text:
    Aubrey Kent JACKSON v. Bradford B. WALLER and Alabama Farm Bureau Insurance Company.
    Civ. 2809.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.

      R. Howell Dean, Montgomery, for appellant.
    William P. Sawyer, Montgomery, for ap-pellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an automobile damage case.

The plaintiffs sued Jackson (the defendant) and his mother for vehicular damages proximately arising out of an automobile accident. The mother was sued as the defendant’s principal, and she was dismissed as a party defendant prior to the nonjury trial conducted before the court. The trial court rendered a judgment for plaintiffs and the defendant appealed. He raises three issues.

I.

The defendant contends that the plaintiffs failed to meet their required burden of proof. Tendencies of the evidence disclose that the parties were driving in opposite directions. As they each approached a street intersection, the defendant was turning, or did turn, his vehicle to his left immediately in front of the plaintiff Waller, thereby blocking a portion, or all, of the lane in which Waller was traveling. Waller put on his brakes and swerved to his right, colliding with a telephone pole, which resulted in damage to his car. Such was adequate evidence upon which the trial court could have based its judgment. The conclusion of the trial court was supported by credible evidence and was not palpably wrong or manifestly unjust. Accordingly, we are required to affirm its decision in that regard. Wiggins v. Brown, 391 So.2d 128 (Ala.Civ.App.1980).

II.

The defendant argues that there is a variance between the pleading and the proof since the complaint avers that “Aubrey Kent Jackson, an agent, servant or employee of the defendant, Beatrice J. Jackson, while acting within the line and scope of his employment” negligently caused the accident, and since there was- no supportive proof of such agency.

There was no fatal variance in that regard. The characterization of the defendant as an agent was an attempt to state liability of his mother for his negligence, and it was not an attempt to sue him in any representative capacity only. When the mother was dismissed as a party, the agency allegation became immaterial. As to the defendant’s liability, the averments as to agency were always immaterial. “Judgment may be given ... against one or more defendants according to their respective liabilities.” A.R.C.P. 20(a). We responded to the merits of this issue only in deference to earnest counsel; however, this alleged variance was not raised at trial or in an adequate manner through a posttrial motion, and it cannot be raised for the first time on appeal. Johnson v. U-Haul of Southern Alabama, Inc., 357 So.2d 665 (Ala.Civ.App.1978).

III.

In substance, the defendant states that the plaintiffs should not be entitled to recover because of Waller’s contributory negligence. The defendant’s answer contained only a denial of all of the material allegations of the complaint. Contributory negligence is an affirmative defense under A.R.C.P. 8(c), and it must be affirmatively pleaded or it is waived. Miller v. Brown-Fikes Ford, Inc., 370 So.2d 1052 (Ala.Civ.App.1979). Here, it was so waived.

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), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Willis Trent KENNEDY, Jr. v. Rachel L. KENNEDY.
    Civ. 2811.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.
    Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for appellant.
    Robert A. Wills of Wills & Vargo, Bay Minette, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case. The present sole issue is whether the trial court abused its discretion in awarding periodic alimony to the wife. The decision of the trial court is affirmed.

Viewing the record with the attendant presumptions, the following pertinent evidence was presented: The parties had been married for twenty-nine years. Two children, both now apparently adults, were born of the marriage.

The wife completed the tenth grade in school. She never worked during the marriage, except when she occasionally assisted the husband, who is a brick mason.. She has no formal job training. She now washes dishes at a restaurant for three and one-half hours a day at the rate of $2.75 per hour. Not including any estimated expenses for medical, dental, insurance of any kind, clothing, entertainment, beauty aids or vehicle upkeep, her other enumerated monthly expenditure totaled $440.

She testified that the husband injured a knee in an automobile accident in 1979, but that he continued to lay bricks on a regular basis until the summer of 1980, although he complained about his knee. A physician had provided a knee brace to him, but she had never seen him wear it.

