author: ROY NOBLE LEE, Justice,

text:
    Carroll Edward RHODES v. Robbie Mishell RHODES.
    No. 53448.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Rehearing Denied Nov. 10, 1982.
    Carroll Rhodes, Hazlehurst, for appellant.
    Charles H. Ramberg, Samuel L. Walters, Jackson, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Chancery Court of the First Judicial District of Hinds County, Honorable Paul G. Alexander, presiding, entered a decree finding Carroll Edward Rhodes in willful, deliberate contempt of court, for failure to pay unto Robbie Mishell Rhodes child support and automobile insurance premium. In addition, he prohibited Rhodes from practicing law in the Chancery Court of Hinds County until he purged his contempt. Rhodes has appealed and assigns the following, errors in the trial below:

(1) The chancery court erred in holding appellant was in willful and deliberate contempt of court.

(2) The chancery court erred in prohibiting appellant from practicing law until he purged himself from contempt.

(3) The chancery court erred in awarding attorney’s fees to appellees.

(4) The chancellor erred in not recusing himself due to bias and prejudice.

On May 3, 1979, appellant and appellee were divorced in the Chancery Court of Hinds County, First Judicial District, on irreconcilable differences. The final decree awarded custody of three (3) minor children to appellee, provided for visitation rights to the father and ordered appellant to pay two hundred twenty-five dollars ($225.00) per month in child support for his children, to pay the balance on the family automobile, and to maintain insurance on it. He also was required to assume liability and pay for various charge accounts. On May 11, 1981, appellee filed a petition for a contempt citation against appellant, charging that he was in arrears in child support payments in the sum of nine hundred thirty-seven dollars ($937.00), that he had failed to maintain insurance on the automobile and that she was due sixty dollars ($60.00) as a result thereof. She also prayed for attorney’s fees.

I.

Did the chancery court err in finding that appellant was in willful and deliberate contempt of court?

The chancellor found that appellant was in contempt of court on the proof that Rhodes was eleven hundred sixty-two dollars ($1,162.00) in arrears in child support payments at the time of the trial, and that he had permitted the car insurance policy to lapse without justification. The appellee proved those two areas of the chancellor’s decision, and it then became the responsibility and burden of appellant to prove his inability to pay the support and the car insurance, or to give a reasonable excuse for not doing so.

In Garceau v. Roberts, 363 So.2d 249, 250 (Miss.1978), the Court said:

While courts approach child support orders and credits thereon in a somewhat different manner from ordinary debts, it remains in the child support area, too, that when the creation of an indebtedness is established, as is admitted by appellee in this record, then payment of it is an affirmative defense which must be pleaded, Hannon Motor Co. v. Darr, 212 Miss. 870, 56 So.2d 64 (1952). The burden to prove that defense is, as in other affirmative allegations, upon the party relying thereon.

Without detailing the evidence, which consisted of testimony by appellant and appellee and an accounting by appellee, suffice it to say, there was a conflict in the evidence. On that conflict, the chancellor was manifestly wrong in his finding. However, we have reviewed the evidence on the question of contempt, and conclude that the chancellor was justified in such finding.

II.

Did the chancery court err in prohibiting appellant from practicing law in the Chancery Court of Hinds County until he purged himself of contempt?

In the contempt order the chancellor decreed as follows:

ORDERED, ADJUDGED AND DECREED that Carroll Edward Rhodes will be barred from practicing law in the Chancery Court of Hinds County until he purges himself of this contempt decree by paying in full the $1,162.00 of the past due child support, the $60.00 damages from the lapsed insurance policy, the attorney’s fee of $250.00 and the court costs of $15.00.

Appellant contends the court had no authority to bar him from practicing law in the Hinds County Chancery Court and that the authority is vested in the Supreme Court under Mississippi Code Annotated § 73-3-301 (1972) which follows:

Any attorney regularly admitted to practice law in the State of Mississippi or any attorney specially admitted to practice law by a court of this state or any individual admitted to practice as an attorney in any other jurisdiction who regularly engages in the practice of law within this state as house counsel to corporations or other entities, counsel for governmental agencies, out-of-state lawyers admitted or permitted to practice law in this state by comity, bar examination or otherwise are subject to the exclusive and inherent disciplinary jurisdiction of the Supreme Court of Mississippi and the disciplinary agencies hereinafter established and designated; provided, however, nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over practice in and proceedings conducted before it, such as the power of contempt, not to prohibit local bar associations from censuring, suspending or expelling their members from membership in such local bar association.

The order amounted to a disbarment of the appellant from practicing law in the Chancery Court of Hinds County, presided over by three (3) chancellors, for the time indicated. We recognize that trial courts have the authority to control their dockets and to discipline attorneys and parties appearing before them for the orderly disposition of court business, but the action taken here exceeds that authority. An attorney should not be disciplined for misconduct outside of his professional capacity unless such misconduct is of a serious nature, and tends to show him to be an unfit person to be an attorney. In some jurisdictions, the courts lack authority to disbar an attorney for misconduct committed in his individual capacity and not in a professional capacity. 7 C.J.S. Attorney & Client § 75 (1980). See also Ex parte Redmond, 156 Miss. 439, 455, 125 So. 833, 836 (1930).

Conceivably, the appellant could be called upon to appear before the Chancery Court of Hinds County in this cause or a different cause and would have the constitutional right to appear pro se. Under the subject order, he could not do so, in violation of his constitutional rights. The chancellor in the present case may recuse himself in matters involving appellant if he feels that he cannot act in a judicious manner. Therefore, we are of the opinion that the part of said order prohibiting appellant from practicing law in the Chancery Court of Hinds County should be reversed.

We have considered the other two assignments which relate to the payment of attorney’s fees and that the chancellor was biased toward appellant, and find no merit in them.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


source: Caselaw Access Project

author: PATTERSON, Chief Justice, HAWKINS, Justice,

license: Public Domain

text:
    Carolyn VOSS v. James R. STEWART and Anna Dauro Stewart, Co-Executors of the Estate of John P. Dauro, Deceased.
    No. 53154.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Rehearing Denied Nov. 10, 1982.

      Wittmann, Berry & Sneed, Thomas D. Berry, Jr., Gulfport, for appellant.
    Larry L. Lenoir, Gulfport, for appellee.
   PATTERSON, Chief Justice,

for the Court:

Carolyn Morreale Voss had appealed from a decree of the Chancery Court of Hancock County which dismissed her bill of complaint asserting rights to property devised to others by will. She claims an interest in the property by contract for her services, or alternatively, for payment for such services on a quantum meruit basis.

John and Mary Dauro, deceased, owned and operated two candy shops in Bay St. Louis during the 1950’s until they died. Carolyn Morreale, their niece, is the daughter of Mary Dauro’s sister, as well as being the godchild of the Dauros. She helped them at Mary Ann’s Gift Shop, their first store, in 1950 when she was only nine or ten years of age. The Dauros were attached to Carolyn, having no children of their own, and after purchasing the property for the second shop in 1952, decided to name it after her.

The new candy shop was built in 1952, and during that year the Dauros went to Carolyn’s home to discuss naming the store after her. Carolyn’s father, Ben Morreale, testified their reason for so naming the shop was that it would become Carolyn’s upon their death. Apparently the conversation led to the following undated instrument, handwritten by Mary Dauro, and witnessed by two friends of the Morreales and Dauros after being signed.

We, Mary F. & Johnnie Dauro agree to leave Carolyn’s gift shop and anything on that property will go to Carolyn upon our death. The shop will be name Carolyns gift shop.

Mary F. Dauro

John P. Dauro

Witness:

Edward J. Gipson

Louise Gipson

The record does not disclose whether Carolyn participated in this agreement and because of her tender years it seems unlikely that she could have done so. She, of course, could not testify under the “Dead Man’s Statute” and because the witnesses to the instrument had since died, its authenticity, if a will, was proved by Ben Morreale, as to the subscribing witnesses’ signatures.

The testimony reflects that Carolyn at times worked for the Dauros in the candy shop when not engaged in school affairs during the regular terms, and on a more regular schedule during school vacation until she graduated in 1957. Whether Carolyn was fully or partially compensated for her activities or paid at all, was sharply disputed. On this conflict the chancellor found, largely on the testimony of Helen Weber, another employee in the candy shop during those years, that Carolyn was in fact compensated weekly.

There was also evidence of the Dauros being displeased with Carolyn because of a boy she briefly dated in high school, although the testimony varies as to the severity and whether there was a reconciliation.

