text:
    Glenn WILSON v. Willie James LEE.
    Civ. 2803-X.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.

      Frank J. Tipler, Jr., of Tipler, Fuller & Sikes, Andalusia, for appellant.
    Jerry E. Stokes, Andalusia, for appellee.
   BRADLEY, Judge.

Defendant, Glenn Wilson, appeals from the grant of a summary judgment in favor of plaintiff, Willie James Lee, in an action to enforce a Florida workmen’s compensation judgment. Willie James Lee cross-appeals from that same judgment because the summary judgment was not for the full amount of the Florida judgment.

Glenn Wilson, an Alabama resident, entered into a contract in the state of Florida with Fleming Lumber Co., Inc., to cut timber on land located in Florida. Fleming agreed to withhold part of Wilson’s money and pay it to Wilson’s workmen’s compensation insurer. There is no dispute over whether this money was paid to the insurer even though the insurer was never a party to the suit. As a result of this contract, Wilson began cutting timber in Florida at which time Willie James Lee, an employee, was injured while at work.

A claim for workmen’s compensation was filed in Florida against both Fleming and Wilson since there was a dispute as to which party was the employer under Florida law. Wilson, through his attorney, agreed to pay Lee $1,000.00 if he would release him from any and all claims. As part of the agreement, Wilson agreed that he would aid Lee in his proceeding against Fleming for further compensation. Even though Lee signed the release, the Florida court refused to release Wilson as a defendant in Lee’s suit. Wilson claims that he was never served with a copy of the complaint against him and had no knowledge that he was still a party to the suit. However, Wilson’s attorney filed a motion to dismiss on the ground that he had not been properly served and the court lacked jurisdiction over him. He also filed an answer in the Florida proceeding alleging that he had been released from the proceedings. The attorney also wrote the Florida judge a letter stating that Wilson could not afford to attend the hearing and that the release should bar any action against Wilson.

The Florida court found that it did have jurisdiction over Wilson, because Wilson had actual notice of the proceedings. It also found that the release was not valid under Florida law. As a result, judgment was rendered against Wilson. In said judgment the court found that Wilson and not Fleming was the employer.

On August 2, 1979 Lee filed suit in the Circuit Court of Covington County, Alabama to collect the judgment rendered in Florida. Wilson answered that the judgment was invalid because he was not given proper notice of the Florida proceedings. Wilson also joined Fleming as a third-party defendant. The trial judge later severed the third-party claim from the claim by Lee against Wilson.

Lee filed a motion for summary judgment offering the Florida judgment and the Florida documents as evidence. Wilson again objected on the grounds of lack of notice. The trial judge, however, granted a summary judgment but failed to include the Florida court’s award of attorney fees to Lee in the summary judgment. As a result, Wilson appeals to this court and Lee cross-appeals for the attorney fees awarded by the Florida court.

Three issues are raised in this appeal. The first issue is whether the grant of a summary judgment by the trial court was correct in light of the dispute over whether Florida had jurisdiction over the parties. The second issue is whether the trial judge could properly sever for the purpose of trial Glenn Wilson’s third-party claim from the main claim. The third issue arises out of Lee’s cross-appeal and raises the issue of whether the trial judge should have awarded Lee attorney fees as per the Florida judgment. We will address these issues seriatim.

Under Alabama law a trial court can grant a summary judgment when there is no genuine issue of material fact, and, as a matter of law, the moving party is entitled to the relief sought. Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). The moving party, however, must show that the other party could not recover under any discernible circumstance and that there is an absence of a genuine issue of material fact. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). In determining whether the grant of summary judgment was proper, we must look at the facts in a light most favorable to the non-moving party.

Wilson claims that there are two material issues in dispute which should have precluded the grant of summary judgment. First he claims that an issue exists as to whether he received proper notice of the Florida proceeding, and second he claims that he had a release which should have barred Lee’s claim in Florida.

As to Wilson’s second claim of why the summary judgment was erroneously granted, i.e. the release signed by Lee barred any claim Lee might have had against Wilson, we consider it to be without merit.

A judgment of a court of competent jurisdiction rendered on the merits is conclusive of all issues. Educators’ Investment Corporation of Alabama, Inc. v. Autrey, 383 So.2d 536 (Ala.1980); McCormick v. McCormick, 221 Ala. 606, 130 So. 226 (1930). The Florida court considered the issue of the release, as well as all other issues presented to it, and held that it was unacceptable because it failed to satisfy Florida law, i.e. F.S. 440.20(10). Hence, we conclude that the Florida court’s decision on the release is res judicata on this issue and, therefore, could not be relitigated in Alabama.

Wilson’s claim that he was not properly served with notice of the Florida proceedings presents a different problem.

The full faith and credit clause of the United States Constitution generally requires every state to give to a judgment at least the res judicata effect which the judgment would be accorded in the state which rendered it. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). Before giving effect to a foreign judgment, Alabama has concluded that it may inquire into the jurisdiction of the foreign court whose judgment is sought to be enforced. Monarch Refrigerating Co. v. Faulk, 228 Ala. 554, 155 So. 74 (1934). The United States Supreme Court, however, has delineated the scope of such an inquiry. Durfee v. Duke, supra. The resulting rule requires the second court to give full faith and credit to the judgment of the first court — even as to questions of jurisdiction — if the second court has determined by proper inquiry that the questions of jurisdiction were fully and fairly litigated and finally decided in the court that rendered the original judgment. Durfee v. Duke, supra.

It is undisputed in this case that Wilson filed an answer and a motion to dismiss wherein he raised the question of personal jurisdiction. It is also undisputed that the Florida court found as a fact that Wilson had actual knowledge of the proceedings then pending against him and that it had personal jurisdiction over Wilson. Where one makes an appearance in one state contesting an issue and a final judgment is rendered on that issue, then he cannot later contest that same issue in another state. Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931); Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151 (5th Cir. 1974). By appearing in the Florida court through his answer and motion to dismiss, Wilson subjected himself to its jurisdiction. Florida, therefore, had the authority to determine whether Wilson had proper notice of its proceedings. Consequently, the Alabama court must give the Florida judgment full faith and credit because it was res judicata on the issue of notice.

Since the Florida judgment is res judica-ta, there is not a material issue left in dispute. As a result, the grant of a summary judgment was proper.

Wilson also contends that the trial judge improperly severed his third-party claim from the main claim. Under ARCP 20(b) and 42(b) the trial judge is given wide discretion in ordering separate trials to prevent unfair prejudice. There is no indication that the trial judge has abused his discretion in this case, and thus his decision to sever must be upheld.

Lee has cross-appealed contending that the trial judge erred in not awarding him the attorney fees which were given him under the Florida decree. Having found that the grant of a summary judgment was proper, it is clear that the Florida judgment must be enforced in its entirety. The full faith and credit clause clearly dictates that a valid judgment of a sister state must be given complete respect. Hazen Research, Inc. v. Omega Minerals, Inc., supra. As a result we find that Lee is entitled to the attorney fees as awarded by the Florida decree.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR ENTRY OF JUDGMENT CONSISTENT WITH THIS OPINION.

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


source: Caselaw Access Project

license: Public Domain

text:
    Meatrice DYE v. Marvin DYE.
    Civ. 2814.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.
    D. Bruce McLean, Enterprise, for appellant.
    No brief filed, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In this divorce case the current issues involve: (1) the division of property and alimony in gross, (2) attorney’s fees and (3) proceedings in forma pauperis on appeal.

(1)

Certain well-known rules govern our review of this matter. Since the trial court personally heard this contested case, there is a presumption which favors the correctness of that court’s judgment if credible evidence supports it. Chernau v. Chernau, 396 So.2d 1061 (Ala.Civ.App.1981); Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205 (1961). The division of property and alimony in gross are matters that fall within the sound discretion of the trial court and will not be disturbed upon appeal except for a palpable abuse of that discretion. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980); Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980).

The wife was awarded her 1974 Chevrolet automobile, while the husband received his 1971 Datsun. Each party obtained their personal effects. There is no controversy over the disposition of those items. The contest is over the trial court’s order that the mobile home of the parties be sold and its proceeds divided equally between the parties; and the wife further complains that nothing was mentioned in the judgment about two bank accounts. The above listed items constituted substantially all of their assets.

We look to the evidence to observe if the testimony supports the judgment and summarize herein only such favorable testimony.

The parties married in 1969 and have no children by their union. They own no real property. The wife now resides primarily with her mother, who is almost an invalid, requiring constant care.

The mobile home is, and has been, located on her mother’s property. The 1970 model, 12' X 44', mobile home was purchased by them in 1969 for $6,100. Title to it is in their joint names and they jointly paid the $400 down payment. The husband expended $100 for its being moved to, and set up on, their site. He spent over $1,000 for a shed at the mobile home.

