasing the damages claimed?

(2) Did the trial court err in sustaining plaintiff’s objections to closing argument of counsel for defendants regarding an investment of an award at 14.956 percent?

(3) Did the trial court err in denying defendants’ motion for new trial?

We answer in the negative to each issue and affirm.

I.

Rule 15(a), Alabama Rules of Civil Procedure, provides in part:

... A party may amend his pleading once as a matter of course or at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading without leave of court but subject to disallowance on the court’s own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires. [Emphasis added.]

In the case of Bracy v. Sippial Electric Company, Inc., 379 So.2d 582 (Ala.1980), the trial court granted plaintiff’s motion to amend at the beginning of trial. This amendment added a fraud count and increased the ad damnum clause. This court, speaking through Justice Bloodworth, held as follows:

ARCP 15 expressly provides that amendments should be freely allowed when justice so requires; and our rule regarding amendments is that Rule 15 should be liberally construed within the sound discretion of the trial judge. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar an amendment. Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974); Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).

The plaintiff’s attorney, having demonstrated a case of clear liability, as well as substantial permanent injuries and disfiguration, acted properly in asking for an increase in the ad damnum clause. The trial court was within the bounds of its discretion in allowing the amendment unless the defendant demonstrated prejudice. Here, no evidence of prejudice was offered, when plaintiffs moved to amend.

Appellants argue that they are protected from divulging the amount of their policy limits by reason of Rule 26(b)(2), ARCP. This rule prohibits discovery of the amount of insurance coverage, while at the same time it allows discovery of the fact of coverage. In the case before us, plaintiff was not seeking, by discovery, the amount of coverage. In the context of this case, the appellants cannot have it both ways. They cannot withhold the amount of coverage hoping for a judgment less than coverage (also restricting the plaintiff in her demands for settlement), and then complain that the judge should not have allowed the amendment when there is a judgment in excess of coverage. This is especially true when the defendant did not ask for a continuance. We hold that the policy considerations of Rule 26(b)(2), ARCP, must yield when we weigh the right of the defendant under that rule with the need of the Rial judge to have facts necessary to exercise his discretion under Rule 15, ARCP.

II.

The second issue raised by appellants is whether the trial court erred in sustaining plaintiff’s objections to the closing argument of counsel for defendants regarding investment of an award at 14.956 percent. Counsel for defendants argued that the trial judge precluded him from making an argument on the present worth of prospective damages as authorized by Louisville & N. R. Co. v. Steel, 257 Ala. 474, 59 So.2d 664 (1952). In fact, counsel contends that the trial court precluded him from making any mathematical argument. Counsel further argues that the trial court unduly restricted him from arguing the inferences from the testimony as authorized by R. C. Bottling Company, et al. v. Sorrells, 290 Ala. 187, 275 So.2d 131 (1973); Alabama Power Co. v. Goodwin, 210 Ala. 657, 99 So. 158 (1923); and Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548 (1898). A close examination of the colloquy between trial judge and counsel concerning this issue convinces us that appellant’s claims are without merit. The complete discussion of the court and counsel is as follows:

(Mr. Patrick Richardson summed up to the jury on behalf of the defendants, and during same the following occurred:)
MR. HUCKABY: We object to this line of argument Your Honor.
THE COURT: Sustained.
MR. PATRICK RICHARDSON: I would suggest that $5,000 invested each six months at 14.956 percent—
MR. HUCKABY: We object to this line of argument, Your Honor.
THE COURT: Mr. Richardson, I have sustained the objection to that line of argument. I don’t think it is proper in this case. Move along to something else.
MR. PATRICK RICHARDSON: I am merely setting out the mathematical figures, Your Honor.
THE COURT: There is no evidence in this case about any 14 percent figures.
I think that is what your objection is.
MR. HUCKABY: We object to his argument of investing any money. The child has got to live during that time.
THE COURT: Come up here just a moment, please. I am going to sustain the objection to any mathematical argument. I don’t think it is proper at this point, without some evidence to substantiate it.
MR. PATRICK RICHARDSON: Is the Court ruling that we are not permitted to argue interest on any award for damages?
THE COURT: I think your argument should be on present value. I don’t think you have any basis for the argument that you are making now. That’s my ruling. Okay?