In any event, John’s brother Vincent, related statements made in later years by John and Mary Dauro to Vincent, which disclosed they intended at least at the time of the conversation, for Carolyn to have the shop upon their death, because they had started with little or nothing and Carolyn’s help in the shop entitled her to something.

However, for reasons known only to him, John conveyed part of the subject property to Anna D. Stewart, another niece, on March 9, 1979. After John’s death in 1979, there was admitted into probate John Dau-ro’s will of July 25,1973 wherein he devised his property to Helen Weber, Anna Dauro Stewart and her three children without mentioning Carolyn Voss or the gift shop.

On November 8,1979, Carolyn probated a claim against Dauro’s estate for $19,395 for services rendered. The claim however, was withdrawn, and this suit instituted, alleging that Carolyn and the Dauros had entered into a contract which was also a mutual will, wherein it was orally agreed that John and Mary would leave Carolyn’s Gift Shop to Carolyn in consideration of her working in the candy shop. She charged the services were without compensation and that Dauro’s subsequent will abrogated their agreement. There was also an allegation that the latter will was the product of undue influence and fraud. The complainant prayed she be granted the property upon which Carolyn’s Candy Shop was situated, or in the alternative, for an award of $19,-395 for services rendered.

An amended bill was filed alleging additionally that John Dauro had forgotten his previous promise because he was old, had become ill, and could neither read nor write, and for these and other reasons his estate should be estopped from conveying the subject property pursuant to his last will.

The issue is whether the 1952 instrument, if a will, was revoked by John Dauro. The resolution of this issue requires a scrutiny of the circumstances at the time of the first instrument’s execution and thereafter.

Although the complaint did not request the 1952 instrument be admitted to probate as the last will of the Dauros, the issues presented necessarily required the trial court to resolve the question of whether it was subject to probate. Although our holding in Perry v. Aldrich, 251 Miss. 429, 169 So.2d 786 (1964), would not permit the probate of the earlier instrument when another writing had been probated as the last will of John Dauro, the trial court nevertheless held the earlier instrument to have been a valid will, which was revoked by the later will. The court also found from the conflicting evidence, that “Ms. Weber had been an employee of the Dauros during a portion of the time that the complainant was working for the Dauros. Ms. Weber was paid for her work and her testimony was that the complainant was also paid.” In a supplemented opinion, the trial court found that complainant “failed to prove that she is entitled to any relief based on a quantum merit (sic) basis by a preponderance of the evidence,” whereupon the bill of complaint was dismissed.

The wording of the earlier writing did not refer to any services that Carolyn would perform for the Dauros. It mentioned only that the shop would be named “Carolyn’s Gift Shop” and that the Dauros “agree" to leave it and anything on the property to Carolyn upon their deaths. Since the services entitling her to the property were not mentioned in writing it became Carolyn’s burden to prove the agreement concerning her services by clear and convincing evidence and that she performed such in consideration of the promised devise.

If the burden of proof had been met by the complainant it would have had the effect of confirming the irrevocability of the 1952 will. See Monroe v. Holleman, 185 So.2d 443 (Miss.1966); Denson v. Denson, 203 Miss. 146, 33 So.2d 311 (1948); Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946); and, Price v. Craig, 164 Miss. 42, 143 So. 694 (1932). Our difficulty in the instant case is not so much the rule of law to be applied, as it is in finding facts from the evidence upon which to sustain the thesis claimed by the appellant.

The assignments of error urged for reversal are:

1. The trial court erred in failing to find there was a contract between the decedents and appellant shown by clear, convincing and credible evidence.

2. The trial court erred in finding that although it had found that there was a mutual will that it was revoked by Mary Dauro.

3. The trial court erred in finding that John Dauro revoked the mutual will after the death of his wife, Mary.

4. The trial court erred in finding that appellant was not entitled to compensation on a quantum meruit basis.

In addressing the first assignment for reversal we note that in Kalavros v. Deposit Guaranty Bank & Trust Co., 248 Miss. 107, 158 So.2d 740 (1963), we held the following concerning the degree of proof required in this type of case:

The chancellor rejected the claim of appellant, holding that the facts in this case fail to establish an irrevocable contract between the parties, which required Theo Grillis to make a will devising one-half of his property to appellant. We are of the opinion that the chancellor was correct in so doing, because the evidence is not “clear, definite and certain”, as is required by the rule of law heretofore recognized in cases in this State where the contract is sought to be established to make a will. See In re Boyd’s Estate, 228 Miss. 526, 87 So.2d 902; In re Reinecke’s Estate, 225 Miss. 376, 83 So.2d 438. 158 So.2d at 743.

Although this court has acknowledged that an oral promise to devise property is enforceable where services were performed pursuant thereto, it has nevertheless circumscribed the essentials of such contract in addition to the requirement of “clear, definite and certain” evidence.

In Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946), we stated:

The will, when written in conformity and compliance with the agreement, was a consideration which belonged to the ap-pellee. The testator had no right to revoke it, and its attempted revocation, if deliberately made, constituted a fraud upon her. 199 Miss. at 347, 24 So.2d at 732.
We do not lay down a general rule allowing the establishment of a trust by oral agreement, nor do we design a model for all cases. We do say that where a testator executes a will in compliance with an oral agreement with the devisee that the latter will render unique and necessary-personal services to him involving a substantial change in the status and manner of living of the promisee, and such services have been performed, so that a revocation of the will amounts to fraud upon the latter, rendering it impossible or impracticable to restore him to the situation in which he was prior to the contract, equity will hold such will to be irrevocable and the rights thereunder may be established. 199 Miss. at 351-52, 24 So.2d at 734.

In comparing Kalavros and Tomme to this case, we observe there was no testimony that Carolyn rendered unique and necessary personal services to the Dauros which involved a substantial change in status and life style, nor did she establish that it was impractical for her to be restored to the situation prior to the alleged contract. As mentioned, Carolyn was a child in 1952 when the conversation occurred between the Dauros and her parents leading to the instrument through which she claims. Since initially, it was a unilateral promise, it was necessary for Carolyn to perform some service or act before the promise of the Dauros matured into a bilateral agreement irrevocably binding the Dauros to its terms.

Accepting the contentions urged by the complainant for the moment, and assuming but not deciding there was a promise by the Dauros to devise Carolyn the candy shop, it was revocable until it was accepted by Carolyn through her services in reliance upon the promise. See McGee v. Clark, 343 So.2d 486 (1977); Clinton Service Company v. Thornton, 233 Miss. 1, 100 So.2d 863 (1958); Griefield v. Gibraltor Fire and Marine Ins. Co., 199 Miss. 175, 24 So.2d 356 (1946), as well as Stonestreet v. Southern Oil Co., 226 N.C. 261, 37 S.E.2d 676 (1946), all to the effect that a unilateral promise is unenforceable or revokable until there is an acceptance by the promisee through performance or otherwise. The services performed by Carolyn were neither unique nor unusual, but were “every day” and ordinary and for which she was compensated, as found by the chancellor. Under these circumstances the revocation of the contract by Dauro did not “amount to fraud” upon the promisee as was the ease in Tomme. Having been paid for her services there was no remaining obligation of the Dauros to leave their property to Carolyn.

We have often held that a chancellor’s finding of fact will not be reversed unless it is manifestly wrong. Citation of authority would be superfluous on this point. However, we think some elaboration might be beneficial upon an often overlooked point, and that is, a judge’s or chancellor’s finding of fact is the equivalent of a jury’s verdict upon conflicting evidence.

In Hall v. State, 247 Miss. 896, 157 So.2d 781 (1963), we held:

The decision of the trial judge merits the same consideration as a jury verdict,
The lower court judge, in this case, had sole authority for determining the credibility of the witnesses. Pate Lumber Co. v. Weathers, 167 Miss. 228, 146 So. 433. We have heretofore held that the findings of a court in such circumstances are entitled to the samé .weight as a jury verdict, Key v. Withers, & Wellford, 159 Miss. 125, 131 So. 868, and we have further held that the findings of fact should not be disturbed unless they are manifestly wrong. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273; United States Fidelity Guaranty Company v. State, for use of Ward, 211 Miss. 864, 53 So.2d 11; McCallum v. Laird, 244 Miss. 273, 142 So.2d 32. 157 So.2d at 784.

We conclude the chancellor’s finding that the complainant was compensated for her services, and did not carry her burden of proof in other regard, cannot be held manifestly wrong by this court since the record is not to the contrary.