Both parties worked and their wages were applied to their living expenses. Generally, their paying habits evolved whereby the wife paid for the utilities and mobile home payments while the husband provided the grocery money. The husband purchased in full an air conditioner for the trailer and each bought some furniture for that dwelling. Since the marriage, he bought one car and she two.

The wife is now receiving a social security payment of $235 each month because of a disability. The husband’s total monthly income of almost $400 presently consists entirely of a check from social security and a disability payment from the Veterans Administration.

Before they married, he had accumulated some money through raising hogs. Those proceeds, and some additional personal funds of one of his daughters, were deposited in a savings account which totaled $10,-000. At one time, the wife’s name appeared on that account although she had not contributed any amount to that particular account. The husband changed that savings account into the names of his two daughters. Also, he withdrew $500 from a checking account and left a balance of $1,000 therein for the wife. The wife also has around $2,700 somewhere that she received through a “backtime” check. At trial time, all of the funds which the husband possessed consisted of his pocket money of $15.00.

Thé evidence clearly supported the judgment of the circuit court pertaining to the disposition of the mobile home and the failure to award to the wife any portion of that savings account or of the $500 withdrawn by him from the checking account. We find no abuse of discretion as to those matters.

(2)

No evidence was introduced in the trial court as to the reasonable value of the legal services of the wife’s attorney. Accordingly, we may not reverse that court for not awarding an attorney’s fee to the wife in the absence of such evidence. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). In any event, the trial court did not abuse its discretion in not allowing such fees to the wife.

(3)

The wife filed in the trial court a motion and affidavit to be allowed to proceed on appeal in forma pauperis pursuant to A.R.A.P. rule 24(a). The trial court denied the motion, which action of that court is argued by the wife in the appeal proper as being error. That rule further provides that, where the trial court denies such a motion, a “motion for leave so to proceed may be filed in the appellate court within 28 days (4 weeks) after service of notice of the action of the trial court.” Such a motion, with the required accompanying documents, was not filed in this court in this case. The proper procedure for obtaining leave to proceed in forma pauperis on appeal not having been followed, the wife’s present complaint in the appeal proper as to that issue will not be considered. Field v. Field, 382 So.2d 1132 (Ala.Civ.App.1980).

We affirm.

The appellant’s application for an attorney’s fee in this court is denied.

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

AFFIRMED.

All the judges concur.


text:
    Hubert Terry JACKSON v. Sondra Lynn JACKSON.
    Civ. 2823.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.
    Kermit Mac Downs, Gadsden, for appellant.
    Rowan S. Bone and Edward Cunningham, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The husband appeals and questions whether the trial court abused its discretion by requiring the husband to pay an excessive total amount per month under the various terms of the judgment. He especially complains about being required to make mortgage payments upon a house.

The record, viewed with the attendant presumptions, reveals the following facts which are pertinent to the present problem:

The husband is a staff sergeant in the Air Force. As of the first part of March 1981 he was assigned to Korea for a tour of duty of twelve months. His net pay then became $640 per month. He testified that such pay is clear of all expenses. In Korea, the Air Force furnishes to him his food, clothing, housing, medical, dental and drug needs.

In April 1980 they had assumed payments on a house from his father, with title being taken in the husband’s name. Before the divorce and during their separation, he had been making the following monthly payments: $118 on the house mortgage, $90 on the debt on the wife’s Pinto car and $28 installments on a vacuum cleaner. He also paid $25 per week as child support.

The wife works at a restaurant and nets $50 weekly. They have a two-year-old son, and, without contradiction, she testified that $35 per week would be reasonable support for the child. She owed $70 on an electric bill and $64 for gas.

They own their furniture and two cars, the Pinto and an old Cadillac. His motorcycle and the Cadillac are free of debt and he expressed an intent to sell them before embarking for Korea.

After an ore tenus trial in January 1981, the trial court divorced the parties; awarded custody of the son to the wife; granted to the wife the furniture, the Pinto automobile and a one-half interest in the house, with the wife and child being granted the exclusive right to occupy the house until the wife remarries or the child becomes of age or self supporting, at which time the property would be sold and the proceeds divided equally between the husband and the wife; and ordered the husband to pay the utility bills, the wife’s attorney’s fee of $400 and the court costs. Additionally, he, in substance, was ordered to pay the following amounts:

(1) $35 per week for child support;
(2) $90 per month on her Pinto automobile debt, the last payment being due around January 1982;
(3) $118 per month for house mortgage payments; and
(4) $26 per month on the vacuum cleaner, the last installment being due about June 1982.

The division of property, the award of alimony and the amount of child support are interrelated, and, of necessity, are matters within the sound discretion of the trial judge. Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980). The question here is whether there was an abuse of discretion with regard to the total amounts which the husband is ordered to pay.

Except that he is now ordered to pay $10 per week more for child support, the payments numbered (1) through (4) are identical to the payments being made by the husband prior to the divorce. As to the house payments, the husband testified that he could pay them, but that it would be fairer for each party to pay one-half of them.

At this time his monthly payments total $385, but any hardship will be shortly somewhat alleviated, for in January 1982 his payments will be reduced to $295 after the last Pinto car installment is duly made. A further reduction to $269 per month will occur in June 1982 when the vacuum cleaner debt is fully paid. After June 1982, the payments will be for child support and upon the house mortgage. The mortgage payments will cease when one of the stated contingencies occurs and the house is sold. One-half of those payments on the house indebtedness inure to his benefit since he is now a co-equal owner of the house. From the judgment, it is clear that the trial court intended that the house be utilized as a residence for the child as well as for the wife.

The well-known ore terms rule applies. While it may be temporarily liberal or generous, we do not find the judgment of the trial court to be palpably wrong. Neither does it constitute an abuse of judicial discretion. We affirm.

The wife’s request for an award of an attorney’s fee on appeal is granted in the amount of $300.

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

AFFIRMED.

All the Judges concur.


text:
    Willie Edgar FLOYD v. HEADLAND NATIONAL BANK.
    Civ. 2843.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.
    Willie Edgar Floyd, pro se.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil action to recover the proceeds of a bank account.

Initially, Mr. Floyd filed his action in the small claims court, and, after a trial, a judgment was there entered which was favorable to the bank. He duly appealed to the circuit court, where the jury’s verdict, likewise, was against him. He seasonably took the present appeal. Both parties represented themselves in the trial courts as well as on this appeal.

After a thorough study of Mr. Floyd’s brief and of the record on appeal, we have experienced much difficulty in comprehending what legal issues have been presented for this court’s decision. He mentions fraud, trust, negligence and equity, which are matters outside of issues raised either by the pleadings or by the trial. The case was, simply stated, an action on an account. We infer that one of his complaints is that the jury verdict was wrong.

Since no post-trial motions were filed, we may not review the sufficiency of the evidence nor its weight. Deatherage v. Walker, 387 So.2d 845 (Ala.Civ.App.1980). The fact that Mr. Floyd is a layman who elected to represent himself does not excuse the total absence of such a motion. As to that issue we must affirm; however, we make the following observations out of deference to Mr. Floyd’s sincerity.

A verdict of a jury is presumed to be correct and it will not be disturbed on appeal unless it is clearly wrong or unjust. Freeman v. Turner, 374 So.2d 354 (Ala.Civ.App.1979); Nationwide Mutual Insurance Co. v. Herren, 362 So.2d 253 (Ala.Civ.App.1978), cert. denied, 362 So.2d 256 (Ala.1978). We assure Mr. Floyd that we have carefully read and reviewed all of the evidence which was presented to the trial jury, and we cannot say that they were legally wrong or lawfully unjust in their verdict to any extent.

The trial court did not err in any of its rulings at the trial.

We have reviewed each of Mr. Floyd’s contentions as we understand them, and, finding no error, we affirm.

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

AFFIRMED.

All the Judges concur.


author: EDWARD N. SCRUGGS, Retired Circuit Judge. HOLMES, Judge

text:
    STATE of Alabama v. NELSON BROTHERS, INC.
    Civ. 2863.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson and B. Frank Loeb, Asst. Attys. Gen., for appellant.
    Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal by the state is from a judgment holding that certain explosive magazines and anfo bins used in the strip mining of coal were subject to a use tax of V/2% rather than 4% as assessed by the Revenue Department. The appellee shall be referred to as the taxpayer.

The taxpayer manufactures anfo and also sells and distributes high explosives and detonators primarily to operators of coal strip mines, who utilize the explosives to break and loosen up the overburden over the coal to enable its removal with draglines and mechanical shovels. There is no profitable method now used for dispelling that overburden without the use of blasting tools. Explosives, and their use, are controlled by and are under the regulations of the Bureau of Alcohol, Tobacco and Firearms of the United States (A.T.F.).

Anfo is in pellet form and is composed of a mixture of ammonium nitrate and fuel oil. It is used as an oxidizer, the primary explosive, in blastings. Being a non-cap sensitive product, anfo requires a booster consisting of any type of dynamite or high explosive in order that it may be detonated. The booster, however, must first be exploded by a cap, cord or other detonator.