It is quite obvious that the judge sustained plaintiff’s objection to defendants’ present value argument based on the fact that there was no evidence that 14.956 percent was the proper interest rate. Defendants’ counsel could not make a mathematical calculation based on an interest rate that was not in evidence. Osborn v. Brown, 361 So.2d 82 (Ala.1978); Walker v. Cardwell, 348 So.2d 1049 (Ala.1977); Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973).

III.

The defendants’ motion for new trial was predicated solely on the error alleged in issues I and II presented for review. Having concluded that defendants’ arguments concerning these issues are without merit, we hold that the trial court did not err in overruling defendants’ motion for new trial.

Therefore, the judgment below is due to be affirmed.

AFFIRMED.

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

On Application for Rehearing

Appellant has filed an application for rehearing directed to part II of the court’s opinion, which held that the defendant could not make a mathematical calculation based on an interest rate of 14.956%, which had not been proved by competent, relevant and material evidence. We have considered the excellent briefs provided by both of the parties and are of the opinion that the application for rehearing is due to be overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: EMBRY, Justice.

text:
    James S. LLOYD, as Guardian ad Litem of Darrin L. Sanders; and Ruth L. Johnson, individually and as Executrix of the Estate of Emma Hollins v. Louis HOLLINS.
    79-642.
    Supreme Court of Alabama.
    April 9, 1981.
    Rehearing Denied June 5, 1981.

      James S. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant Guardian ad Li-tem.
    Joseph W. Adams, Birmingham, for appellant Ruth Johnson.
    C. Crawford Williams of Lowe & Williams, Birmingham, for appellee.
   EMBRY, Justice.

Ruth L. Johnson, and James S. Lloyd, as guardian ad litem of Darrin L. Sanders, appeal from a final judgment of the Probate Court of Jefferson County that permitted Louis Hollins to dissent from the will of his late wife Emma Hollins and take as if there were no will and which further granted him the exemption in lieu of homestead provided in Code 1975, § 6-10-61 (exemption in lieu of homestead when decedent has no homestead exempt to him or her at the time of death). The judgment further ordered that the only real property owned by Emma Hollins at her death, a house and lot at 508 Tenth Street, Birmingham, Alabama, be sold and $6,000 of the proceeds be applied according to the provisions of Code 1975, § 6-10-96, reading in part as follows:

.. . and said sum of $6,000.00 shall, in the discretion of the court, be applied by the court to the purchase of a homestead for the benefit of such surviving spouse and minor children, or either of them or be paid by the court to the surviving spouse for the use and support of said surviving spouse and minor child or children or either ....

The issues presented for our review are: (1) Whether the probate court is authorized to order award of a $6,000 exemption in lieu of homestead to a surviving husband where his deceased spouse died testate; and (2) and whether a surviving husband may dissent from his deceased wife’s will and take as if she died intestate.

Facts

Emma Hollins died testate in January 1979. The record does not indicate what, if any, personal property she owned but it does disclose that the only real property she owned was the house and lot at 508 Tenth Street, Birmingham, Alabama. That property did not exceed 160 acres in area but did exceed $6,000 in value. Under her will, Emma Hollins left a succession of life estates in her homeplace (508 Tenth Street, Birmingham, Alabama), furniture and household goods; first to her daughter, Ruth Sanders (Johnson), and her grandson, Darrin L. Sanders; then to the survivor thereof for life; then to the children of Darrin Sanders, living at the testatrix’s death (there were none), for life; then to Louis Hollins for life; then to Eula Streeter for life. Upon termination of those life estates the will provided for a remainder in Margie Deaton, Camilla Tettway, Ida Mae Taylor, Fletcher Satisfield, Deforis Satis-field and Levia Satisfield. The residue of her estate, both realty and personalty, she left Ruth Sanders (Johnson) and Darrin L. Sanders absolutely. There is nothing in the record to show that there were any assets in the estate other than the house and lot at 508 Tenth Street, Birmingham, Alabama.