The court’s finding permeates the other contentions for reversal including the contention that the “mutual will” was not revoked by Mary Dauro because mutual wills are governed by the same general rules of contracts. In Monroe v. Holleman, 185 So.2d 443 (Miss.1966), we held the construction of joint and mutual wills, and the contract under which they are made, is governed by the rules relating to the construction of wills and contracts generally, including the rule that the situation of the parties and the surrounding circumstances are given consideration so as to determine the intention of the testators. In this case the chancellor found that Carolyn had been paid for her services to Mary and John Dauro, and although Mary did not expressly revoke the joint instrument of 1952, her demise did not add to or detract from it, because it was unenforceable for lack of consideration. McGee v. Clark, 343 So.2d 486 (1977); Clinton Service Company v. Thornton, 233 Miss. 1, 100 So.2d 863 (1958); and Griefield v. Gibraltor Fire and Marine Ins. Co., 199 Miss. 175, 24 So.2d 356 (1946). We therefore think this contention has no merit.

We are of the opinion the above conclusions are dispositive of this suit and for that reason the remaining assignments of error are without merit.

AFFIRMED.

SUGG, P. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.

HAWKINS, J., dissents.

HAWKINS, Justice,

dissenting:

With deference, I must respectfully dissent on issues of law as well as the Court’s approval of the chancellor’s finding of fact.

Carolyn Voss has attempted to establish her claim to real property against a deceased’s estate. The law in this state cautiously requires that she establish her claim by evidence other than her own testimony. To this effect, Mississippi Code Annotated section 13-1-7 (1972), commonly referred to as the “dead man’s statute,” states:

A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person, or to establish any claim he has transferred since the death of such decedent. But such person so interested shall be permitted to give evidence in support of his claim or defense against the estate of a deceased person which originated after the death of such deceased person in the course of administering the estate. A person shall not testify as a witness to establish his own or assigned claim or defense against the estate of a person of unsound mind, which originated before the ward became a non compos mentis. But this shall not apply to claims or defenses which arose in the course of the administration of the estate of such person.

Certainly, this statute serves the useful purpose of discouraging fraudulent claims against the estate of the individual who cannot deny the claims made, while permitting legitimate claims which can be established by evidence other than the claimant’s testimony. 81 Am.Jur.2d Witnesses § 304 (1976). The burden is sometimes difficult when one cannot explain his own position, yet the statute and case law prior to this opinion restricts the claimant only in his own testimony. Any other individual may testify on the claimant’s behalf to establish a claim.

The best illustration of the limitations of the Mississippi dead man’s statute is found in Herrington v. Herrington, 232 Miss. 244, 98 So.2d 646 (1957), wherein we upheld the establishment of the claim by the claimant’s own spouse. We stated therein:

One of the assignments of error is that the trial court erred in permitting, over the objections of the complainants, the wife of L. T. Herrington, that is to say Alice Herrington, to testify as a witness. She did not testify to establish her own claim or defense against the estate of a deceased person, but rather to establish the claim of her husband, L. T. Herring-ton, to the land in question. We think that she was a competent witness. Id. at 247, 98 So.2d at 647.

See also Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86 (1947) (claim proved by the claimant’s husband alone). Cf. Smith v. Hinton, 349 So.2d 510 (Miss.1977) (decedent’s widow could testify to establish claim to insurance proceeds since decedent’s ex-mistress, not the widow, was named as beneficiary in policy).

Carolyn Voss presented the testimony of six individuals to establish her claim to “Carolyn’s Gift Shop.” Of these six witnesses, only two were in Carolyn Voss’ immediate family: Kay McCardle, her sister, and Ben Morreale, her father. Both Jean Cantrelle, who testified at the trial, and Mrs. Lois Welch, whose deposition was submitted, had been employed by the Dauros during the years that Carolyn Voss worked at the shop, and were not related to Mrs. Voss, insofar as this record reflects. Annie Morengo, a first cousin to Mrs. Voss, was the daughter of another sister of Mary Dauro. Vincent Dauro, whose deposition was also received into evidence, was John Dauro’s brother and was related to Mrs. Voss only by marriage.

Vincent Dauro’s testimony is perhaps the most convincing of all in that it reflects John and Mary Dauro’s awareness of their obligation to devise the property to Mrs. Voss upon their death, and long after Mrs. Voss had stopped working at the shop. Vincent Dauro testified that years after Carolyn had left the shop, Vincent tried to persuade them to begin giving away their property. He testified that Mary spoke up and said, “Well, Vincent, we have agreed to give [Carolyn’s Gift Shop] ... to Carolyn when we both pass away .... ” John Dau-ro made the same statement, according to Vincent. After Mary died in 1968, John and Vincent were discussing their property again, and John said, “We already agreed to give this to Carolyn.” Vincent also testified that John’s reason for giving the property to Carolyn was that “[after she had worked] for him for that length of time, and that she helped them get started, that they started with little or nothing, and that she helped them get started, that they felt like she was entitled to something, and at the time that she started working for them, that they weren’t able to pay her what they felt like she was worth.”

All of these witnesses testified that they often saw Carolyn working in the gift shop after school and on weekends. They further testified that she was not compensated at that time, since John and Mary Dauro had intended that the gift shop would belong to Carolyn when they died. Their testimony was strongly reinforced by the instrument, later determined by the chancellor to be a will, as well as the blatant fact that the gift shop had been named after Carolyn.

Despite the clarity of everyone’s understanding that Carolyn was to have the gift shop in return for her assistance to the Dauros, the chancellor’s finding that Mrs. Voss was compensated turns solely on the testimony of Helen Weber, another employee and beneficiary under John Dauro’s second will. Concerning the witnesses testifying on behalf of Carolyn Voss, the chancellor stated:

Although there were several witnesses who gave testimony to the effect that Carolyn Voss did work for the Dauros for an extended period of time with no pay, the Court is of the opinion that all of these witnesses have an interest in the outcome of this case either by relationship to the complainant or by similar claims of their own which have been pending before this Court. The only witness that testified who is neither related to nor has a claim against the Dauro estate is Helen Weber. Ms. Weber had been an employee of the Dauros during a portion of the time that the complainant was working for the Dauros. Ms. Weber was paid for her work and her testimony was that the complainant was also paid. While Helen Weber was a beneficiary of the will of John P. Dauro, the value of the estate is sufficiently large and she would receive her inheritance regardless of the outcome of this estate, (emphasis added)

The chancellor’s refusal to consider the testimony of relatives is manifestly wrong, in my opinion. He states, in effect, that the relatives of Carolyn Voss are not credible witnesses since their kinship infers that they have an interest in the outcome of the case. Their “interest”, if any, is simply not borne out by the recorded testimony. Nothing in the record indicates that Carolyn Voss’ relatives were to share interests in the gift shop property had Carolyn Voss succeeded in her claim, and we cannot attach that presumption to her relationship to her witnesses. Yet, the chancellor states, in essence, that their testimony was tainted by self-interest and, therefore, should not be considered.

This finding, aside from being unsupported by the record, does not bear close scrutiny under the Herrington decision, either. Herrington establishes the spouse of the claimant as a competent witness, even though no greater interest in the outcome of a claim of this sort can be inferred by such relation to a claimant. Even though the Herrington decision establishes the competency, as opposed to the credibility of the witness, it nonetheless indicates that the testimony of the claimant’s witnesses should be weighed and considered regardless of the relationship to the claimant. In the case before us, the chancellor summarily dismissed the testimony of Carolyn Voss’ relatives.

The chancellor further states that others testifying for Carolyn Voss were not credible because they had similar claims pending in his court against John Dauro’s estate. It is entirely possible that the chancellor is aware of pertinent variables outside the record, but this Court should base its decision upon a review of that which is reflected in the record, not evidence which we surmise that the chancellor was aware of. Otherwise we cannot properly evaluate the errors assigned. Consequently, from the chancellor’s statement that some of the witnesses have similar cases pending before the chancellor, I can only conclude that this factor is irrelevant. To conclude otherwise would, in my opinion, establish dangerous precedent. The majority has put its stamp of approval on a new rule of evidence, namely: A witness who has a similar claim cannot be a credible witness in the case before the court.

Turning now to this Court’s finding that the services performed by Carolyn Voss were not unique and necessary personal services, I must again voice my dissent. The chancellor did not mention this aspect of the case in his opinion, but the majority states that there is nothing in the record to indicate that the services were anything but “every day and ordinary.” In my view, the majority has emphasized the wrong aspect of the services rendered by Carolyn Voss and has brushed aside the pertinent circumstances which made her services unique to this childless couple.