For two and one-half years, the husband has been keeping company with a young lady. One and one-half years ago he moved from the family home in order to reside with his lady friend, and, in 1980, a son was born to them. The boy evidently draws aid to dependent children since the lady friend is “on welfare.” The husband resides in his stepfather’s trailer rent free, uses a vehicle belonging to his stepfather without cost to him, and, according to the wife, is employed by the stepfather.

For the last few years before his accident, he averaged around $30,000 in yearly income, but he testified that his annual average wages since his injury has been about $10,000. He states that his knee prevents him from obtaining some employment, and he anticipated that he would have a knee operation during the week following the trial. He contends that he cannot pay over $25 per week as alimony.

While the trial court had previously ordered the husband to make certain alimony, mortgage and car payments, pendente lite, he miserably failed in that respect and was in arrears a total of $10,800 at trial time. A judgment was rendered against him for that amount, and no issue is made in this court as to such matter.

After an ore terms trial before the circuit court, that court ordered the husband to pay to the wife as temporary alimony the sum of $75 per week, hence this appeal.

An award of periodic alimony is a matter which rests within the sound discretion of the trial court and will not be disturbed on appeal except for a showing of plain and palpable abuse. Pugh v. Pugh, 406 So.2d 966 (Ala.Civ.App.1981). In determining whether an award of alimony should be made, or in fixing the amount or duration thereof, many factors may be considered, including, but not being limited to, the following: the future earning prospects of the parties; their education, experience, job history and earning record; their health, station in life and needs; the duration of the marriage and the misconduct, if any, of the parties. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980). In applying those criteria to the present case, we find no abuse of discretion by the trial court in the award of periodic alimony or in the amount thereof. The trial court was not clearly and palpably wrong.

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: BRADLEY, Judge. HOLMES, Judge

text:
    Josephine J. ARATA v. James J. GUSTIN, Jr. and Doris B. Gustin.
    Civ. 2914.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.
    William H. Saliba, Mobile, for appellant.
    Joel Thomas Daves, IV of Stanard & Mills, Mobile, for appellees.
   BRADLEY, Judge.

This case involves the breach of a lease agreement.

Josephine Arata leased to James Gustin, Doris Gustin and W. V. Martin a building for use as a nightclub. The lease was for a term of five years with rent set at $1,000.00 a month plus three percent of the gross sales. The tenants were responsible for any repairs and maintenance and could remove their equipment at the end of the term. The lease also prohibited any assignment or sublease without Arata’s written approval.

The term of the lease began in November 1978. There is a dispute over what amount of rent was paid in November, but it is apparent that $1,000.00 was received. There is a dispute as to whether this was the security deposit or rent. In any event the rent was paid in November, December and January, although it was paid late. However, Arata never received three percent of the gross sales.

In February the rent was not paid. Ara-ta went to the club to find Gustin to obtain payment of the rent. At the club she met Curly Brooks, who told her that he was subleasing the club from Gustin. Arata then leased the club to Brooks and gave notice to Gustin that he was in default.

On June 14, 1979 Arata filed suit in the district court for rent due from the Gustins. The Gustins denied liability and filed a separate suit alleging wrongful eviction and conversion. Arata moved to dismiss this case because it was not filed as a counterclaim to her suit.

On October 5, 1979 Arata obtained a judgment for $700.00. On the same day, it appears that the district court consolidated the two cases for trial. The Gustins appealed from the district court to the circuit court. The Gustins filed an amended answer in the district court and the circuit court asking for $44,000.00 and $14,000.00 for wrongful eviction and detinue-conversion, respectively. A jury trial was held in circuit court and the jury returned a verdict in favor of the Gustins for $9,000.00. Arata moved for a new trial, which was denied. As a result, she appeals to this court.

At trial Arata testified that she never received the February rental payment or the three percent of gross receipts to which she was entitled. Further, she stated that Brooks was subleasing the premises from the Gustins for $1,500.00 a month. In March, after the February rent was not paid, Arata agreed to lease the club to Brooks.