By A.T.F. laws and regulations, two magazines are required to be kept on the “mine permitted property,” one for boosters and the other for detonators. Those regulations require that the magazines be constructed of Vi inch steel with a non-sparking hardwood lining and with no exposed metal inside. It must be bullet proof. Two covered locks are required upon it to prevent the magazines from being opened by cutting its locks with either a torch or a hacksaw. It is violative of the federal law to keep any blasting caps or primers on the job site without these magazines. They are on skids and are movable with proper machinery. The magazines used by the taxpayer measure five feet in each dimension. Photographs of the magazines were introduced into evidence.

The bins are also on skids and, likewise, are required to be kept at the mining site when bulk anfo is employed as the primary explosive. Anfo is ordered from the taxpayer by their mine company customers as it is needed. Since the bins will hold only from 30 to 40 tons of anfo, and since, on a busy day, a mine will use 100 tons of anfo, the taxpayer must resupply their customer’s bins several times during such days. It is delivered to the job site by taxpayer’s trucks, which haul from 20 to 22 tons per load. The taxpayer’s truck backs to the top of the bin, and, by means of an auger on the truck, the anfo is unloaded from the vehicle into the bin.

The mining companies have specialized trucks which load the anfo into the blasting holes. It is a hydraulic truck which augers the material out of the vehicle into the blasting hole. Those trucks normally hold from 8 to 10 tons of anfo.

The amount of anfo exploded daily varies greatly. On certain days, 100 tons, or more, will be used, then a day or so may pass without any explosive being required. The truck that loads the anfo into the blasting holes on busy dates must be refilled with anfo many times from the bin. Those trucks have trap doors in their tops. The truck is driven under the bin and the truck’s trap door is aligned under a trap door situated on the bottom of the bin. The truck driver pulls a lever on the bin and the anfo flows into the truck by gravity. The only method whereby bulk anfo is loaded onto the mine company’s specialized trucks is by using this bin system. The only testifying witness stated that the bin had a direct, integral part in the mining process, as the strip mining of coal is presently practiced. “It’s an integral part of using explosives in the mining process. The bulk anfo comes out of ou[r] truck into the bin, out [of] the bin into their trucks, and then from the truck into the holes which is the way they use it to mine the coal.”

The bins and the magazines are owned by the taxpayer and are placed upon the strip mining, sites as a service to their customers.

The legal controversy is whether the bins and magazines are taxable at the 4% rate under subsection (a) or at the IV2V0 rate under subsection (b) of section 40-23-61 of the Code of Alabama (1975). Pertinent parts of those subsections are as follows:

(a) An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property ... at the rate of four percent of the sales price of such property, except as provided in subsection (b) and (c) of this section.
(b) An excise tax is hereby imposed on the storage, use or other consumption in this state of any machines used in mining, quarrying, compounding, processing and manufacturing of tangible personal property, purchased at retail ... at the rate of one and one-half percent of the sales price of any such machine; provided, that the term “machine,” as herein used, shall include machinery which is used for mining, quarrying, compounding, processing or manufacturing tangible personal property, and the parts of such machines, attachments and replacements therefor, which are made or manufactured for use on or in the operation of such machines and which are necessary to the operation of such machines and are customarily so used.

It is conceded by the state that anfo, boosters and detonators are considered to be machines, or parts of machinery, when used in the explosive process in coal strip mining. Robertson & Associates (Alabama), Inc. v. Boswell, 361 So.2d 1070 (Ala.1978). However, the state contends that the magazines and bins in which those explosives are stored prior to their use are mere storage facilities and are not machinery, nor machine parts, used directly in the mining process. The taxpayer vigorously controverts that contention.

We agree with the taxpayer concerning the anfo bins being taxable under subsection (b), supra. The bins were made or manufactured for use in the utilization of the anfo. Bulk anfo is loaded onto the customer’s specialized truck only by means

of the bins. In order to use the bulk anfo, the bins are necessary to such use and are customarily so used. State v. Taylor, 262 Ala. 639, 80 So.2d 618 (1955). Prior to being loaded onto the mining company’s trucks, the bins do store the anfo for varying lengths of time. But, the fact that the bins have dual functions, storage and loading, is of no present consequence, for, where this particular tax provision is of doubtful application, it must be construed in favor of the taxpayer. State v. Calumet & Hecla, Inc., Alamet Division, 281 Ala. 549, 206 So.2d 354 (1968). Since one of the primary functions of the bins is to load the specialized trucks used in filling the blasting holes, the learned trial court correctly decided that the anfo bins should be taxed at the rate of IV2% as provided by subsection (b), supra, and the judgment appealed from is affirmed as the tax rate to be applied to the sales price of the bins.

However, a different result is reached with regard to the magazines. “If the article in question performs an integral function in the procedure by which the tangible personal property is produced, we think it is a part and parcel of the machinery used in its production.” State v. Newbury Manufacturing Co., 265 Ala. 600, 603, 93 So.2d 400, 402 (1957); Robertson & Associates (Alabama), Inc. v. Boswell, supra. We have summarized all of the evidence regarding the magazines. The only functions of the magazines that we harvest from the testimony are convenience to the mining company and the safe storage of the boosters and detonators. Those uses do not constitute a part of the actual mining process. The magazines are vital aids to safety, but there is no evidence that they perform an integral, distinct function in the process itself used in the strip mining of coal. The magazines, accordingly, are taxable at the 4% rate under subsection (a), supra, and the trial court erred in altering the Revenue Department’s assessment insofar as the magazines are concerned. Therefore, this case is, in part, reversed and it is remanded to the trial court for an appropriate judgment consistent with this opinion pertaining to the 4% tax rate to be applied to the sales price of the magazines.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

In this instance I find no significant facts that distinguish the “magazines” from the “bins.” Both magazines and bins hold material used in the blasting operations incident to strip mining. Federal regulations require that the explosive material and anfo be kept in specially constructed equipment if located on the mine site.

As indicated by the majority, in order to use the bulk anfo, the bins are necessary to such use and are customarily so used. By the same token, to me, in order to use boosters and detonators, the magazines are required by law for such use.

The magazines are not located on the mine site merely for the convenience of the mining company. Rather, the magazines are located on the site so that the company can, in effect, carry on its mining operations in compliance with the law. The magazines, then, like the bins, perform “an integral function in the procedure by which personal property is produced,” and thus are part and parcel of the machinery used in strip mining operations. State v. Newbury Manufacturing Co., supra; Robertson & Associates (Alabama), Inc. v. Boswell, supra.

I agree with the majority that, when the statute is construed in favor of the taxpayer, the bins should be taxed at the rate of 1Ví%. However, since the magazines, like the bins, should qualify as machinery used for strip mining, I would hold that the magazines should also fall under subsection (b), supra, and be taxed at the rate of 1V2% rather than the rate of 4% as decided by the majority.

I would affirm the order of the trial court.


author: HOLMES, Judge.

text:
    Jimmy JENKINS v. STATE of Alabama.
    Civ. 2866.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.

      Bob Humphries, Montgomery, for appellant
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

Leila Patrick filed a paternity complaint against the appellant, Jimmy Jenkins, alleging that appellant was the father of her two children. The Mobile Juvenile Court entered an order adjudicating Jenkins to be the father of the two minor children. Jenkins then appealed to the Circuit Court of Mobile County.

The trial court entered an order declaring that the appellant was the natural father of the children.

Appellant contends on appeal that the evidence does not support the trial court’s order.

It is clear from the record before this court that the trial court came to its decision after an ore tenus hearing. The record before this court does not contain any of the testimony heard before the trial court.

It is the law of this state that a trial court’s findings and conclusions on the facts will not be reviewed when it affirmatively appears there was evidence before the trial court which is not in the record on appeal. Smith v. Haynes, 364 So.2d 1168 (Ala.1978); 2 Ala. Digest, Appeal & Error key 695(1).

It will be presumed that evidence was sufficient to support the decree or judgment where all the evidence is not in the record. Hoskins v. Nichols, 386 So.2d 1169 (Ala.Civ.App.1980); 2A Ala. Digest, Appeal & Error key 907(4).

As pointed out above, the testimony heard by the trial court is not before this court. Consequently we have no alternative but to affirm the order of the trial court.

AFFIRMED.

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


text:
    Homer B. WILSON, et al. v. Buford DRAPER.
    Civ. 2655.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.

      Raymond Uhrig, Huntsville, for appellants.
    Merrill W. Doss of Doss & Sparkman, Hartselle, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant for fraud. The jury returned a verdict in favor of the plaintiff. A judgment was entered thereon and the defendant appeals.

We find no reversible error and affirm.

Viewing the record with the attendant presumptions, the following is revealed: Plaintiff, Buford Draper, is an illiterate man over sixty years old. He inherited sixty acres, the property in question, from his grandfather.