It is true that the magical words “unique personal services” were never used in the record with reference to the services performed by Carolyn Voss. Certainly, her tasks about the shop were perhaps menial and mundane. Most anyone, even a child, could have performed the duties required of Carolyn during the years that she worked for her aunt and uncle. And yet, Carolyn herself was unique, in that John and Mary Dauro were quite attached to her. The couple had no children of their own, and Carolyn filled this void. Carolyn was indeed like a daughter to John and Mary Dauro. Not only did they name the shop after Carolyn, but they were obviously quite protective of her. Otherwise, they would not have been so upset when Carolyn dated a boy whom they disapproved of. In short, John and Mary Dauro simply wanted the company of this little girl, Carolyn Morreale Voss, their godchild and niece.

I can only speculate on the treasure of this little girl’s company to this couple. But I am certain that John and Mary Dauro got everything they bargained for.

Not only were the services unique for the reasons stated above, but the services proved advantageous to the establishment of John and Mary Dauro’s business. John Dauro, himself, recognized this fact in his conversation with Vincent Dauro, his full brother, years later. Again, Vincent testified that John and Mary’s reason for giving the property to Carolyn upon their death was that Carolyn had helped them get started at a time when they had little or nothing. She worked for a considerable length of time, and they were not then able to pay her what she was worth. Perhaps Carolyn was nominally compensated, but John Dauro had been satisfied with her work and continued to consider himself bound by the agreement.

The majority further does not believe that the services performed by Carolyn to John and Mary Dauro involved such a substantial change in the status and manner of living of Carolyn that a revocation of the will would amount to fraud, rendering it impossible or impracticable to restore her to her situation prior to the contract. I strongly disagree.

Carolyn Voss gave up countless hours of her free time after school and on weekends for seven years to work in the shop under the assumption that the shop would one day be hers. This kind of promise is sufficient to induce almost any enterprising young child or teenager to give up social activities as well as time spent with friends at that age. These activities were all sacrifices which Carolyn had to make and which she would never have the opportunity to participate in again. It also probably affected her school work. These sacrifices were made under the belief that she was investing in her future.

I can only wonder whether our decision today is swayed by our adult detachment from those activities which we, too, once treasured as children. Our application of the law in this regard must reflect the relativity of each individual’s interests and sacrifices, whether made by a child or an adult. In my view, the services and the change in life style made by Carolyn Voss are no different from the unique services performed and recognized in our earlier cases. See Denson v. Denson, 203 Miss. 146, 33 So.2d 311 (1948) (father offered compensation through his will to anyone of his sons who could take hold of farm land and work him out of debt); Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946) (claimant eared for a paralytic two and one-half years until his death).

In summary, the reasons stated by the chancellor for not considering the complainant’s witnesses regarding the compensation for Carolyn Voss’ services were unsupported by the record. In my view the fact that Carolyn was not fully compensated, if indeed compensated at all, is overwhelmingly supported by unbiased testimony which should have been carefully examined. For this reason, the instrument found by the chancellor to be a will could not be revoked by either John or Mary Dauro for lack of consideration. The couple received everything they had bargained for. Since both parties had performed, Carolyn by her services, and the Dauros by the execution of the will, this Court should have recognized the execution of the oral contract as we have done in the past. Johnston v. Tomme.

The execution of the oral contract having been established by the performance of both parties, the 1952 will, executed pursuant to the contract, should therefore be recognized and upheld by this Court, and as irrevocable by John and Mary. As between all the parties in this litigation, the 1952 will should be established as the last will and testament of John and Mary, with the 1973 instrument of John as a lawful codicil thereto.

Of course, the 1952 will is subject to the statutory mandate to probate in either common or solemn form as appellant should choose, and would be subject to challenge by any person who was not a party to this case.

Finally, the 1952 will, together with the 1973 codicil, would still need to be construed by the chancellor to determine the property described and intended to be devised in the 1952 will, and what property remains to pass under the codicil.

For the reasons stated, I would reverse and remand for proceedings consistent with the views stated herein.

      . Mary Dauro died on April 8, 1968, and John died August 1, 1979.

      . The property was conveyed to the Dauros “as an estate in entirety with the right of survivor-ship and not as tenants in common” on January 10, 1952.

      . The record establishes that John Dauro was an astute and successful businessman, though he could neither read nor write, with the exception of his name. Mr. Morreale testified that after Mary wrote the instrument, it was read to John and he approved it.

      . Mrs. Weber, a legatee under John Dauro’s 1973 will, testified that Carolyn was paid weekly as she had been, though she did not know how much. Others, testifying for Carolyn, including John’s brother, stated that she had not been paid since the shop would be hers upon the Dauros’ death. The chancellor considered Mrs. Weber’s statements to be more accurate, since the estate was sufficient to cover her $10,000 bequest without the property in question. See Herrington v. Herrington, 232 Miss. 244, 247, 98 So.2d 646, 647 (1957), (spouse of claimant is competent to establish claim against estate, since not establishing his or her own claim).

      . 81 Am.Jur.2d Witnesses § 354 (1976) states that even coparties may testify on each other’s behalf if their interests are several rather than joint, as follows:
      Under a statute precluding a party to an action by or against a personal representative from testifying for himself concerning transactions and communications with the deceased, where an action is by or against two or more coparties whose interests are several rather than joint, one such coparty may testify in favor of other parties to the action, although not in favor of himself. A personal representative cannot, by making a person a party of record, deprive the adverse party of his testimony where, as between the representative and the adversary, the witness does not testify for himself. If, however, the parties are jointly interested in defeating an action, a party’s testimony as to a defense will ordinarily be regarded as for himself and within the prohibition of the statute.
      The instant case does not even reach this level of concern, yet the chancellor disregarded the complainant’s testimony because they had filed similar claims.


text:
    Charles YOUNG v. STATE of Mississippi.
    No. 53697.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
    Charles Young, pro se.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

EN BANC.

REVERSED AND REMANDED.


text:
    Levon GILL v. STATE of Mississippi.
    No. 53798.
    Supreme Court of Mississippi.
    Oct. 20, 1982.
    R. W. Boydstun, Jr., Louisville, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Winston County; Niles McNeel, Judge.

Before WALKER, P.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C.J., SUGG, P.J., and BROOM, ROY NOBLE LEE, HAWKINS and PRATHER, JJ., concur.


author: TORBERT, Chief Justice. EMBRY, Justice

text:
    STATE of Alabama v. Lilla COOPER, et al.
    80-911.
    Supreme Court of Alabama.
    Oct. 15, 1982.
    H. Young Dempsey, Sp. Asst. Atty. Gen. and Bruce L. Aune, Mobile, for appellant.
    James R. Owen of Owen & Ball, Bay Minette, for appellees.
   TORBERT, Chief Justice.

This is an appeal from a judgment entered on a jury verdict in an eminent domain proceeding in which Lilia Cooper was awarded the sum of $37,000 as damages for land taken for use as a right-of-way for public roads. We reverse.

The State urges that error occurred when certain testimony of an expert witness was admitted over timely objection. More specifically, that appellee’s witness Petersen should not have been allowed to testify as to the sum of money paid the City of Robertsdale for its property located near that of Cooper because such sale was not a voluntary one but to the contrary was made under threat of condemnation. We agree.

The price paid for other property taken by the condemnor is not admissible to show how the appraiser arrived at the value of the property in question. Our cases are clear and consistent on this issue. In Leahy v. State, 214 Ala. 107, 106 So. 599 (1925), we held that the price obtained for other land subject to condemnation is in the nature of a “compromise settlement” and that evidence of the price of other land is “clearly incompetent.” 214 Ala. at 108, 106 So. at 600.

Further, it is a well established rule in Alabama that in condemnation proceedings “the price paid by the condemnor for other lands which are to be used for the same purpose as the lands being condemned is inadmissible, and its admission is reversible error,” State v. Hodge, 280 Ala. 422, 424, 194 So.2d 827, 829 (1967). See also, State v. United States Steel Corp., 410 So.2d 56 (Ala.1982). The rationale behind this rule was articulated in United States ex rel. Tennessee Valley Authority v. Bailey, 115 F.2d 433 (5th Cir.1940): “Such evidence complicates the record, confuses the issue, is misleading, and especially in condemnation cases, raises collateral issues as to the conditions under which such sales were made . . . . ” 115 F.2d at 434.

The appellee argues that even if the trial court committed error by admitting Petersen’s testimony regarding the price paid for property under threat of condemnation, the State did not suffer substantial injury from that erroneous ruling. We disagree.