Gustin testified that Arata had agreed to take a promissory note in lieu of the February rent. Arata denied this. The promissory note was never admitted into evidence because Gustin could not prove that it had been delivered to Arata.

Gustin testified that he spent $1,600 repairing the building after vandals broke in. He also claimed that $10,000.00 worth of his equipment was still in the building. The trial judge, however, instructed the jury that Gustin could recover only the value of his improvements and not for the equipment if the jury found in his favor.

The first issue raised in this appeal concerns whether the Gustins followed the proper procedure in filing their claim. Ara-ta contends that it was error to allow the Gustins to file a separate suit in district court. She claims that under A.R.C.P. 13 their suit should have been filed as a compulsory counterclaim.

In this case Arata is appealing from the judgment of the circuit court. A.R.C.P. 13(j) provides:

Where an action is commenced in a court from which an appeal lies to the circuit court for a trial de novo any counterclaim made compulsory by Subdivision (a) of this rule shall be stated as an amendment to the pleading within 30 days after the appeal has been perfected to the circuit court or within such further time as the court may allow; and other counterclaims and cross-claims shall be permitted as in an original action.

In the present case the Gustins’ separate suit was consolidated with Arata’s suit in the district court. A judgment was rendered in favor of Arata from which the Gustins properly filed an appeal to the circuit court. Under rule 13(j) it was then proper for the Gustins to amend their pleadings to state the counterclaim. Furthermore, under rule 13(j) their amendment could exceed the jurisdictional amount allowed in the district court. We find, therefore, that on appeal to the circuit court the Gustins properly amended their pleadings so as to allow the circuit court to hear their claim.

Arata also alleges that the court erred in refusing to strike certain hearsay testimony. The Gustins were trying to show that Arata had accepted a promissory note in lieu of the February rental payment. Mr. Gustin was asked how he knew Arata had received the note. He stated that his ex-wife told him that it had been delivered. An objection on hearsay grounds was made after this answer was given. The objection was sustained. A few questions later Gus-tin was again asked what his ex-wife told him. Gustin stated that his ex-wife told him that she had delivered the note to Arata. After this answer was given, Arata moved to strike the testimony. This motion was overruled. Later, however, the trial court sustained objections to the admission of the promissory note into evidence.

Arata contends that it was error for the trial court not to strike this hearsay testimony. Under the circumstances, we cannot agree.

Both of the objections to this testimony came after the answer had been given to the question. To be timely, an objection should come after the question is propounded, but before the answer is given. C. Gamble, McElroy’s Alabama Evidence § 426.01(3) (3d ed. 1977). In this case the objections were not timely.

The first objection, even though not timely, was sustained. The sustaining of an objection to a question after it is answered does not have the effect of excluding the answer unless a motion to exclude is made and granted. Lumber Fabricators, Inc. v. Appalachian Oak Flooring & Hardwood Corp., 41 Ala.App. 570, 141 So.2d 210 (1962). Since no motion to exclude was made after the first objection, the testimony remained in the case for the jury’s consideration.

The same sequence of questions was again asked by Gustin’s attorney. Gustin, again, testified that his ex-wife told him that she had delivered the promissory note to Arata. Arata, without objecting to this testimony, moved to strike it. The court overruled the motion to strike. It should be noted that the question was not objected to and that answer was made before the strike motion was entered. Hence no error can be predicated on the court’s ruling.

After the verdict was returned, Arata moved for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Both motions were denied. Arata contends that the denial was in error, since the evidence was insufficient to support the verdict.

Under A.R.C.P. 50 Arata’s motion for j.n.o.v. was properly overruled, since she never moved for a directed verdict during the course of the trial. However, we find that the court erred in denying Arata’s motion for new trial, since we cannot find sufficient evidence to support the verdict.

The granting or denial of a motion for new trial is presumed correct and will not be reversed on appeal except for plain and palpable abuse of discretion. Holcombe v. Blackwell, 382 So.2d 566 (Ala.Civ.App.1980). In the present case, however, the evidence does not support the jury’s verdict; hence the trial court abused its discretion in overruling the motion for new trial.