In 1975, defendant, Homer Wilson, asked plaintiff to sell the property to defendant. There is evidence in the record to support plaintiff’s factual allegation that defendant agreed to pay $22,000 for the property.

Defendant took plaintiff to a notary public’s residence and had plaintiff execute a deed for the sixty acres to the defendant. Plaintiff was unable to read the consideration recited in the deed, and neither the notary nor the defendant read the deed to plaintiff.

The evidence is in conflict as to when plaintiff received a copy of the promissory note concerning the property from defendant. There is some evidence that plaintiff received the promissory note in the spring of 1976. There is, however, other evidence from which the jury could have determined plaintiff did not see the promissory note until May, 1978, a date within one year from the filing of this lawsuit.

When plaintiff finally received the promissory note, he took it to a friend who read it to him. Plaintiff discovered at that time the defendant was only paying him $11,800 for the property, rather than $22,000 upon which the plaintiff claimed he and defendant agreed.

Plaintiff sued defendant for fraud and requested damages as well as rescission of the deed.

The court properly instructed the jury on the issues of fraud, damages, rescission, and the applicable statute of limitations.

The jury awarded plaintiff $5,000 in punitive damages and granted plaintiff clear title to the sixty acres.

Defendant timely moved for a directed verdict at the close of the plaintiff’s evidence and for j. n. o. v. after the jury reached a decision. The trial court denied both motions.

Defendant, through able counsel, raises three issues on appeal: 1) the trial court erred in denying defendant’s motions for directed verdict and for j. n. o. v. on the basis that the evidence conclusively established the one year statute of limitations for fraud had run before plaintiff filed his claim; 2) the trial court erred in rendering judgment upon the jury verdict for punitive damages when there was no showing of actual or nominal damages; and 3) the trial court erred in submitting the question of title to the jury.

For the following reasons, we disagree with each of defendant’s contentions.

Defendant first contends the trial court erred by denying his motions for directed verdict and j. n. o. v. In support of this position he argues the evidence conclusively established that the alleged fraudulent act of the defendant was discovered by the plaintiff in the spring of 1976, a time well over one year prior to the filing of the suit in April, 1979.

Defendant pleaded the statute of limitations which requires that an action for fraud be brought within one year of the discovery of the fraud. § 6-2-3, Code of Ala.1975. The statute of limitations for fraud will not begin to run until the plaintiff knows of facts which would have put a reasonable mind on notice of the possible existence of the fraud. Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979). The burden of proof rests upon the plaintiff to show he came within the savings provision of § 6-2-3. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979).

In order to show that he fell within the savings period of the statute of limitations, the plaintiff presented evidence to show that he did not know that the actual sale price differed from the amount upon which he and the defendant purportedly agreed until May, 1978. The plaintiff testified it was “a year or better” after signing the deed in 1975 when he received from the defendant the promissory note which contained the $11,800 selling price.

Other witnesses for the plaintiff gave testimony from which a reasonable jury could have concluded that the plaintiff was not put on notice of the fraud until the spring of 1978. These witnesses said it was “a year or over” or “a good while” after the 1975 closing when plaintiff received the papers which led him to discover defendant’s fraud.

This testimony, while it does not clearly establish when the plaintiff first discovered the fraud, does indicate that the plaintiff was unaware of the fraud until the passage of considerable time after the deed was signed.

Further evidence supporting plaintiff’s position, and perhaps more damaging to the defendant’s position, is plaintiff’s answer to an interrogatory in which the plaintiff specifically stated he did not receive the promissory note until May, 1978. The defendant himself offered this answer as evidence.

This answer and the testimony indicated above are, in this instance, legally sufficient for the jury to have reasonably inferred that the plaintiff did not have notice of the fraud until approximately three years after executing the deed. Put another way, there is sufficient evidence that the plaintiff was not aware of the fraud until one year prior to the filing of the instant lawsuit.

This court realizes that there is evidence, some even in the plaintiff’s own testimony, from which it could be concluded that the plaintiff was put on notice about the alleged fraud more than a year prior to the time suit was filed. However, the question of when plaintiff actually discovered the fraud is a question of fact which must be decided by the jury. Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978), appeal after remand, 385 So.2d 966 (Ala.1980).

Summarizing, in light of the above, there was sufficient evidence to send to the jury the question of when plaintiff actually discovered defendant’s fraudulent act. A directed verdict may not be given where the evidence is open to a reasonable inference of material fact unfavorable to the moving party. Roberts v. Carroll, 377 So.2d 944 (Ala.1979). Since the jury could and did decide from the evidence that the statute of limitations had not yet run, the trial court did not err by denying the defendant’s motion for directed verdict. Williamson v. United Farm Agency of Ala., Inc., 401 So.2d 759 (Ala.1981).

Additionally, the defendant claimed the trial court erred in denying his motion for j. n. o. v. The Alabama Supreme Court recently reaffirmed the rule that a post-trial motion for j. n. o. v. is really just a renewal of the party’s motion for directed verdict, and the j. n. o. v. motion cannot be granted unless the motion for directed verdict should have been granted. Williamson v. United Farm Agency of Alabama, Inc., supra. Since the defendant’s motion for directed verdict was properly denied, we hold that the trial court did not err in denying the defendant’s motion for j. n. o. v.

Defendant next contends the trial court erred in rendering judgment upon the jury verdict because there was no evidence of any damage suffered by plaintiff and no award of actual or nominal damages by the jury.

Damage to the plaintiff is an essential element of fraud. Old Southern Life Insurance Co. v. Woodall, 348 So.2d 1377 (Ala.1977). Nominal damages are proper where there has been a breach of a legal duty and where actual damages can be reasonably inferred from the evidence. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970). Plaintiff need not prove the exact extent of his damages since the mere absence of data giving rise to compensatory damages does not prevent the recovery of nominal damages. Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App.1980), cert. denied, 392 So.2d 548 (Ala.1981).

There is evidence here to show there was a breach of a legal duty. Defendant led the plaintiff to believe defendant was to pay $22,000 for the property. Instead, defendant paid only $11,800 for the land. When the illiterate plaintiff conveyed his property to defendant, defendant breached his legal duty by failing to disclose to plaintiff the actual purchase price.

There is evidence from which the jury could infer actual damages. Plaintiff testified he and defendant agreed that defendant would pay $22,000 for the property. Witnesses testified on behalf of plaintiff to corroborate his version of the agreement. Plaintiff also testified that he believed his land was worth $22,000, and that he would not have agreed to sell it to defendant for less than that amount. As a result of defendant’s fraudulent action, plaintiff agreed to sell his property for $10,200 less than what he believed to be its actual value. From the foregoing evidence the jury could have inferred plaintiff incurred actual damages which entitled him to nominal damages. Long-Lewis Hardware Co. v. Lightsey, supra.

The jury did not specifically award nominal damages to plaintiff. However, once actual damages, even nominal damages, are established, punitive damages may properly be awarded in fraud cases. National State Insurance Co. v. Jones, 393 So.2d 1361 (Ala.1980). As indicated above, the jury could have inferred from the evidence plaintiff suffered actual damages and thereby became entitled to nominal damages. Plaintiff’s right to recover nominal damages supports the jury’s award of punitive damages. Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971). Failure to specify an award of nominal damages along with the award of punitive damages did not render the verdict incomplete and uncertain so as to cause reversal on appeal. See Pritchett v. United States, 425 F.2d 663 (5th Cir. 1970); Jewell v. Jackson & Whitsett Cotton Co., 331 So.2d 623 (Ala.1976).

Put another way, there was evidence to support the jury’s finding of fraud on the part of defendant. By so finding, the jury determined plaintiff had suffered actual damages due to the fraud. Consequently, plaintiff was entitled to at least nominal damages. Since nominal damages were proper, it was within the province of the jury to award punitive damages. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975).

The final issue on appeal is whether the trial court erred in submitting the issue of cancellation of the deed to the jury. We note no objection was made at trial when the trial court submitted the question of rescission to the jury. Hence, no reversible error is presented. See Elliot v. Elliot, 372 So.2d 846 (Ala.1979).

We would be remiss in failing to note that plaintiff in this action received both money damages and equitable relief. Whether plaintiff should have made an election of remedies is not an issue on appeal. This court, by its conclusions, should not necessarily be understood as holding that in this instance an election of remedies was not required. Nor should we be understood as holding that an election of remedies is required. As indicated, that issue is not before us.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Mable PAYNE v. James M. CARTER, acting Director of Department of Industrial Relations, etc., et al.
    Civ. 2734.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.
    Rehearing Denied Dec. 2, 1981.
    Frederick H. Heffler, Columbiana, for appellant.

      George Cocoris, Gen. Counsel, and G. Guy Hayes, Asst. Gen. Counsel, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an unemployment compensation case.

After the court personally conducted the trial a judgment was rendered which denied the claimant, Mrs. Payne, the right to receive unemployment compensation. She appeals. We affirm.