There was a wide range of testimony presented concerning the value of Cooper’s land. Those valuations ranged from a low of $14,150 to a high of $72,968. The testimony concerning other condemned land placed a value of $30,200 on similar land subject to condemnation. It appears that the jury’s assessment of damages at $37,000 was probably substantially influenced by the testimony concerning other condemned land. Thus, the admission of this testimony does not constitute harmless error, Rule 45, A.R.A.P., and the judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON and BEAT-TY, JJ., concur.

FAULKNER, EMBRY and ADAMS, JJ., dissent.

SHORES, J., recused.

EMBRY, Justice

(dissenting):

I must disagree with the majority. While it is a well established rule in Alabama that in condemnation proceedings the “price paid by the condemnor for other lands which are to be used for the same purpose as the lands being condemned is inadmissible and its admission is reversible error,” State v. Hodge, 280 Ala. 422, 194 So.2d 827 (1967), such evidence was properly admitted in this case because it was one variable presented, among many, to show the method by which the appraiser arrived at the value of the subject property. Petersen supported his computations by discussing the values of surrounding and comparable lands. The accuracy of values he placed upon several of these comparable properties was questioned upon cross-examination. Admission of his testimony about the price paid the City of Robertsdale under threat of condemnation was offered not to show what its actual value was, but, as one of many variables, in order to arrive at what he considered a fair market value of the Cooper property. Whether a witness had an opportunity to form an accurate opinion about the value of property is a preliminary matter and is left largely to the discretion of the trial court. Only where it clearly appears that the ruling was unjust will that exercise of discretion be disturbed. State v. Benderson, 366 So.2d 276 (Ala.1979). I find no abuse of discretion on the part of the trial court in this regard.

Even if the trial court committed error by admitting Petersen’s testimony regarding the price paid for property under threat of condemnation, I do not see, in this case, that the State suffered substantial injury from that erroneous ruling. Rule 45, ARAP, Costarides v. Miller, 374 So.2d 1335 (Ala.1979).

There is another basis that demonstrates the State suffered no substantial injury by the admission of the questioned testimony: that testimony concerning the price paid by the State for the City of Robertsdale property was just one bit of extensive other evidence that the jury considered in arriving at the amount of damages Cooper was entitled to be paid for the taking of her lands. Evidence presented by expert witnesses for both the State and Cooper placed the damages suffered by her at between $14,150 and $72,968; the jury assessed damages at $37,000.

When a jury verdict places the value of property within the range of the highest and lowest value put upon that property by expert witnesses, the conclusion of the trier of fact is to be given great weight. State v. Central of Georgia Railroad Co., 293 Ala. 675, 309 So.2d 452 (1975).

FAULKNER and ADAMS, JJ., concur.


author: FAULKNER, Justice.

text:
    Alice WILLIAMS, et al. v. Fob JAMES, Jr., etc., et al.
    81-136.
    Supreme Court of Alabama.
    Oct. 15, 1982.
    Charles A. Dauphin, of Baxley, Beck & Dillard, Birmingham, for appellants.
    James Jerry Wood and Thomas R. De-Bray of Wood, Minor & Parnell, Montgomery, for appellees.
   FAULKNER, Justice.

This is an appeal from an order denying a motion for a temporary restraining order and granting a motion for summary judgment. We affirm.

In April, 1981, Rebecca Beasley, Commissioner of the Alabama Department of Pensions and Security, proposed the transfer of certain employees of DPS from the state level to various county levels. Beasley’s proposal came after she had met various state and county officials and had received their approval of the transfer.

Beasley made the decision to initiate the proposals in order to alleviate an anticipated budget deficit for the Department and to provide the County Departments with critically needed support personnel. She gave notice of the proposed transfers to the State DPS employees and advised them of the option of a hardship hearing. After the hearings and review of the records, Beasley met with each employee personally before selecting them for transfer to the county levels. The county directors made no objections. They agreed that present classifications under the State Merit System would be retained; that current benefits and privileges would be honored and that compensation would be equal to that at the state level.

Twelve of the affected employees filed a complaint in the Circuit Court of Montgomery County seeking to enjoin the proposed transfers, and filed a motion for a temporary restraining order. Beasley filed a motion to dismiss, or in the alternative, a motion for summary judgment. The trial court denied the employee’s motion for TRO, and granted the motion for summary judgment. Only three employees are parties in this appeal.

The employees contend that the State DPS and each county DPS are statutorily two separate entities, and that Beasley did not have authority to order their transfer from the state level to the county level. Beasley, on the other hand, argues that she has authority under Title 38, Ch. 2, Code 1975. We agree with Beasley.

The various sections of Chapter 2 create an interdependent DPS consisting of one administrative unit — the state — and 67 field agencies — the county departments. Indeed, Section 38-2-6 provides:

“The aim of the state department shall be the promotion of a unified development of welfare activities and agencies of the state and of the local governments so that each agency and each governmental institution shall function as an integral part of a general system.”

While the county departments have some flexibility in their operations and administrative appointments they do not function as independent governmental entities as to staff and personnel. All county employees of DPS are state employees; they are under the state merit system; they have the same grades of compensation as state employees; and they enjoy all privileges and benefits as state employees.

Under § 38-2-6(6) the state DPS has the power to designate county departments as its agents under its rules and regulations to perform any of the state department functions. And, finally, § 38-2-3(d) provides:

“The commissioner shall interpret policies, rules and regulations formulated by the state board and shall have power, subject to the approval of the state board, to create within the state department such bureaus as are necessary for the effective operation of the public assistance program, and to allocate and reallocate functions among bureaus and departmental agencies.”

We hold that Commissioner Beasley had the statutory authority to transfer State DPS employees to the county level.

AFFIRMED.

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


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    A-1 BONDING COMPANY OF MONTGOMERY, INC., and D.R. Goolsby v. STATE of Alabama.
    Civ. 2571.
    Court of Civil Appeals of Alabama.
    June 17, 1981.
    Rehearing Denied Aug. 19, 1981.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BRADLEY, Judge.

This appeal is from a judgment forfeiting a bail bond.

Walter J. Maddox was arrested by a member of the Montgomery Police Department on January 27, 1980 for unlawfully possessing crystal methamphetamine in violation of §§ 20-2-1, -120, Code 1975. Preliminary hearing on this charge was set for March 5, 1980.

On February 29, 1980 Maddox as principal and A-l Bonding Company of Montgomery and D.R. Goolsby as sureties affixed their signatures to a $2,500 consolidated bail bond to assure the appearance of Maddox at the preliminary hearing set for March 5, 1980 or at the next session of the Montgomery County Circuit Court, there to await the action of the grand jury “and from session to session thereafter until discharged by law to answer to the charge of illegal possession of drugs.”

Maddox appeared at the preliminary hearing on March 6, 1980 and was bound over to the next session of the Montgomery County grand jury.

On March 6, 1980 Maddox was again arrested for illegal possession of drugs. On that same day Maddox and Thomas Lam-berth executed a bail bond for the second charge in the amount of $1,000 to require the appearance of Maddox at a preliminary hearing scheduled for March 21, 1980 or at the next session of the Montgomery Circuit Court, there to await the action of the grand jury until discharged by law. Appellants were not named as sureties on this bond.

On May 12, 1980 a Montgomery County grand jury indicted Maddox for unlawful possession of an amphetamine based on the January 27, 1980 arrest. A subsequent grand jury no-billed the charge resulting from the March 6, 1980 arrest. Trial was scheduled on the illegal possession of the amphetamines charge for June 23, 1980 but was reset for July 28, 1980. Although the record is silent as to when Maddox was arraigned on the charge made against him, it does show that he failed to appear for arraignment before the court.

On July 25, 1980, three days before Maddox was scheduled for trial on the criminal charge, the circuit court entered a conditional forfeiture of the bail bond against A-l Bonding Company for $2,500. A-l was ordered to show cause why the conditional judgment should not be made final. Subsequently, A-l and D.R. Goolsby were given until September 23, 1980 to respond to the show cause order. Appellants answered by saying that they were released on their obligation when Maddox was arrested on March 6, 1980 for the same charge. Goolsby answered individually by saying that he intended to sign the bond in a representative capacity, i.e. as an officer of A-l Bonding Company. After a hearing at which various documents and the testimony of the circuit court clerk were introduced, the circuit court ordered that the conditional forfeiture be made final against the appellants.

Appellants contend here (1) that they were discharged from liability on their bond when Maddox was arrested again on March 6,1980 and made a bond with new sureties; and (2) that Goolsby was not liable as surety because there was no evidence that he intended to incur personal liability.