We can find no evidence in this case to support the jury’s award of $9,000 to the Gustins for wrongful dispossession. In this case, Arata was claiming rent due under the lease. The Gustins counterclaimed for damages for wrongful dispossession and conversion. Their conversion claim was predicated on the fact that certain equipment, such as musical instruments, furniture, bar glasses, etc., was left on the premises when they were dispossessed. After being dispossessed, they were unable to regain custody of this equipment.

The trial judge in discussing his proposed instructions to the jury with the attorneys stated that he could find no basis for the Gustins’ claim for conversion of this equipment. Further, the court stated that Gus-tin could not claim for lost profits because these damages were too speculative. Therefore the judge stated he would instruct the jury only on the Gustins’ claim for wrongful dispossession. Finally, he stated that he would instruct the jury that if they found in favor of the Gustins then they would be entitled to recover the reasonable value of the improvements made by the Gustins. No objection was made to the instructions.

In instructing the jury, the court stated that Arata was claiming for breach of the lease and that the Gustins were claiming wrongful dispossession. He told the jury that if they found in favor of the Gustins then the Gustins would be entitled to damages for the value of improvements that they had made on the leased premises. The jury verdict was in favor of the Gustins and assessed damages at $9,000. We can find no basis for this damage award in the record.

The word “improvements” is defined as a valuable addition made to property (usually real estate), intended to enhance its value. Black’s Law Dictionary 682 (5th ed. 1979). See Mazel v. Bain, 272 Ala. 640, 133 So.2d 44 (1961). Clearly under the court’s instructions to the jury, they could consider only improvements made to the land or building and not the personal property left in the building. The only evidence of any expenditures for improvements was a bill for $1,600.00. Both Arata and Gustin testified that this bill was for expenses incurred in putting the building in good condition so that the club could open. Many of the expenses were required as a condition precedent to the club being allowed to open. These expenditures are the only ones which we can find that come within the definition of “improvements.” These were valuable additions to the building which enhanced its value.

The only other evidence concerning damages in this case involved the value of the equipment, i.e. $10,000, which was left in the building and amounts which Gustin claimed would probably have been his profits in a year. There was also a statement made by Gustin that the expenses of operating the club were about $12,000. The trial court, clearly, excluded these amounts from the jury’s consideration. As a result, the only evidence before the jury relating to the value of improvements is $1,600; therefore, there is no basis in the record for the jury’s award of $9,000.

Under these circumstances we find it to have been an abuse of discretion not to grant Arata’s motion for a new trial.

We pretermit discussion of the other issues raised in this appeal, since the remaining allegations of error concern the admission and exclusion of evidence and statements made in the course of trial, which will, in all likelihood, not occur in a new trial.

For the reasons stated, we reverse the trial court’s judgment and remand it for a new trial.

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent. After reviewing the record I must reach the conclusion that there was evidence to support the jury’s verdict.

The record reveals that, among other things, Gustin was allowed to testify that he had placed $10,000 worth of equipment in the building and that this equipment had not been returned. At the end of the trial, after the above evidence had been presented, the jury was instructed as follows: “[I]f you determine that she [appellant-Arata] did wrongfully dispossess the Defendants then they would be entitled to the damages for the value of the improvements that they had on the leased premises.”

Though the majority is undoubtedly correct that “improvement(s)” is a term which usually refers to valuable additions to real property, “improvements” was not so defined or limited in the foregoing instructions. Because “improvements” was not defined in the instructions, I cannot agree that the trial court excluded the value of the equipment from the jury’s consideration. Stated differently, since the instructions did not define “improvements,” it is my belief that the jury could properly consider the testimony as to the value of the equipment in assessing damages. That testimony, if believed, obviously supports a $9,000 verdict.