The ore tenus rule applies. The trial court’s finding is clothed with a presumption of correctness unless it is clearly contrary to the great weight of the evidence. Steele v. Carter, 390 So.2d 299 (Ala.Civ.App.1980). Since the testimony of the two witnesses conflicted, the judge was required to resolve the conflicts by choosing that evidence which he believed. Both sides are in accord that the dispositive issue before this court is whether there was evidence to sustain the judgment of the trial court.

The claimant was an employee of Associated Cleaning and Maintenance, Inc., who had a system and policy, which was known to the claimant, whereby employees checked into, and out of, their jobs by calling a certain telephone number which was connected to a recording device. Apparently, the employees would then give their names, the building in which they labored, whether they were commencing or concluding their night’s work and the time thereof. Their hourly pay was computed pursuant to the beginning and ending times reported by the employees and so recorded.

On two prior occasions, the claimant’s supervisor had previously warned her about leaving work early and/or not working the full amount of time as to which she reported and recorded by the telephone system. On June 21, 1979, he checked the recording around 10:45 P.M., and the claimant’s voice had been earlier recorded saying, “This is Mable Payne checking out [of] Building 300 at 1:00.”

At 9:30 P.M. on August 7, 1979, the supervisor could not locate the claimant at the building in which she was assigned for work. Around 10:00 P. M., he listened to the telephone recording device and her recorded voice stated that she had checked out of Building 300 at 1:00. This would normally have resulted in her wages being computed as ending at 1:00 o’clock, three and one-half hours, or more, after she had actually ceased work that night. He had previously orally warned her several times that she would be terminated if she continued to leave early. Her employment was terminated on August 8, 1979.

An employee is disqualified from receiving unemployment compensation if he (or she) is discharged by reason of a dishonest act committed in connection with his (or her) work. § 25-4-78(3)(a), Code of Alabama (1975). The word “dishonest” means “ ‘characterized by lack of truth, honesty, probity or trustworthiness or by an inclination to mislead, lie, cheat or defraud.’ ” Scott v. Scott Paper Company, 280 Ala. 486, 195 So.2d 540 (1967). The evidence supports a finding that the claimant cannot recover unemployment compensation because of her commission of such a dishonest act. The testimony of the supervisor places her conduct within such definition; hence, we must affirm.

Since the trial court could have decided that she was disqualified from receiving compensation upon that basis, we have not summarized any of the further evidence pertaining to, and we pretermit a decision upon, any other ground argued as justifying either a total or partial disqualification of the claimant from receiving such benefits.

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

AFFIRMED.

All the Judges concur.


text:
    Clifford A. MINTON v. PERSONNEL BOARD OF JEFFERSON COUNTY, Alabama.
    Civ. 2802.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.

      William M. Dawson, Birmingham, for appellant.
    James R. Clifton of Stone, Patton & Kierce, Bessemer, and Charles H. Wyatt, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This is an employee dismissal case. The case is before this court by writ of certiora-ri.

Mr. Clifford Minton, the appellant, was employed as a construction equipment operator by the City of Birmingham. An altercation occurred during a municipal employees strike during which appellant allegedly pushed a City of Birmingham labor foreman. Appellant was charged with conduct unbecoming an employee in the public service and was dismissed by Mr. Moncrief, the superintendent of the Street and Sanitation Department.

Pursuant to Section 22 of the Personnel Board’s Enabling Act, appellant appealed his dismissal to the Personnel Board of Jefferson County. The personnel board appointed a hearing officer before whom a full adversary hearing was held. At the hearing each party was represented by counsel and each party presented witnesses.

The hearing officer, based upon the evidence presented at the hearing, recommended that appellant be suspended without pay for six months. The personnel board, however, did not accept the hearing officer’s recommendations and, instead, affirmed the action of Mr. Moncrief in permanently terminating appellant.

As provided by Section 22, appellant appealed the decision of the personnel board to the circuit court. There, a three-judge panel remanded the case to the personnel board for further action.

On March 3, 1977, another full adversary hearing was held, this time before the full personnel board. After considering the evidence presented to it, the board entered an order sustaining the actions of Mr. Moncrief in terminating the employment of appellant. Mr. Minton again appealed to the circuit court and a three-judge panel affirmed the personnel board’s decision.

Appellant, through counsel, raises numerous grounds that, he contends, warrant reversal in this case. His main contentions are the following:

(1) The Personnel Board violated appellant’s constitutional rights by terminating his employment without granting any opportunity, prior to termination, to rebut the charges against him.
(2) Procedural failings in the termination of appellant violated appellant’s rights.
(3) The three-judge panel failed to properly exercise its power to review the decisions of the Personnel Board.

We will address each contention individually-

(1) Right to pre-termination confrontation:

Appellant relies upon Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), as establishing his right to rebut the charges against him prior to termination. Prior to the termination of a city employee with a property right in his employment, Thur-ston requires that the employee be informed in writing of the reasons for termination and that the employee be given an effective opportunity to respond to the charges against him.

The record clearly reflects that the demands of Thurston were not complied with in the case before this court. Appellant was never given any opportunity to answer the charges against him prior to his termination. However, both federal and state courts have held that pre-termination proceedings deficient under Thurston may be cured by post-termination proceedings. Thompson v. Bass, 616 F.2d 1259 (5th Cir. 1980); Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980); Hendon v. City of Florence,-So.2d-, Civ. 2598 (Ala.Civ.App., February 4, 1981).

We hold that any deficiency in the pre-termination proceedings in the case before us was cured by the post-termination proceedings. Appellant was given an opportunity before both the hearing officer and the full personnel board to rebut the charges against him. At both hearings appellant was reasonably apprised of the charges against him and, through counsel, conducted a vigorous defense. Also on each occasion appellant presented his own witnesses and had the opportunity to cross-examine opposing witnesses.

We thus hold that appellant’s first contention is without merit.

(2) Procedural failings in appellant’s termination:

Section 22 of the Personnel Board Enabling Act provides the procedure to be followed in terminating an employee. That Act provides, in pertinent part, the following:

An appointing authority may dismiss or demote an employee holding permanent status for just cause whenever he considers the good of the service will be served thereby, for reason stated in writing, served on the affected employee

Based upon the foregoing, appellant contends that he was not dismissed by the proper appointing authority. Specifically, appellant contends that the Mayor of the City of Birmingham alone was the appointing authority and the only person who could dismiss him.

Section 4.06 of the Mayor-Council Act of 1953 , in pertinent part, provides:

The mayor shall ....
(2) Appoint and, when necessary for the good of the service, remove all officers and employees of the city except as otherwise provided by this Act and except as he may authorize the head of a department or office to appoint and remove subordinates in such department or office ....

Such Act clearly gives the mayor the ability to delegate his authority to appoint and remove employees. See Bearden v. Johnston, No. 76 — P-1098-S (N.D.Ala. May 5, 1977), aff’d per curiam, 595 F.2d 1219, (5th Cir. 1979). The record reflects that the mayor had delegated his authority to dismiss employees to Mr. Moncrief. Thus, Mr. Moncrief was an appointing authority who could properly dismiss appellant.

Appellant next contends that he did not receive written notice as required by Section 22. The record reveals some attempt to mail appellant the Personnel Action form. Appellant claims he did not receive the Personnel Action form nor any other notice. We note, however, that appellant appealed his dismissal to the personnel board within the ten days prescribed by statute. Thus, even if appellant received no notice, he was not prejudiced by any failure of'notice. Any failure of notice in this action does not affect the substantial rights of the parties and is therefore harmless error. Rule 61, A.R.C.P.

(3) Failure of three-judge panel to properly exercise its power of review:

Section 22 provides for a three-judge panel composed of circuit judges to review decisions of the personnel board. Review on appeal to the three-judge panel is limited to questions of law and to a determination of whether the board’s judgment is supported by substantial and legal evidence.

The three-judge panel found, after a consideration of the record, that the personnel board’s judgment was supported by substantial and legal evidence. The record reveals two witnesses who testified that appellant pushed or struck the labor foreman. The labor foreman testified he was pushed from behind and that appellant was the closest person to him.

This court has previously held that review upon granting certiorari is limited to a consideration of the proper application of the law involved and whether the ruling below was supported by any legal evidence. Ex parte Smith, 394 So.2d 45 (Ala.Civ.App.1981). Based upon the foregoing discussion, we cannot say that the panel’s affirmance of the board’s judgment was not supported by legal evidence.

This case is due to be affirmed.

AFFIRMED.

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

      . Act No. 248, Acts of Alabama 1945, as amended by Act No. 562, Acts of Alabama 1947; Act No. 670, Acts of Alabama 1953; Act No. 1600, Acts of Alabama 1971.

      . According to Thurston, a city employee acquires a property right in his job if he can be dismissed only for cause. This is not at issue in the case before us.