Discussion

Code 1975, § 6-10-61, permits the surviving husband to set apart $6,000 of the proceeds from the sale of the homestead as an exemption in lieu of homestead. This statute is now a neuter gender statute. Not only is it neuter gender but it expressly provides “... and in no case and under no circumstances shall the surviving spouse ... be deprived of homestead or $6,000 in lieu thereof This right of exemption cannot be cut off by a will of the deceased spouse. See Chamboredon v. Sayet, 176 Ala. 211, 57 So. 845 (1912). Being creatures of law, homestead exemptions are not affected by testamentary disposition. Richter v. Richter, 180 Ala. 218, 60 So. 880 (1913).

Appellants argue that the Const, of Ala. of 1901, § 209, prohibits the surviving husband from taking an exemption in lieu of homestead when the wife dies testate. We do not place such a broad over-inclusive construction on that section of the constitution. It provides:

The real and personal property of any female in this state, acquired before marriage, and all property, real and personal, to which she may afterwards be entitled by gift, grant, inheritance, or devise, shall be and remain the separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised or bequeathed by her, the same as if she were a femme sole.

The provision was designed to provide for the separate estate and property of married women and to afford married women the same capacity to devise and bequeath property as an unmarried woman. This court has stated with regard to this provision that:

In the interpretation of constitutional provisions like that under consideration, the intent of their adoption, the end proposed to be accomplished, cannot well be ascertained, nor can they be justly interpreted and construed, unless the prior state of law, written and unwritten, is kept in view. It is only by consulting the common law, that we can understand and explain the full import and significance of the terms employed in this section, the changes it may work, and render secure against legislative enactment. By the common law, the husband and wife were regarded as one person, and her legal existence and authority were in a degree merged in that of the husband. She had not capacity to contract, nor the management or disposal of property. If at the marriage she was seized of an estate of inheritance, or she became seized thereof during marriage, the husband became seized, taking the rents and profits during their joint lives, and by possibility during his life, leaving to the wife or her heirs a reversion only. If the estate was of freehold, and not of inheritance, as for her own life, or that of another, the husband became seized of such estate, taking the rents and profits during marriage. Her chattels real passed to the husband, who could sell, assign, or make other disposition of them at pleasure. He had power to reduce to possession her choses in action, and by reduction they became his own absolutely. Personal property of which she had possession, or of which title and possession accrued during marriage, vested immediately and absolutely in the husband. A liability of all such property to the debts of the husband, and his power to dispose of it, were incidents of the right and interest thus created by the law.

Bender and Wife v. Meyer & Co., 55 Ala. 576, 580 (1876).

The meaning of this constitutional provision is all the more apparent when it is kept in mind that prior to adoption of it a married woman did not have the capacity to devise real property. Baker v. The Heirs of Chastang, 18 Ala. 417 (1850).

After consideration of these factors, it is clear that § 209 has no relation to this case or to the statutory provisions regarding homestead exemptions, or exemptions in lieu thereof, codified in Code 1975, §§ 6-10-60 through 6-10-107 but rather provides married women with the right to own separate property and with the capacity to devise and bequeath such property.

Regarding whether Louis Hollins may dissent from his deceased wife’s will and take as if she died intestate, there is no requirement that a surviving spouse dissent from the deceased spouse’s will in order to claim homestead exemptions or an exemption in lieu thereof. See Johnson v. Johnson, 252 Ala. 366, 41 So.2d 287 (1949). Furthermore, the probate court’s decision in this regard is not necessary to a resolution of the dispositive issue in this case in this appeal. On this record, it would be reckless to address constitutional questions regarding the statute giving a widow, but not a widower, the right to dissent from a will.

The appellee, Louis Hollins, argues that there are no other assets against which he may make a claim and the right to dissent is totally without consequence in this case. Appellee’s position in this regard is totally consistent with the record. It is therefore apparent that the portion of the probate court’s decree which grants the surviving husband the right to dissent is unnecessary surplusage in this case. We hereby modify that decree to delete the portion of it granting Louis Hollins the right to dissent from Emma Hollins’s will and to take as if there were no will. In all other respects the decree of the probate court is hereby affirmed.

MODIFIED AND AFFIRMED.

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


author: MADDOX, Justice.

text:
    James W. ELLIOTT v. Virginia STEPHENS.
    80-42.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied May 27, 1981.
    Fred Blanton, Birmingham, for appellant.
    Rodney A. Max of Denaburg, Schol, Mey-erson & Ogle, Birmingham, for appellee.
   MADDOX, Justice.