As to appellants’ first contention, §§ 15-13-62 and 15-13-64 of the 1975 Code permit the sureties on a bail bond approved by a circuit court to exonerate themselves from liability for a default thereon by their principal at any time before a conditional forfeiture judgment is entered against them by surrendering the principal into the custody of the sheriff of the county .“in which the court is held, to which the [principal] is bound to appear or to which the trial has been removed.” Code 1975, § 15-13— 64. The sureties may surrender their principal to the county sheriff and thus discharge themselves from liability on their bond by turning over physical custody of the principal to the sheriff and either giving the sheriff the bond or a certified copy thereof or expressing to him in some other fashion their desire to be released as sureties on the bond. Jordan v. Knight, 250 Ala. 109, 35 So.2d 178 (1948); State v. Crosby, 114 Ala. 11, 22 So. 110 (1897).

Although appellants may have relinquished physical custody of Maddox to the Montgomery County sheriff, there is no evidence in the record from which we can conclude that they also gave the sheriff the bond or a certified copy thereof or in any way notified him of their desire to be released from their obligations as sureties on the bond. Hence, we cannot say that Maddox’s arrest on the second drug charge and his execution of a new bail bond ipso facto discharged appellants from liability on their bond. Nevertheless, we agree with Goolsby that the circuit court erred in holding him personally liable on the bond.

A bail bond is a contract. Swift v. Esdale, 293 Ala. 520, 306 So.2d 268 (1975). Our courts have consistently stated that an agent who signs a contract on behalf of his principal, whose identity is revealed in the contract, does not thereby subject himself to personal liability thereon unless it is clearly shown that he intended “to substitute or superadd his personal liability for or to that of his principal” when he executed the contract. Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972); see B & M Homes, Inc. v. Hogan, Ala., 376 So.2d 667 (1979); Chandler v. Hunter, Ala.Civ.App., 340 So.2d 818 (1976).

In the case at bar, both A-l and Goolsby affixed their signatures to Maddox’s first consolidated bail bond. In appellants’ answer to the circuit court’s show cause order of September 18, 1980, Goolsby stated that “[t]he bail bond in the subject case was intended to have been issued by A-l Bonding Company of Montgomery, Inc., and executed by its President, D.R. Goolsby, and was not intended to be executed by D.R. Goolsby, individually as a surety.” Appellee never adduced any evidence in this case tending to contradict or rebut this statement. In the absence of such evidence we cannot agree with the circuit court that Goolsby clearly intended to become personally liable on Maddox’s first bail bond in the event of Maddox’s default thereon when he affixed his signature to it.

It follows that the circuit court’s order making its conditional forfeiture judgment of July 25, 1980 final against Goolsby is reversed and the cause is remanded to that court with directions to discharge Goolsby from liability on Maddox’s first consolidated bail bond. All other aspects of the order are affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

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

On Rehearing

BRADLEY, Judge.

In its application for rehearing, A-l Bonding Company contends that Maddox was arrested on March 6, 1980 for the same offense that he had been arrested for on January 27, 1980 and thus, on the authority of Matthews v. State, 92 Ala. 89, 9 So. 740 (1891), it was discharged as surety on the bond given for the first charge. In Matthews the supreme court said that when a sheriff accepts and approves an appearance bond for a defendant, his power to accept another bond for the same offense is exhausted unless the principal has been surrendered to the sheriff by the surety on the first bond.

A—1 says that the two charges placed against Maddox, one on January 27, 1980 and the other one on March 6, 1980, were for the same offense and, therefore, when Maddox was arrested on March 6, 1980 and made bond, A-l was automatically relieved as surety on the first undertaking.

The record in the present case shows that Maddox was arrested for having in his possession on January 27, 1980 at 11:30 a.m. crystal methamphetamine and that he was again arrested—this time on March 6, 1980 —for having in his possession on January 27, 1980 at 11:35 a.m. methamphetamine. Moreover, there is nothing in the record tending to show that these two arrests were for the same offense. This court is bound by the evidence set out in the record. White v. State, 262 Ala. 694, 81 So.2d 267 (1955); Wilger v. State Department of Pensions & Security, 390 So.2d 656 (Ala.Civ. App.1980). Consequently, since it appears from the record that Maddox was arrested for two different offenses, it follows that A—1 was not automatically relieved of liability on its bond when Maddox was arrested on March 6,1980 for possessing methamphetamine.

Opinion Extended.

APPLICATION FOR REHEARING OVERRULED.

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


author: ALMON, Justice.

text:
    Ex parte A-1 BONDING COMPANY OF MONTGOMERY, INC. (In re A-1 BONDING COMPANY OF MONTGOMERY, INC. and D.R. Goolsby v. STATE of Alabama).
    80-862.
    Supreme Court of Alabama.
    Sept. 10, 1982.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for petitioners.
    Charles A. Graddick, Atty. Gen. and Jane Brannon, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

The Court of Civil Appeals affirmed that part of a judgment of the Circuit Court of Montgomery County holding A — 1 Bonding Company liable as surety on an appearance bond. The Court of Civil Appeals reached its decision by concluding “there is nothing in the record tending to show that these two arrests were for the same offense.” For other pertinent facts, see the opinion of the Court of Civil Appeals, [Ms. June 17, 1981; Reh. Overruled, August 19, 1981] 420 So.2d 778 (Ala.Civ. App.1981).

A-l Bonding Company filed a petition for writ of certiorari in this Court, alleging facts not contained in the opinion of the Court of Civil Appeals, which could be construed as refuting the conclusion reached by that court. The proper use of Rule 39(k), A.R.A.P., allows this Court to review the record on appeal to determine whether the Court of Appeals has properly construed the record.

We have gone to the record and have reached the conclusion that there is evidence in the record tending, although not conclusively, to show that the two arrests were for the same offense. Moreover, it appears that the State in its original brief conceded this to be the case.

Under the circumstances we think the proper course to follow is to remand the cause to the circuit court to hold a hearing and determine whether the two arrests were for the same offense or not. If the arrests were for the same offense, then the circuit court should enter a judgment in favor of A-l Bonding Company. If they were not, then A-l Bonding Company would be bound to pay the original judgment.

If the State arrests a defendant a second time for the same offense and requires another appearance bond for his release, we know of no reason in law why the sureties on the first bond would not be exonerated by operation of law. There is no provision in law to require two appearance bonds for the same offense charged.

It is therefore the order of this Court that this cause be remanded to the Court of Civil Appeals with instructions to remand to the circuit court for a hearing to resolve the factual issue herein referred to.

REMANDED WITH INSTRUCTIONS.

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


author: BRADLEY, Judge.

text:
    A-1 BONDING COMPANY OF MONTGOMERY, INC., and D.R. Goolsby v. STATE of Alabama.
    Civ. 2571.
    Oct. 6, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, 420 So.2d 781, it is considered that in accordance with the opinion rendered by the supreme court on September 10, 1982 in this matter, the above-styled cause should be remanded to the Circuit Court of Montgomery County for it to hold a hearing to determine if the two arrests were for the same offense. If so, the circuit court is directed to enter a judgment for A — 1 Bonding Company. If the arrests were for two separate and distinct offenses, the circuit court will order A-l Bonding Company to pay the original judgment.

REMANDED WITH INSTRUCTIONS.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    Brenda Kay Johnson SIMPSON v. Willie Glenn GIBSON and Peggy Gibson.
    Civ. 3341.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.
    Rehearing Denied Oct. 6, 1982.

      Jerry L. Cruse of Smith, Cruse & Perdue, Montgomery, for appellant.
    Frank H. Hawthorne of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Montgomery, for appellees.
   HOLMES, Judge.

This is a child custody case.

The mother sought modification of a pri- or decree awarding custody of her minor child to the maternal grandparents. After an ore tenus hearing the trial court refused to modify its prior decree. The mother appeals, and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in taking the aforesaid action. As indicated, we find no abuse of discretion requiring reversal, and affirm.

We do not deem it necessary to set out in detail the facts. The following is pertinently revealed from the record.

The natural parents, Brenda Kay Johnson Simpson, the appellant, and her former husband, Paul Johnson, divorced on January 4, 1977, when their minor child was two years old. No provision was made regarding custody. The mother later signed an agreement with her parents, the appellees, to the effect that the permanent care, custody and control of the child was awarded to the grandparents. On September 26, 1977, the trial court incorporated the agreement into its decree and granted the grandparents the care, custody and control of the child.

In September, 1980, the mother filed a modification petition seeking the custody of her child. After a hearing, the trial court held there had been no material or substantial change in circumstances proven nor was it in the best interest of the minor child to change custody.

In June, 1981, the mother filed another petition to modify the custody decrees. The trial court, upon consideration of all the evidence, found it was in the best interest of the child to remain in the custody of her grandparents. From this decision, the mother appeals.