      . Act No. 452, Acts of Alabama 1955.


author: BRADLEY, Judge.

text:
    Joseph E. BOYD v. ALABAMA STATE TENURE COMMISSION; Paul R. Hubbert, ex officio chairman, etc., et al.
    Civ. 2822.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.
    Kenneth L. Thomas, Montgomery, for appellant.
    Richard F. Calhoun of Brantley & Calhoun, Troy, for appellees.
   ON REHEARING

BRADLEY, Judge.

This court’s original opinion dated September 9,1981 is withdrawn and the following is substituted therefor:

This is an appeal from the denial of a writ of mandamus by the Circuit Court of Pike County, Alabama.

Joseph Boyd was notified on May 16,1980 that the Pike County Board of Education was transferring him to an infield teaching position. Boyd made a written request for a hearing, but his request was denied. Boyd then filed an appeal with the Alabama State Tenure Commission. The Commission found that Boyd had not attained continuing service status under Alabama’s tenure laws. Subsequently, Boyd appealed to the Pike County Circuit Court. The circuit court affirmed the Commission’s findings, and as a result Boyd appealed to this court.

The dispositive issue here is whether Joseph Boyd is entitled to a hearing before the Board of Education on the question of whether he has attained tenure as a teacher within the meaning of the Alabama Teacher Tenure Act. We hold that he is not entitled to such a hearing.

In Smith v. Birmingham Board of Education, 403 So.2d 226 (Ala.1981) the supreme court held that an advisor who had not attained continuing service status as a supervisor could be returned to an instructor position without being accorded a hearing by the Board of Education.

In the ease at bar the Board of Education determined that Boyd was not tenured and thus not entitled to a hearing on this question. Boyd then appealed the Board’s decision to the State Tenure Commission and that agency held that Boyd was not a tenured teacher and therefore was not entitled to the protection of the Alabama Teacher Tenure laws. However the Tenure Commission is authorized the hear appeals by tenured teachers only. Alabama State Tenure Commission v. Ray, 342 So.2d 21 (Ala.Civ.App.1977).

In the absence of authority to hear appeals from non-tenured teachers, the Tenure Commission could not entertain the appeal of Boyd and decide that he was a non-tenured teacher. Consequently, the trial court’s denial of the mandamus to require the Commission to set aside its order is erroneous and must be reversed. The Tenure Commission was acting without its jurisdiction when it affirmed the Board’s decision that Boyd was a non-tenured teacher and thus not entitled to a hearing.

The judgment of the trial court is reversed and the cause is remanded to that court for it to order the Tenure Commission to dismiss Boyd’s appeal for lack of jurisdiction.

Should Boyd wish to litigate the Board’s decision that he does not have tenure, he may seek the appropriate relief in the Circuit Court of Pike County such as was done in Smith v. Birmingham Board of Education, supra.

APPLICATION FOR REHEARING GRANTED.

OPINION SUBSTITUTED.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BOWEN, Judge.

text:
    Mickey ELLISON v. STATE.
    4 Div. 934.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Oct. 27, 1981.

      Mickey Ellison, pro se.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The petitioner appeals from the summary denial of his petition for writ of error cor-am nobis.

The petition contains matters and allegations (among others, ineffective assistance of counsel) which, if true, entitle the petitioner to relief. Since the petition is meritorious on its face, the petitioner should have been afforded a hearing on the merits. Henry v. State, 387 So.2d 328 (Ala.Cr.App.1980).

We note that the circuit court judge who denied the petition is alleged to be the same judge who accepted the petitioner’s guilty pleas and who sentenced him thereon. Undoubtedly, this judge has personal knowledge of the events and circumstances surrounding this case which have not been made a part of this record. However, this Court is bound by the record which contains no evidence to contradict petitioner’s allegations.

Under these circumstances this Court has no alternative but to reverse the judgment of the Circuit Court. This cause is remanded with directions that an evidentiary hearing be held at which the defendant is present and represented by counsel.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.


text:
    Debra A. DAVIS, Rosetta McLean, Lottie Mae McCall v. STATE.
    3 Div. 372, 3 Div. 376 and 3 Div. 381.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Joe M. Dawkins, II, Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendants were indicted and convicted for the offense of false pretense. Alabama Code 1975, Section 13-3-90.

Since the issues in these cases are identical, the judgments of the Circuit Court are affirmed on authority of Gloria Jean Smith v. State, Ala.Cr.App., 3 Div. 378 (Ms. October 27,1981).

AFFIRMED.

All Judges concur.


text:
    Paul David CARR v. STATE.
    5 Div. 593.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen. and Jan A. Wade and J. Thomas Leverette, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment charging escape in the first degree and was sentenced to three years’ imprisonment.

He argues that the facts contained in the record do not show that he is guilty as charged.

A person commits the crime of escape in the first degree if, having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to conviction. Alabama Code 1975, Section 13A-10-31(a)(2) (Amended 1977).

The defendant, a convicted felon, was a “trustee”. After washing cars at the Highway Patrol Station, he was brought back to the Lee County Jail at 5:00 P.M. Usually, he and the other trustees would just “hang around outside” the courthouse until 7:00 P.M. when they were taken to the Opelika City Jail for the night. The defendant admitted leaving the courthouse after 5:00 P.M. and going to “a lady’s” where he was arrested before he could return.

Custody is “a restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court, but does not include mere supervision of probation or parole, or constraint incidental to release on bail.” Section 13A-10-30(b)(l). The key word in the definition of “custody” is “restraint”. See commentary following Section 205.00, New York Revised Penal Law. “A person may still be in custody even though not under constant supervision by guards, so long as some restraint remains upon complete freedom.” Read v. United States, 361 F.2d 830, 831 (10th Cir. 1966). “It is not necessary that the prisoner be confined by physical force, and the fact that he was unguarded at the time of his escape is immaterial.” 30A C.J.S. Escape Section 5 (1965). See also Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.1978), cert. denied, 367 So.2d 590 (Ala.1979).

Furthermore, a plea of guilty is an admission of whatever is sufficiently charged in the indictment. Ex parte Sankey, 364 So.2d 362 (Ala.1978). A voluntary guilty plea concludes the issue of guilt, Monroe v. State, 50 Ala.App. 302, 278 So.2d 751 (1973), and dispenses with the need for judicial fact finding. Rickard v. State, 44 Ala.App. 281, 207 So.2d 422 (1968). A plea of guilty, voluntarily and intelligently made, is conclusive as to the defendant’s guilt and is an admission of all facts sufficiently charged in the indictment. Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); Knowles v. State, 280 Ala. 406, 194 So.2d 562 (Ala.1967); Camp v. State, 359 So.2d 1187 (Ala.Cr.App.1978). A plea of guilty admits all elements of the offense. Barnes v. State, 354 So.2d 343 (Ala.Cr.App.1978).

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Larry Lee HARDY v. STATE.
    6 Div. 503.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Samuel R. Pennington, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Larry Lee Hardy was indicted for and convicted of the “third-degree burglary” of the home of Ms. Marie Stovall.

The trial court, pursuant to Alabama’s Habitual Felony Offender Act, sentenced Mr. Hardy, the appellant, to 25 years’ imprisonment.

On February 19, 1980, the home of Marie Stovall was burglarized. The home was ransacked, dresser drawers removed, jewelry boxes turned over, and a television set was removed. Ms. Stoval stated that she did not know the defendant, Hardy, and had not given him permission to enter her residence.

One of the investigating officers, Mr. R. E. Zeanah of the Birmingham Police Department, lifted seven fingerprints from jewelry boxes and other personal items of Ms. Stovall that were apparently moved during the burglary.

These latent fingerprints when later compared with known fingerprints in the Birmingham Police Department files were identified as belonging to the appellant, Larry Lee Hardy.

The appellant presented no evidence at trial.

After the trial court overruled the appellant’s motion to exclude the evidence presented by the state, the jury then heard the oral charge of the trial court. The jury returned a verdict of guilty “as charged in the indictment.”

I

Appellant contends that the trial court erred in permitting the state to introduce into evidence a copy of the “fingerprint card” of appellant that was used in identifying his latent prints found in Ms. Stovall’s home. Appellant argues that the card, made in 1978 when the appellant was arrested for a prior offense, was prejudicial in that it informed the jury of appellant’s past criminal record.

The “fingerprint card”, as introduced, had been charged by the trial court to avoid this very prejudice to the appellant. The record indicates (R. 36 — 39) that the date of arrest, the charges against appellant, the identification number, and the notation, “City of Birmingham Department of Police,” were all deleted from the card before it was admitted for the jury’s consideration.

These facts are nearly identical to those presented in Woodson v. State, 405 So.2d 967 (Ala.Cr.App.1981), where we held that an “altered” fingerprint card which did not disclose, on its fact, any prior criminal record and which did not “imply the existence of a past criminal record apart from the very fact that it [was] a fingerprint card”, did not constitute prejudicial error. On the authority of Woodson, supra, and eases cited therein, we hold that the facts of this case, likewise, do not make the copy of this fingerprint card “impermissibly prejudicial.” We, therefore, find no reversible error in admitting it as so “altered”.