A default judgment for $15,000 was entered against the appellant who, pursuant to Rule 60(b), ARCP, asked that it be set aside; the trial court, after conducting a hearing on the motion, refused to set the default judgment aside. At issue on appeal is this question:

Did the trial court abuse the discretion granted to it by Rule 55(c) in overruling appellant’s motion to set aside the default judgment?

We have examined the record and have found no abuse of discretion. Our judgment is based upon the facts and circumstances of this case, and upon an application of the law relating to default judgments to those facts and circumstances.

Virginia Stephens, appellee, filed a three-count complaint in which she named several defendants, including the appellant, James W. Elliott. Stephens claimed that when certain real property was conveyed to her the defendants other than Elliott had warranted that the lot contained “a house and side porch with access thereto,” but that she discovered that the fence and side porch were located outside a boundary line and that “this newly discovered boundary line completely eliminated access to the side porch.” Stephens claimed that “the discrepancy concerning the boundary line was caused by mutual mistake by and between the respective grantees and grantors in reliance upon the survey of the defendant, JAMES W. ELLIOTT.”

In Claim I, Stephens sought reformation of the deed so that she could have access to the side porch of her home. In the alternative she demanded $5,000 in damages “to establish access to the porch by alternative means.” In Claim II, Stephens sought $15,-000 in damages based on breach of a warranty that there were no “encroachments to the land and that there would be access thereto.” Stephens sought no relief from Elliott in these two claims.

In Claim III, she sought $15,000 damages against Elliott. She claimed that he negligently surveyed the property by failing to show the correct location of the improvements in relation to the boundary line and by incorrectly stating that the improvements were within the boundary line.

The record indicates that the lower court could have found that defendant Elliott was served on June 4, 1979, and that Elliott failed to answer the complaint, whereupon plaintiff Stephens filed, on October 24, 1979, an application with the Register for the entry of a default. The application for default was supported by an affidavit, and the Register entered a default against Elliott on October 24, 1979. Plaintiff Stephens filed a motion for default judgment on December 4, 1979, and the trial judge entered a judgment by default against Elliott for $15,000 on December 4, 1979.

Defendant Elliott, represented by counsel other than counsel now representing him on appeal, filed a motion to set aside the default judgment, and set forth the following grounds:

That this defendant took no action after service, as a result of mistake on his part, and excusable neglect on his part, in that this defendant assumed incorrectly that a trial date would be set by the Court, and he would be notified of same.
That this defendant is a resident of the Bessemer Division of Jefferson County, and the judgement heretofore entered against him is void by statute.
That this defendant has a valid defense to this action, and that the principles of equity and justice would prevent judgement from being entered against him.
That no one has initiated action on the strength of the said judgement, nor has there been any reliance on the said judgement.

The trial court, after hearing “statements and arguments of counsel,” denied Elliott’s motion to set aside the default judgment on January 18, 1980.

Elliott filed notice of appeal and because there was no transcript made of the hearing on Elliott’s motion to set aside the default, Elliott asked the trial judge, pursuant to Rule 10(d), ARAP, to approve a statement of the proceedings. The trial judge declined.

Because there was no Rule 54(b), ARCP, certification entered as to the default judgment entered against Elliott, and because the matter was still pending against some of the other defendants, this Court, on September 16, 1980, dismissed Elliott’s appeal. Elliott v. Stephens, 79-387 (unpublished order). Meanwhile, on July 30, 1980, a hearing was held on the remaining claims before the circuit court, and a final judgment was entered on September 5, 1980. On October 8, 1980, the trial judge entered an order supplementing the final judgment he had entered on September 5, 1980.

Elliott filed a notice of appeal on October 15, 1980. No new supersedeas bond was filed; but a supersedeas had been filed in Case No. 79-387.

We now state the applicable law and the reasons why we find that the trial court did not abuse its discretion.

Appellant grounded his request for relief under Rule 60(b), ARCP, which provides for relief from a judgment on grounds of mistake, excusable neglect, voidness of the judgment and other grounds. Since Elliott’s motion to set aside the default judgment was filed within 30 days, under our liberal rules of pleading, we may consider the motion as having been filed pursuant to Rule 55(c), ARCP, which deals specifically with default judgments, but the trial judge did not rule upon the motion within 30 days.