At the onset, we note the well-established legal principle that the trial judge who hears the evidence óre tenus is in the best position to ascertain whether there has been a change in circumstances which requires a custodial change, and he will not be reversed on appeal save for plain and palpable error and abuse of discretion. E.g., Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981). The reviewing court can not substitute its judgment for that of the trial court if there is any reasonable inference presented from the evidence that the trial court’s decree was correct. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976).

The evidence indicates that the child has lived with her maternal grandparents since her parents’ divorce with the exception of a few months. She is apparently a happy, well-adjusted child who loves and is loved by her grandparents. To a large degree, she is and has been supported by her grandparents. Evidence indicates the grandparents are good people, and no one seriously contends otherwise. Furthermore, within the current arrangement, the child and her mother still enjoy a good relationship, and the child looks forward to her mother’s visits.

We further note that although a natural parent has a prima facie right to custody of his or her child, such a right may be forfeited. And the mere fact that the natural parent is fit, though certainly a factor for consideration, does not automatically entitle the natural parent to custody of the child since the best interest and welfare of the child are of paramount importance. Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977). Furthermore, a prior award of custody to someone other than the natural parent rebuts any presumption which favors the natural parent, and places on the natural parent the burden of proving that a change in custody is necessary to promote the child’s best interests. Willette v. Bannister, supra.

The mother remarried in April, 1980. Her claim of changed circumstances is based in large part upon her improved conditions in that she is now married; is now fully qualified as a long haul truck driver and can provide economically for the child; that her husband has a substantial income, and the two of them have established a home and resided there approximately two years. For eight months prior to the hearing, she has been a full-time housewife.

We note, however, that the improved circumstances of the mother are not controlling upon the court in absence of evidence of existing detrimental circumstances of the child indicating a need for a change of custody. Davis v. Davis, 365 So.2d 80 (Ala.Civ.App.1978). No serious allegation was made that any such detrimental circumstance of the child existed at the time of the hearing.

We observe, finally, that the question of child custody is never res judicata. Dale County Department of Pensions and Security v. Robles, 368 So.2d 39 (Ala.Civ.App.1979). At this time, however, there is no indication that the trial court abused its discretion in refusing to modify the custody decree and this case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.

ON REHEARING

HOLMES, Judge.

In an application for rehearing, the appellant-mother through able counsel directs us to Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980), contending we have, in effect, overruled Pendergrass. We have not overruled Pendergrass as there are important factual distinctions between the instant case and Pendergrass. Aside from the procedural differences in Pendergrass, the mother who ultimately regained custody had, at all times, a court decree awarding her custody. The non-parental couple who had physical custody and contested the mother for legal custody had only cared for the child for three months. In the instant case, the mother does not have a court award of custody, and the grandparents who have both legal and physical custody of the child have cared for her a number of years.

Despite those differences, appellant-mother’s point in citing Pendergrass on rehearing is well-taken. In Pendergrass, we considered “the desirability and societal importance of re-establishing a permanent family.” Pendergrass v. Watkins, supra, at 855. Furthermore, this court specifically considered “that the right to maintain family integrity is a fundamental right protected by due process standards of the Constitution . .. . ” Pendergrass v. Watkins, supra, at 854.

In the instant case, the desirability of reestablishing a permanent family unit was not in our original opinion articulated as a factor. We recognize such a factor is relevant in appropriate cases in determining the best interest of the child. However, we cannot in this instance, at this time, say that the trial court abused its discretion or was palpably wrong in its action. We reiterate that the reviewing court cannot substitute its judgment for that of the trial court if there is any reasonable inference presented from the evidence that the trial court’s decree was correct. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976).

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

WRIGHT, P.J., and BRADLEY, J., concur.


text:
    Charlene H. BALDWIN v. Hardin H. BALDWIN.
    Civ. 3120.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    C. Delaine Mountain of Mountain & Ne-well, Tuscaloosa, and W.O. Kirk, Jr., of Curry & Kirk, Carrollton, for appellant.
    John A. Owens, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellee.
   BRADLEY, Judge.

This is a divorce case.

Charlene H. Baldwin and Hardin H. Baldwin were married June 5,1941. Since 1945 the couple has resided on approximately two hundred forty acres of land that Hardin H. Baldwin and his brother inherited. Title to this Pickens County property has been in the Baldwin family since 1837. Hardin Baldwin eventually bought his brother’s interest in the land.

Four children were born of this marriage. All are now adults and living away from the Baldwin property.

Mr. Baldwin worked as a rural mail carrier from 1936 until his retirement in 1975. He is currently receiving retirement benefits from the United States Postal Service and the Veterans Administration. This is substantially all the income he receives. Charlene H. Baldwin was employed outside the home for only nine months of her married life. In 1972 she inherited an undivided one-half interest, subject to a life estate, in approximately eight hundred acres of land in Sumter County. Her interest became possessory in 1974. From a gravel mining operation on this land, the wife receives approximately $5,000 income annually-

In May 1981 Charlene H. Baldwin filed a complaint for divorce alleging, among other things, irretrievable breakdown of the marriage and incompatibility of temperament. A temporary restraining order was also filed and granted, giving possession of the Baldwin home to the wife. Hardin Baldwin counterclaimed for a divorce also on the ground of irretrievable breakdown of the marriage and alleged that the wife was primarily responsible for the separation.

At the trial, evidence was introduced concerning both parties’ financial conditions and each party’s activities that led to the breakdown of the relationship. Real estate appraisers gave testimony as to the value of each party’s real property. The value of the wife’s property as reflected by the evidence greatly exceeded the value of the husband’s property.

In its final decree the trial court found that the wife’s conduct contributed substantially to the breakdown of the marriage and that the wife’s estate greatly exceeded in value the husband’s estate, and that the wife’s property had a greater income potential than the husband’s property. The court specifically stated that it was taking these factors into consideration in dividing the parties’ property and in awarding alimony. The court then ordered that each party retain the property that he or she had inherited and then divided the personal property based mainly on which party had acquired and used the property. In addition, the husband was ordered to pay the wife $400 a month as periodic alimony.

In brief the wife argues that the trial court erred in its property division and award of alimony because it took into consideration the property the wife had inherited, and by so doing, the trial court misinterpreted section 30-2-51, Code 1975, which is as follows:

“If either spouse has no separate estate or if it be insufficient for the maintenance of such spouse, the judge, upon granting a divorce, at his discretion, may order to such spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family; provided, however, that the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.”

In support of this argument, Mrs. Baldwin says that her property should not have been considered by the trial court in the property division and alimony award because her property had not been used “regularly for the common benefit of the parties during their marriage.”

In construing section 30-2-51 we said in Lewis v. Lewis, 416 So.2d 755 (Ala.Civ.App.1982) that:

“The first portion of this provision indicates that alimony is to be awarded to one spouse out of the estate of the other spouse only if the spouse requesting alimony has no separate estate, or if that spouse’s separate estate is insufficient for his or her maintenance. Clearly, then, in order for the trial court to determine whether alimony is to be awarded in any given situation, the separate estate, if any, of the spouse requesting alimony must be taken into consideration. The language of the statute providing that the trial court may not take into account a spouse’s separate property unless it ‘has been used regularly for the common benefit of the parties during their marriage,’ ... applies only to the court’s consideration of the estate of the spouse who is expected to pay alimony.
“Thus, the separate estate of the spouse requesting alimony may, without exception, be taken into consideration in determining whether that spouse should receive an award of alimony.” (Citations omitted.)

Mrs. Baldwin had requested alimony and a property division in her complaint. Such request clearly presupposes that the requested awards will be paid out of the husband’s estate. Based on Lewis, we conclude that the trial court did not err in its alimony award and property division when it considered the value and income potential of the wife’s inherited property. We further observe that the division of property and award of alimony is within the sound discretion of the trial court and such action will not be overturned absent a showing of plain and palpable abuse of that discretion. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). No such abuse of discretion has been found in the case record.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J„ concur.


text:
    John W. HARTLEY v. David DANIEL.
    Civ. 3250.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellant.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves a partnership accounting after its dissolution.

Following an ore tenus nonjury hearing, the trial court rendered its judgment in favor of Mr. Hartley, who appealed to this court, where he has raised questions as to the inadequacy of the monetary award to him and as to his being required to pay a particular debt. Factual questions are involved as to both of those complaints. We have diligently studied a fine brief filed on behalf of Mr. Hartley as well as having read the entire record on appeal.