Brown v. State, 369 So.2d 881 (Ala.Cr.App.1979), cited in support of appellant’s assertion to the contrary, is distinguishable on its facts. We noted in Brown, supra, that:

“The mere existence of recorded fingerprints does not per se imply the existence of a criminal record. The error in this case was committed by showing the jury the additional extraneous and highly prejudicial information contained on the photostatic copy of the appellant’s master card.” (Emphasis added.)

The “additional extraneous and highly prejudicial information” was the date of arrest, the list of five aliases and the F.B.I number. This information combined with the facts surrounding the introduction of the photostatic copy of the fingerprint card compelled our conclusion in Brown that the defendant’s prior criminal record had been brought to the jury’s attention and, consequently, that error had occurred.

Except for the appellant’s argument on appeal, there is nothing in this record before this court to indicate that appellant’s past criminal record was so introduced in evidence in this case. For aught that appears the trial court properly protected the appellant’s rights by removing the prejudicial matter from the copy of the fingerprint card and, in so doing, eliminated any potential prejudice to the appellant. Woodson v. State, supra; and cases cited therein. See also James v. State, 381 So.2d 672 (Ala.Cr.App.1980).

II

Appellant further contends that the trial court erred by refusing appellant’s sole requested written charge (R. 101) concerning “reasonable doubt.”

In light of appellant’s arguments to the contrary, it is our conclusion after having reviewed the oral charge (R. 78) that the correct principles of law contained in the refused charge were substantially, adequately and fairly covered by the trial court’s oral charge (i.e. the jury was adequately instructed on the issue of “reasonable doubt”). Section 12 — 16—13, Code of Alabama 1975; Ball v. State, 51 Ala.App. 270, 284 So.2d 296 (1973); Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied, 357 So.2d 161 (Ala.1977); Sullen v. State, (Ms. October 6,1981).

This record is free of error and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Charles Anthony KEGLER v. STATE.
    6 Div. 538.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Joseph W. Propst, II, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of theft of property in the second degree, as defined by §§ 13A-8-2 and 13A-8 4 of the Alabama Criminal Code, and a sentence to imprisonment for five years. By § 13A-8-4(b) theft of property in the second degree is a Class C felony; by § 13A-5-6(a)(3) the punishment prescribed for a Class C felony is “not more than 10 years or less than 1 year and 1 day.”

The property involved was “eight automobile tires of the aggregate value of One Thousand Dollars, the property of East Texas Motor Freight Lines, Inc., a corporation.”

Soon after the selection of the jury and before any testimony was taken, the court conducted a hearing, out of the presence of the jury, of an oral motion by defendant “that any testimony made concerning the tires being located inside the house of tires in question on 1630 30th Street North, 30th Avenue North, be suppressed.” The court overruled the motion by stating:

“Overruled. There is evidence they were in hot pursuit. There is evidence they thought they were invited into the house.”

The only evidence offered on the hearing of the motion to suppress consisted of the testimony of the defendant and Officer De-wight Hackbarth.

According to the testimony of defendant, he was sitting in an automobile on the early morning of February 20,1980, at the side of his mother’s house, which by the undisputed testimony of Officer Hackbarth was at 1630 Thirtieth Avenue, North, at the time officers came to the house, went in the house and thereafter arrested him.

According to the testimony of Officer Hackbarth on the hearing of the motion to suppress, he and another officer had the house under surveillance on the early morning of February 20, 1980. His testimony was in part as follows:

“. . . [W]hen we first arrived on the scene, we had had a call — we had had a reliable informant inform us around the first of this year that there was going to be some tires stolen during the night. Okay. It was early in the morning around — somewhere near daylight around breakfast time, or whatever, right before getting off time. And we got a call on people unloading tires out of a car in a house. And we pulled up on the scene— we had parked about a half a block away and observed—
“THE COURT: At this house?
“THE WITNESS: Yes, sir. We had observed the defendant and several other black males unloading tires out of a car.
“THE COURT: You saw the defendant?
“THE WITNESS: Yes, sir. Unloading tires out of a car and putting them on the porch. Soloman [defendant’s brother] was rolling them into the house.
“THE COURT: And the defendant was helping him take them out of the car?
“THE WITNESS: Yes, sir. Well, the defendant and these other black males got into two vehicles and was fixing to leave the scene. We had reported two other cars that were standing by in the area to converge on them. Well, as everybody converged Soloman rolled one last tire in the house and slammed the door shut. Well, we grabbed everybody that was on the street and the vehicle. We knocked on the door. Soloman answered the door, which we was going to place him under arrest and we wanted to make sure the tires were still inside and didn’t go out the back door. We started to walk through the house looking for the tires and as soon as we observed the tires, we placed him under arrest.
“THE COURT: Placed Soloman?
“THE WITNESS: Yes, sir. And then—
“Q. Did he say that you could walk through the house?
“A. He invited us into the house and we told him we were looking for some stolen merchandise at the time.
“MR. BONDREAUX: I believe he’s already testified that once they were inside the house they saw the tires in the back—
“THE COURT: Yes. You say you saw them in the back of the house?
“THE WITNESS: Yes, sir.
“THE COURT: As soon as you got in the house?
“THE WITNESS: It wasn’t just directly when we first walked in. When we first walked in we were slowly walking through the house and we observed the tires. And as soon as we observed them, then we placed him under arrest.”

The undisputed evidence introduced in the presence of the jury was that earlier the same morning the tires that were found in the house had been surreptitiously taken from East Texas Motor Freight Lines in Jefferson County. After his arrest, the defendant made a statement in which he said “that he and three other men went into East Texas Motor Freight’s property through a hole in the fence and took eight tires, eight truck tires and a carton of gowns, they took the tires from a trailer and the gowns from a loading dock.” The admissibility in evidence of the statement is not challenged on appeal.

When the State closed its case, the defendant also rested.

As indicated by the trial court, the officers entered the house with the consent of the person who was apparently in charge of the house at the time. They were visible to the officers while they were in that part of the house to which they had been given permission to enter.

The circumstances as a whole, we think, were sufficient to give the officers probable cause for believing that the people, including the defendant, who were moving the six truck tires from a vehicle into the house were in the process of consummating theft of the tires. The entry of the officers into the house was in hot pursuit of at least one of the suspected felons and of the fruits of the suspected theft. The trial court was correct in overruling defendant’s motion to suppress evidence as to the allegedly stolen tires found in the house. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Our search of the record reveals no error prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Mathew Charles JOHNSON v. STATE.
    6 Div. 569.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Jerry N. Quick, Trussville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

First degree robbery — habitual offender treatment; sentence: life imprisonment without parole.

Shortly after noon on July 28, 1980, the Junior Food Mart located on Pearson Avenue in the West End community of Birmingham was robbed by two black males, one of whom was armed with a .32 caliber revolver. The robbers stole approximately $160 in currency, a check made payable to the store, some register receipts, and two cartons of Kool cigarettes. The robbery was reported to the Birmingham police through the use of a silent alarm wired to the cash register. A radio dispatch was broadcast concerning the robbery and its location. The appellant, who was driving the getaway car, and his confederates were apprehended moments later. They were subsequently transported to the store where the clerk identified the robbers and the items taken.

I

Appellant contends that the police were without probable cause to stop his car; thus the incriminating evidence found on the robbers and in the car was illegally obtained and therefore inadmissible.

On voir dire examination outside the presence of the jury, Birmingham Police Officer William Patterson testified that he and his partner were patrolling the West End area on the date of the instant incident and were about four blocks away from the scene of the robbery when they received the radio dispatch. Officer Patterson stated that while the dispatch informed him of the location of the robbery it did not provide any information concerning the number and description of robbers or a description of the getaway vehicle.

The officers responded to the dispatch and headed toward the store. About a block and a half distance from the store, Officer Patterson observed a white over yellow Buick travelling very slowly away from the store toward him. He also observed several people near the corner of Pearson Avenue and 26th Street “pointing in the direction that the car was travelling.” The car was the only vehicle using the street at the time. It was occupied by three black males. The appellant was driving and the other two were sitting in the rear. Officer Patterson testified that he saw the people pointing toward the car just prior to his stopping it. He stopped the car and had the occupants raise their hands where he could see them. He stated that at the time he stopped the car it was his intent “to check this car out to see if they could be the robbery suspects.”

After approaching the car, but prior to searching any of the occupants, Officer Patterson saw a pistol in plain view lying on the rear floorboard. He also saw a brown paper sack on the rear seat between the two occupants. The officers removed the men from the car and searched each one for weapons. On one of the occupants was found another pistol, a sum of money, a check made payable to the store, and several cash register receipts. Within a couple of minutes of the search, Officer Patterson was informed of the details of the robbery, including descriptions of the robbers. Officer Patterson stated that no search of the car was made until the details of the robbery were known. Nothing related to the crime was found on the appellant.