Rule 55(c), ARCP, providing for the setting aside of default, states:

In its discretion, the court may set aside an entry of default and the court may set aside a judgment by default within 30 days thereafter.

In Wade v. Pridmore, 361 So.2d 511 (Ala.1978), this Court opined:

Our Rule 55(c) differs from the Federal Rule in that the Federal Rule provides that an entry of default may be set aside for good cause shown, and “may. likewise” set aside a judgment of default “in accordance with Rule 60(b).” Our Rule has no express reference to Rule 60 ARCP. The Committee Comments state:
“This was eliminated in order to insure the court’s power to set aside a default judgment in thirty days in an instance where Rule 60 might not afford justification. No time limit is expressed with respect to an entry of default. Of course, Rule 60 becomes available when more than thirty days has passed since the entry of the judgment by default.”
We opine that a party in default should make a formal motion to set aside a judgment of default. The granting or denying the motion will involve the exercise of the sound discretion of the trial court, and that will be interfered with by an appellate court only where there is an abuse. [Emphasis in original.]

Thus, the trial court has great discretion in deciding whether to grant or deny a motion to set aside a judgment by default under Rule 55(c).

In Oliver v. Sawyer, 359 So.2d 368 (Ala.1978), it was stated:

It is a primary principle of the Alabama Rules of Civil Procedure that the parties to an action should be afforded a prompt and fair trial upon the merits. It is because of this principle that default judgments are not favored, and while the trial court has discretion to grant such judgments, we have frequently held that this exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment. Knight v. Davis, 356 So.2d 156 (Ala.1978); Welch v. G.F.C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976). The trial court is given the same discretionary power to set aside such judgments where good cause is shown under Rule 60(b) and a meritorious defense is alleged. Holleman v. Elmwood Cemetery Corp., 295 Ala. 267, 327 So.2d 716 (1976); Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973); Rule 55(c), ARCP.

This case makes it clear that the discretion afforded under Rule 55(c) should also be afforded under Rule 60(b) in a determination of whether or not to set aside a judgment by default.

Since the trial judge did not rule upon the motion to set aside the default within 30 days, as provided in Rule 55(c), the only relief available to the movant would be that provided for under Rule 60, ARCP. Wiggins v. Tuscaloosa Warehouse Groceries, Inc., 396 So.2d 91 (Ala.1981).

In passing on the requisites for obtaining relief from a default judgment under Rule 60(b), ARCP, this Court has stated:

In order for one to obtain 60(b) relief, he must allege and prove one of the grounds set out under the rules, together with a meritorious defense to the action. Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973); Trueblood Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D. Va.1963). On the other hand if the judgment which forms the basis of the appeal is a void judgment, then such a judgment will negate the necessity of showing a meritorious defense. Modernage v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978).

In the instant case, the appellant alleged grounds under Rule 60(b), as well as a meritorious defense and voidness of the judgment, but there is not before this Court a record of the hearing had on January 18, 1980. While the attorneys for the respective parties did submit affidavits concerning the occurrences at that hearing, the trial judge did not approve the statements filed by the attorneys as to the nature of the proceeding on the ground that he had no independent recollection of what transpired.

The attorneys appearing at the hearing agree, however, that the appellant’s argument was based on excusable neglect, although the attorney for the appellee does not agree that excusable neglect was proven. Even conceding that appellant proved excusable neglect, one of the grounds under 60(b), and the presumption which operates against default, he failed to prove an element required by Raine that he had a meritorious defense. Appellant’s counsel raises, on appeal, what he contends may have been a meritorious defense, but we have no proof in the record to support it.

The trial judge, therefore, under the facts and circumstances here, did not abuse his discretion in denying the motion to set aside the default judgment.

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

AFFIRMED.

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


text:
    Mamie L. TRAVIS et al. v. James Otis TRAVIS et al.
    80-51.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied May 27, 1981.

      Johnnie B. Byrd, Jr., Caffey & Byrd, Brewton, and Edwin C. Page, Jr., Evergreen, for appellants.
    J. Milton Coxwell, Jr., of Coxwell & Cox-well, Monroeville, for appellees.
   MADDOX, Justice.