When the trial court hears the witnesses testify, a favorable presumption arises as to that court’s factual findings and an appellate court may not disturb such a holding unless the trial court’s decision was not supported by the evidence or unless it was palpably wrong. Jackson v. Waller, 410 So.2d 98 (Ala.Civ.App.1982); Brett v. Zodiac Industries, Inc., 409 So.2d 451 (Ala.Civ.App.1982). Here, the circuit court could, have ascertained from the evidence and reasonable inferences therefrom that the specified debt, which Mr. Hartley was ordered to pay, was not owed by the partnership itself but that it was the sole individual indebtedness of Mr. Hartley. The amount of the award to Mr. Hartley of $2,070 was well within the range of the disputed testimony of the partners, which varied from less than $500 to more than $5,000 as being due from Mr. Daniel. The evidence was supportive of the final judgment. The circuit court was not clearly wrong. Thus, we are required to affirm the judgment appealed from.

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 section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    C & S CONSTRUCTION CO., INC. v. Tom MARTIN and Carol Martin.
    Civ. 3306.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    Melvin W. Brunson of Thiry, Maples & Brunson, Mobile, for appellant.
    Joseph J. Boswell, Mobile, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This ease involves two civil cases for the same cause of action which were pending at the same time against the same defendants, the Martins.

C & S Construction Company, the plaintiff, first sued the Martins in the district court. Subsequently, it filed in the circuit court a second civil action against them for the same transaction. The Martins moved to dismiss the circuit court case, which motion was grounded upon the following code provision:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.”

§ 6-5-440, Code of Alabama 1975.

Later, the district court complaint was voluntarily dismissed, without prejudice by the district court, upon motion of the plaintiff’s attorney. Several months thereafter the circuit court, in substance, granted the Martins’ motion to dismiss the circuit court case.

The most recent supreme court decision upon this subject states:

“In this jurisdiction the rule is that a motion to dismiss (formerly a plea in abatement) will be granted where defendant moves to dismiss plaintiff’s second action for the same cause, even though plaintiff dismissed his first action after the motion to dismiss was filed. Ford v. Bowden, 243 Ala. 334, 9 So.2d 906 (1942)”

Terrell v. City of Bessemer, 406 So.2d 337, 340 (Ala.1981).

The plaintiff here argues that courts should stop searching for justification for that rule and change their interpretation thereof to a rule of reason as originally intended by the statute. Be that as it may, this court does not possess the authority to overrule any decisions of the supreme court, whose decisions govern the holdings of the courts of appeal. Jones v. City of Huntsville, 288 Ala. 242, 259 So.2d 288 (1972); § 12-3-16, Code of Alabama 1975. We are bound to follow the most recent decision of "the supreme court as reiterated by the Terrell case, supra.

Jurisdiction was invoked over the cause of action by the filing of the initial complaint in the district court. Therein, the plaintiff sued for $5,000 and interest, which exceeded the $5,000 jurisdictional limit in the district court. § 12-12-30, Code of Alabama 1975. Viable solutions were available to the plaintiff. It could have amended the district court complaint so as not to exceed the jurisdictional monetary limit of the district court, and, thereafter, if an appeal was taken to the circuit court by either party from a district court final judgment, the last two sentences of Rule 13(j), A.R.Civ.P., would have applied regarding any limits on the amount of the recovery which the plaintiff could then claim and obtain. Harper v. Regency Development Co., 399 So.2d 248, 254 (Ala.1981); Hardy v. Tabor, 369 So.2d 559 (Ala.Civ.App.), cert. denied, 369 So.2d 561 (Ala.1979). Or the plaintiff could have first dismissed the district court case and thereafter filed its action anew in the circuit court so as not to conflict with any current judicial interpretation of § 6-5-440, supra.

However, the procedure which was followed by the plaintiff violated the Alabama rule as was most recently re-echoed in Terrell, supra, and we must affirm the action of the circuit court in dismissing the plaintiff’s civil action in that court.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Emmett Terry BEST v. Velma Kay BEST.
    Civ. 3314.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    J. Richard Piel, Montgomery, for appellant.
    Von G. Memory, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal from an order modifying the divorce decree granting a divorce to Emmett Terry Best and Velma Kay Best on November 19, 1975. Appellant contends that the trial court erred by abusing its discretion: (1) in awarding custody of his minor daughter to his ex-wife; and (2) in ignoring the desire and request of the minor daughter to live with her father (appellant). We have carefully reviewed the record in this case; and find nothing in the facts of precedential value. We also find no abuse of discretion, and summarily affirm based on Garrison v. Kesek, 406 So.2d 953 (Ala.Civ.App.1981) and Cooper v. Cooper, 382 So.2d 569 (Ala.Civ.App.1980).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    In the Matter of Pamela SANDERS, Brandon Sanders, Tammy Sanders, and Kiley Sanders.
    Civ. 3337.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.

      Robert Childers of Turner, Wilson, Christian & Dorrough, Montgomery, for appellant.
    J. Cliff Heard of Jordan & Heard, Montgomery, for appellee.
   HOLMES, Judge.

The Circuit Court of Montgomery County after an ore tenus hearing terminated the parental rights of the father regarding his four children.

The father appeals from the action of the Montgomery County Circuit Court and we affirm.

The dispositive issue on appeal is whether there is sufficient evidence to support the order terminating the father’s parental rights. Put another way, is the evidence “clear and convincing” that the best interest of the children would be served by terminating the father’s parental rights. As indicated, we find such evidence and affirm.

Viewing the record with the attendant presumptions accorded the circuit court’s action, the following is revealed.

The father, on February 23, 1981, pled guilty to the August, 1981, murder of his wife, and was sentenced to fifty years. Two of the couple’s four children were present in the house, though not in the room, at the time the father beat his wife so severely she later died.

The father has a history of violent and abusive treatment toward his family. At least two abuse reports were filed with the Department of Pensions and Security. The mother at one point took the children with her to a domestic abuse shelter. She sought legal help in obtaining a restraining order and divorce. Before the mother’s death, the Department of Pensions and Security investigated the home and found it in a neglected condition. They also found the children had head lice.

The father admits abusing his wife, and he admits he has a serious drinking problem. There are allegations the father abused at least two of the children. On one occasion one child was taken to the hospital after allegedly being thrown across the room by the father.

The children, ages eight, five, three and one at the time of the trial, are currently in the care and custody of Mr. and Mrs. Morgan, distant cousins. The record is replete with evidence of the exemplary character of the Morgans. The children are well-adjusted and involved in their new home. Even the father acknowledges the Morgans are providing a good home for the children.

A Department of Pensions and Security social worker testified she recommended permanent custody be awarded to the Morgans. The children need a “sense of permanency,” the social worker testified.

Such evidence in the record supports the order terminating the father’s parental rights under the governing legal principles set forth in Ely v. Casteel, 341 So.2d 730, 734 (Ala.Civ.App.1977), which are:

“[T]he natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interest and welfare of the child are controlling .... ”

To terminate the father’s parental rights there must be clear and convincing evidence that terminating his rights would be in the best interest of the children. Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979), writ quashed, 374 So.2d 1378 (Ala.1979). See also Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981), cert. denied, 410 So.2d 426 (Ala.1982). The trial court’s judgment in termination of parental rights cases is reviewed under the ore tenus rule. On appeal that judgment will be given every favorable presumption and will not be disturbed unless palpably wrong. Phillips v. Alabama Department of Pensions and Se curity, 394 So.2d 51 (Ala.Civ.App.1981); Smith v. State Department of Pensions and Security, 340 So.2d 34 (Ala.Civ.App.1976).

After carefully considering the record in this case, this court finds the evidence to be “clear and convincing” that the best interest of the four minor children was met by the circuit court’s action in terminating the father’s parental rights. In particular we note the troubled history of the father’s violence and abusive behavior toward his family which was compounded by his drinking. His past attempts at rehabilitation have been, at best, only temporarily successful. We also specifically note that two of the children were in the house when the father beat their mother so severely she later died.

The past physical and emotional abuse of the children are important considerations in terminating the father’s parental rights. See Miller v. Alabama Department of Pensions and Security, supra. The children’s need for a sense of permanency is also an important consideration.

Furthermore, in seeking permanent termination of a parent’s right, the existence of a viable alternative to better serve the future welfare of the children should be established. Glover v. Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981). In the instant case we clearly have a viable alternative in the Morgans who have opened their home to these four children, and who would like to continue to care for them.

It is clear to this court in the instant appeal that the evidence meets the “clear and convincing” standard required by law, Miller v. Alabama Department of Pensions and Security, supra, and that termination of the father’s parental rights is in the best interest of the children. We therefore affirm.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.