It is clear that the initial stop of the appellant’s car constituted a “seizure” within the purview of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). However, probable cause is not always the standard to be applied in situations such as the one sub judice as it is well recognized that in certain instances an investigatory stop may be made under circumstances that constitute less than probable cause within the commonly accepted meaning of that term. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry the United States Supreme Court, in discussing war-rantless stops based on less than probable cause, stated:

“[W]e deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved . . . must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.
“In order to assess the reasonableness of [an officer’s] conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ . . . And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ...” (Footnotes omitted.) (Second and third brackets appeared in Terry.) (Citations omitted.)

See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

As we stated in Minnifield v. State, 390 So.2d 1146, 1152 (Ala.Cr.App.), cert. denied, 390 So.2d 1154 (Ala.1980):

“The concept of the investigative stop has been adopted by statute in Alabama, § 15-5-30, et seq., Code of Alabama 1975, and though Terry [v. Ohio supra ] was factually concerned with stops of suspicious characters on sidewalks, it is clear from the subsequent decisions of both the United States Supreme Court and the appellate courts of this State that the Terry principle is equally applicable to the stop of a vehicle. . . . ”

See also Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980); Luker v. State, 358 So.2d 504 (Ala.Cr.App.1978); Racine v. State, 51 Ala. App. 484, 286 So.2d 890, cert. denied, 291 Ala. 684, 286 So.2d 896 (1973).

A review of the evidence reveals that Officer Patterson had the following facts before him when he stopped the appellant’s car: (1) a robbery had just been committed, (2) he had observed the appellant’s car a short distance from the store and only moments after the radio dispatch concerning the robbery had been received, (3) the appellant’s car was the only vehicle on the road at the time he observed it, and (4) immediately prior to stopping the appellant’s car, he had seen several people near the store pointing in the direction of the appellant’s car.

We find that the action of Officer Patterson in stopping the appellant’s car was “a legitimate and minimally intrusive procedure under the circumstances.” Minnifield, supra at 1152. Thus, we find that Officer Patterson had “specific and articulable facts” before him from which he could have formed a reasonable suspicion that the appellant had been involved in the robbery. Recognizing that “effective crime prevention and detecting” are important governmental interests, “it would have been poor police work ... to have failed to investigate . . . further.” Terry v. Ohio, supra. Consequently, the trial court properly overruled the appellant’s motion to suppress.

II

Once Officer Patterson saw the pistol in plain view on the rear floorboard of the car, he had sufficient probable cause to search each occupant for weapons. Herrin v. State, 349 So.2d 103 (Ala.Cr.App.), cert. denied, 349 So.2d 110 (Ala.1977); Hoppins v. State, 337 So.2d 134 (Ala.Cr.App.1976). After finding evidence of the robbery on one of the passengers, along with another pistol, and after receiving the details of the robbery, Officer Patterson was justified in conducting a search of the appellant’s vehicle. Nikolic v. State, 384 So.2d 1141 (Ala.Cr.App.1979), cert. denied, 384 So.2d 1151 (Ala.1980); Preyer v. State, 369 So.2d 901 (Ala.Cr.App.1979). See also New York v. Belton, — U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

A careful review of the evidence reveals that the appellant, while not personally perpetrating the crime, was a party to it by his complicity. Section 13A — 2-23(2), Code of Ala. (amended 1977). Thus, the trial court properly overruled his motion to ex-cju(je

AFFIRMED.

All the Judges concur.


text:
    CITY OF BIRMINGHAM v. Michael ADDISON.
    6 Div. 591.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    W. O. MacMahon, III, and Thomas Bentley, III, Birmingham, for appellant.
    ,, . , Carl E. Chamblee, Birmingham, for ap-pellee.
   BOOKOUT, Judge.

The appellee was convicted in the Birmingham Municipal Court on two charges of operating a wrecker without a permit and one charge of carrying a concealed weapon in a vehicle; all of which arose out of the same incident. He duly appealed to the circuit court for a trial de novo. In circuit court the trial judge suppressed the evidence concerning the search of the vehicle appellee was driving and the seizure of the pistol in question and dismissed the concealed weapon charge. A jury acquitted the appellee on the wrecker permit charges. The City of Birmingham now attempts to appeal the acquittal and dismissal to this court pursuant to Title 62, § 693, Code of Ala. 1940.

It is the contention of the city that although Title 62, § 693, does not appear in the 1975 Code of Alabama that it was not repealed by the recodification of the Code. The city contends that § 1-1 — 10, Code of Ala. 1975, provides that existing statutes which apply to one or more counties or municipalities on the basis of population are not repealed. The city therefore contends that Title 62, § 693, supra, is still alive and well and that the case of City of Birmingham v. Williams, 26 Ala.App. 200, 155 So. 878 (1934), is still controlling.

In Williams the court of appeals certified to the supreme court the question of whether the City of Birmingham could appeal to the court of appeals the acquittal of a city defendant in a circuit court trial de novo. The supreme court answered that such an appeal was permissible pursuant to a 1915 act of the legislature which was later codified as Title 62, § 693, supra. The supreme court held that the right of appeal from municipal court to circuit court is purely statutory and therefore when a defendant appealed his conviction to circuit court he did so subject to the statutory right of the city to appeal from an adverse decision in the circuit court. The supreme court there stated that “[t]he statute, in effect, declares that the verdict of acquittal on appeal is not final and unconditional, but subject to review on appeal by the city to the court of appeals.”

The city has not taken into consideration on the instant appeal that there has been a complete overhaul of the judicial system in Alabama since the 1940 Code was compiled. Amendment 328 to the Constitution of Alabama 1901, commonly known as the Judicial Article, was proclaimed ratified on December 27, 1973. The Judicial Article revamped the entire judicial system in this state. The legislature carried out the constitutional mandate to create a uniform judicial system by passage of what is known as the Judicial Implementation Act, Act. No. 1205, Acts of Alabama 1975, approved October 10, 1975. The Implementation Act became effective on that date and repealed all laws or parts of laws which were in conflict with its provisions.

The Implementation Act, now codified in Title 12 of the Code of Ala. 1975, specifically regulates “all appeals from judgments of municipal courts” to the circuit courts in this state. All appeals from municipal courts to circuit courts and then to this court are governed now by §§ 12-14-70, -71, and 12-22-110, et seq., Code of Ala. 1975, as amended. Section 12-14-71 provides for an appeal from the judgment of a circuit court by a municipality only in a case where a municipal ordinance was held to be invalid. The Implementation Act does not provide for an appeal by a municipality from a circuit court acquittal of a city defendant.

Pursuant to § 6.03(a) of Amendment 328 to the Alabama Constitution (the Judicial Article), “the court of criminal appeals . . . shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.” Our appellate jurisdiction in this instance is therefore governed by Code § 12-14r-71, supra, which limits the municipality’s appeal here from circuit court to only those cases where a municipal ordinance was held to be invalid.

As to the city’s contention that because Title 62, § 693, was not repealed by the 1975 Code and was in fact retained via § 1-1-10 of that Code, we find that Title 62, § 693, was not in existence at the time the 1975 Code became effective. We find that on October 10, 1975, the legislature repealed § 693 of Title 62, supra, by enactment of Act No. 1205, § 18-102. Section 1-1-10, Code of Ala. 1975, upon which the city relies, did not become effective until the 1975 Code was enacted by Act No. 20, Acts of Alabama 1977 (approved February 15, 1977) and proclaimed to be effective October 31,1977. See Proclamation by the Governor, Vol. 1, page vi, Code of Ala. 1975. As § 693 of Title 62, supra, had been repealed on October 10, 1975, it was not in existence on October 31, 1977, the effective date of the 1975 Code.

We therefore find no authority currently in existence for the city to appeal the instant acquittal and dismissal of appellee to this court. We likewise find no authority in the law for this court to assume jurisdiction in the proposed appeal.

APPEAL DISMISSED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    CITY OF BIRMINGHAM v. David SCOGGINS.
    6 Div. 607.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.

      James K. Baker, W. O. MacMahon, III, and Thomas Bentley, III, Birmingham, for appellant.
    Carl E. Chamblee, Birmingham, for ap-pellee.
   DeCARLO, Judge.

.This is an appeal by the City of Birmingham, a Municipal Corporation, after an acquittal before a petit jury in the Jefferson Circuit Court on charges of affray and carrying a concealed weapon.

On appeal, the City of Birmingham has argued that it has a right of appeal after the jury’s acquittal of the defendant. This issue was decided by this court, adversely to the City of Birmingham, in an opinion written by Judge Bookout in City of Birmingham v. Michael Addison, 406 So.2d 449 (Ala.Cr.App.1981).

On authority of City of Birmingham v. Michael Addison, supra, this appeal is dismissed.

APPEAL DISMISSED.

All the Judges concur.