The sole issue presented in this appeal is whether the trial court erred in declaring a deed to be totally inoperative as to any of the named grantors because the deed was not executed by all of the named grantors. Stated more directly, the issue is whether a deed in which several persons are named as grantors is operative to convey the interest of any named grantor who does execute it.

The property which is the subject of this action is approximately forty acres; one acre lies in the northeast corner of the SE Vi of the SW Vi of Section 13, Township 9, Range 8; the remaining acreage is the SW Vi of the SE Vi of Section 13, Township 9, Range 8, less one acre known as the Jim Davidson homeplace. All of the property is located in Monroe County, Alabama.

This property was conveyed to Adam Travis and his wife, Kate Travis, by a deed dated November 21, 1918. Appellants allege that the property was actually bought by Alexander Travis, but taken in the names of Adam and Kate Travis, his father and mother, because Alexander had not then reached the age of majority. The deed to Adam and Kate Travis does indicate ■ that the consideration was paid by Adam, Kate and Alex Travis.

The appellants are the heirs of Alexander Travis. The appellees are Emma Beck, the sister of Alexander Travis, and the heirs of the six other children of Adam and Kate Travis, both of whom died intestate.

Appellants’ complaint contained three counts. In count one, appellants requested that title to the subject property be quieted in them based upon a purchase money resulting trust in favor of Alexander Travis. Count two was an in rem proceeding to quiet title under Code 1975, § 6-6-560; appellants demanded the same relief as they had in count one. In count three, appellants claimed alternatively; they asked the court if the court found against them on counts one and two, that the court determine who held title to the property and that the property then be sold and the proceeds be divided between the individuals whom the court had determined to be the owners of the property.

The trial court, after hearing the case ore tenus, issued its decree which ordered a sale for division based upon its determination of the owners of the property. In discussing counts one and two of the complaint the court stated:

That, at the time said lands were acquired by Adam Travis and Kate Travis, there was no agreement, express or implied, that the title to said lands would be taken or vested in Alexander Travis, and the Court finds that Alexander Travis did not pay the entire purchase price or consideration for the purchase of said lands. Therefore, the Court declines to declare a resulting trust in favor of Alexander Travis, or his heirs and assigns, in and to the said lands.

The trial court addressed the issue presented in this appeal, namely the effect of a deed to the subject property in 1966, executed by some, but not all of the grantors named therein. The named grantee was Alexander Travis and the stated consideration was one dollar. Listed as grantors were:

Emma Becks, a widow, Willie Travis, single, Dora Lee Sanders, and husband, Nicholas Sanders, Lillian Richardson and husband, Hybart Richardson, T. J. Travis, Luella Love, Costella Travis, Alnora Rat-cliff, James Adorn Travis, George Lee Travis, Grace Travis Montgomery, Kimb-rough Travis, Marzella Brown, Lenora Sanders, Willie Frank Stallworth, C. D. Stallworth, Essie Kate Stallworth Edwards, who together with the grantee constitute all the heirs at law and next of kin of Adam and Kate Travis....

The deed was only executed by Hybart and Lillian Richardson, Emma Beck, Lenora Sanders, Dora Lee and Nicholas Sanders, Willie Travis, Essie K. S. Edwards, Marzella Brown, C. D. Stallworth and Willie Prank Stallworth. It was not executed by T. J. Travis, Luella Love, Costella Travis, Alnora Ratcliff, James Adorn Travis, George Lee Travis, Grace Travis Montgomery or Kimb-rough Travis.

The trial court found:

The Court further finds that the instrument dated August 8,1966, purporting to be a conveyance to Alexander Travis, is incomplete on its face in that all of the named grantors did not execute the same. The Court finds that it was the intention of the parties named in the said instrument that the instrument would not be effective as a conveyance unless and until all of the grantors named therein had executed the said instrument. Therefore, the said instrument dated August 8,1966, is totally inoperative as a conveyance and is given no effect by the Court.

The factual findings of the trial court on conflicting evidence, which was sitting ore tenus, may not be disturbed unless the findings are palpably erroneous and without supporting evidence. Gertz v. Allen, 376 So.2d 695 (Ala.1979).

While we are conscious of the strong presumption attending a trial judge’s finding of fact when he sees and hears the witnesses testify, we have examined the record here and find little evidence to support the trial court’s findings. The only “evidence” which could support the finding that the grantors did not intend for the deed to be operative “unless and until” all of the grantors had signed it is the recital in the deed that the grantors along with the grantee constitute all the heirs and next of kin of Adam Travis and Kate Travis. The inference would be that all the heirs were desirous of getting the title to the land back in Alexander Travis. This recital in the deed is insufficient evidence to support the trial court’s finding that the grantors who did sign the deed did so conditionally.

Since we are unable to find support for the finding that the grantors did not intend for the deed to be operative unless and until all of them had executed it, we turn next to the question of whether as a matter of law a deed which is executed by some, but not all, of the grantors is totally inoperative. We have been unable to find any Alabama cases which address this issue, but it has been addressed in at least two jurisdictions.

In Cities Service Oil Co. v. Viering, 404 Ill. 538, 89 N.E.2d 392 (1949), it was stated:

In the case of Heckmann v. Detlaff, 283 Ill. 505, 119 N.E. 639, it was held that a warranty deed, stating in the body thereof that it was made by a husband and wife, but which was signed and acknowledged only by the husband, is, as to property of the husband other than his homestead estate, valid and binding upon the husband, and that the fact, alone, that the names of both husband and wife are in the body of the deed does not show it was not intended to be binding on the husband unless executed by both grantors.

In Gonzales v. Gonzales, 267 Cal.App.2d 428, 73 Cal.Rptr. 83 (1968), the California Court of Appeals opined:

The governing law has been stated as follows: “A deed in which several persons are named as grantors obviously is ineffective as against any such person who has not executed it. However, such an instrument is operative to convey the interest of any person named as grantor who does execute it, unless it is drawn with the obvious intention that it shall not take effect until executed by all persons named as grantors, as in the case of a deed of partition.” (15 Cal.Jur.2d, Deeds, § 74, p. 473; to the same effect. See 4 Tiffany on Real Property (3d ed. 1939), § 1023, p. 181.)

This rule has also been stated in 26 C.J.S. Deeds, Section 32.

We hold that the 1966 deed is operative as to those grantors who executed that deed. Therefore, the judgment of the trial court finding that deed to be totally inoperative is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Ex parte Jeffie JONES et al. (In re Essie Moore LOGAN and Evelyn Dean v. TOWN OF FRISCO CITY et al.)
    80-267.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied May 27, 1981.
    Bert S. Nettles, of Nettles, Cox & Barker, Mobile, and J. Milton Coxwell, Jr., of Cox-well & Coxwell, Monroeville, for petitioners.
    Benjamin T. Rowe and Michael L. Fees of McRight, Sims, Rowe & Stewart, Mobile, for respondents.
    Drayton N. Hamilton of Alabama League of Municipalities, amicus curiae.
   MADDOX, Justice.

What is the proper venue of a proceeding to enforce a judgment against a municipality when the judgment against the municipality was entered in an original action properly filed and tried in a county other than the county where the municipality is located? That is the crucial question presented by this appeal.

Essie Moore Logan and Evelyn Dean, respondents herein, obtained a judgment against the Town of Frisco City in the Mobile Circuit Court. All of the parties agree that venue was proper as to this original action because venue was proper in Mobile County as to Ford Motor Company, a co-defendant of the Town of Frisco City. Rule 82(c), ARCP.

The respondents were unable to collect this judgment against the Town of Frisco City. On June 17, 1980, they filed a petition for writ of mandamus, injunctive and other relief in the Circuit Court of Mobile County; against the Town of Frisco City, the Town Council of the Town of Frisco City, namely, Harvey Martin (then mayor of the town), Sue Starr, Douglas Williams, W. B. Barganier, Gordon Harrison and James Wilson (the then members of the Town Council). On July 1, 1980, the petitioners herein, Martin, Starr, Williams, Bar-ganier, Harrison and Wilson, filed a motion for change of venue or, in the alternative, to dismiss on the ground that venue was not proper in Mobile County.

On October 6, 1980, Martin was replaced as mayor by Jeffie Jones, and the town council was replaced by Oris Browning, Howard McWilliams, W. P. Albritton, William Davis and Gilbert Norris. On December 15, 1980, Logan and Dean filed an amended petition to add Jones, Browning, McWilliams, Albritton, Davis and Norris as respondents. On January 9,1981, the original motion for change of venue was refiled on behalf of the parties named in the amended petition. The motion for change of venue was denied by Circuit Judge Brax-ton Kittrell. The petitioners herein then filed this petition for writ of mandamus, requesting this Court to compel Judge Kitt-rell to grant their motion for change of venue.

All of the parties agree that the petitioners have at all times relative to these actions been residents of Monroe County, Alabama. Likewise, all of the parties agree that because Ford Motor Company was a party to the original action filed in Mobile County, that original judgment against the Town of Frisco City is valid. The parties differ on the issue of whether the respondents can validly seek to enforce that judgment by writ of mandamus in Mobile County-

The critical issue is whether the mandamus filed by the respondents to enforce the original judgment is a new and separate action or whether it is an action ancillary to the original proceeding. If the mandamus is a new action, then the proper venue would be in Monroe County, where each of the respondents resides. If the mandamus petition filed in circuit court is ancillary to the original action, wherein the judgment now sought to be enforced was rendered, then venue would be proper in Mobile County. Since all parties agree that venue was proper in the original action, the only question remaining is whether the mandamus petition was ancillary to the original action or was a separate proceeding.

There appear to be no Alabama cases which state whether mandamus is a new action or whether it is ancillary to the original action when it is used to collect a judgment. In Mayor and City Council of Anniston v. Hurt, 140 Ala. 394, 37 So. 220 (1903), this Court did note that if the judgment is a valid debt against the municipality then the writ of mandamus is in the nature of an execution.

Other jurisdictions have directly addressed the issue presented in this case. In State v. Knight, 121 S.W.2d 762 (Mo.App.1938), it was stated:

Mandamus is a proper remedy to enforce a judgment against a municipal or public corporation and it has been generally used for such purpose in this state. It is an ancillary proceeding to the main suit and when so employed is not a new suit, but simply process essential to jurisdiction. It is a means of enforcing the collection of a judgment against a municipal corporation and is the legal equivalent of an execution upon a judgment against an individual. [Emphasis added.] [Citations omitted.]

Likewise, the Supreme Court of New Mexico has stated:

Mandamus is one of the remedies and often the only one available to compel a governmental body to pay a money judgment. 155 A.L.R. 464. Mandamus issued to enforce payment of a money judgment against a governmental agency is only ancillary to and in aid of the judgment, and serves the same purpose as the writ of execution. Territory ex rel Chapman v. County Commissioners, 14 N.M. 134, 89 P. 252. The nature of the mandamus under such circumstances was clearly defined by the Supreme Court of the United States in Riggs v. Johnson County, 6 Wall 166, 73 U.S. 166, 18 L.Ed. 768, where it was said:
“ * * * Where such an exigency arises, they may issue it, but when so employed, it is neither a prerogative writ nor a new suit, in the jurisdictional sense. On the contrary, it is a proceeding ancillary to the judgment which gives the jurisdiction, and when issued becomes a substitute for the ordinary process of execution to enforce the payment of the same .... ” [Emphasis added.]

State v. Quesenberry, 72 N.M. 291, 383 P.2d 255 (N.M.1963).

We hold that when a writ of mandamus is sought to enforce a judgment against a municipal corporation the mandamus is ancillary to the original action. In the present case, the mandamus filed by the respondents is ancillary to the original action which was filed in Mobile County. The judgment was rendered against the petitioners. Since all of the parties agree that venue was proper in Mobile County in the original action, then venue would also be proper in Mobile County as to the mandamus sought by the holders of the judgment to enforce that judgment.

The judgment of the trial court which denied the motion for change of venue was proper; therefore, the present writ of mandamus to compel the granting of change of venue is due to be denied.

By denying mandamus, however, we should not be understood as addressing the question whether the petitioners in the trial court are entitled to prevail on each and every request for relief made in their petition; this opinion addresses solely the question of venue and not the merits of their petition.

PETITION FOR WRIT OF MANDAMUS DENIED.

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