Admittedly the jury instruction in question was not a paragon of clarity. The instruction, however, was not objected to and therefore became the law of the case. Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973); Sims v. Greniewicki, 43 Ala.App. 159, 184 So.2d 157 (1966). As explained above, it is my view that, considering the law as explained to the jurors, there was sufficient evidence to support the $9,000 verdict.

I would affirm the trial court.


author: PER CURIAM.

text:
    PADDOCK, SMITH & AYDLOTTE; William Y. Aydlotte; & James F. Paddock v. WAAY TELEVISION.
    Civ. 2956.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.
    Charles R. Perry and Peter J. Anderson of Peterson, Young, Self & Asselin, Atlanta, Ga., and Robert H. Ford and Keith S. Jones of Brinkley, Ford & Fleming, Huntsville, for appellant.
    C. Howard Grisham of Bailey & Grisham, Huntsville, for appellee.
   PER CURIAM.

This is an action upon a contract by WAAY Television (appellee) against William Y. Aydlotte and James F. Paddock (appellants). The trial court, after an ore tenus hearing, found for the appellee. The appellants appeal to this court. For the reasons stated below we reverse.

The record reveals the following: During 1979, the appellee-WAAY, through its media representative in Atlanta, Georgia, entered into a contract with Paddock, Smith & Aydlotte, an advertising agency located in Atlanta. The contract required the ap-pellee to broadcast a series of commercials prepared by the agency on behalf of one of the agency’s clients. The contract referred to the agency as “Paddock, Smith & Ayd-lotte.” Nowhere in the contract was there any indication that the agency was a corporation. Furthermore, the appellee’s media representative and advertising sales manager both testified that, at the time appellee entered the contract, they were not aware that the agency was a corporation.

Pursuant to the contract, WAAY aired the commercials during the 1980 Winter Olympics. After airing the commercials, however, the appellee-WAAY was unable to obtain payment for the air time it had provided. Appellee then instituted this action against the agency and against Ayd-lotte and Paddock individually in an attempt to obtain payment for the services it rendered. The agency was ultimately dismissed as a defendant and final judgment was entered against the individual defendants in the amount of $2,524.38 plus interest.

On appeal, the appellants contend that Paddock, Smith & Aydlotte was a duly formed corporation and, consequently, the corporation and not the appellants individually is liable on the debt. This contention is supported by undisputed evidence that the agency was duly incorporated pursuant to the laws of the State of Georgia and, furthermore, that under Ga.Code Ann. § 106-301 (1968), the agency was authorized to do business under the trade name of Paddock, Smith & Aydlotte.

Appellee-WAAY, through able counsel, contends, on appeal, that the trial court’s judgment should be affirmed because the individual appellants are personally liable on the debt due to their failure to disclose that their business was a corporation.

In Alabama, where a trial court hears evidence ore tenus, its judgment comes to the appellate court cloaked with a presumption of correctness. E.g., Pipes v. Adams, 381 So.2d 86 (Ala.Civ.App.1980); Alabama Farm Bureau Mutual Insurance Co. v. Davis, 354 So.2d 15 (Ala.Civ.App.1978). The ore tenus presumption, however, has no application where, as here, the facts are undisputed. Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So.2d 792 (Ala.1978); Taylor v. Godsey, 357 So.2d 979 (Ala.1978). When the facts are undisputed, the appellate court must determine whether the trial court misapplied the law to the undisputed facts. Home Indemnity Co. v. Reed Equipment Co., 381 So.2d 45 (Ala.1980).

The issue which the trial court determined and which, in light of the above, this court must now determine is whether these individual appellants are liable for the debt of the corporation because the appellee’s representatives were not aware they were dealing with a corporation. We hold that the individuals are not liable for the debts of the corporation.

This court has been cited no Alabama authority nor have we found any ourselves that would be dispositive of the issue before us. The issue has, however, been addressed in other jurisdictions.

The case most clearly on point is Kitchell Corp. v. Hermansen, 8 Ariz.App. 424, 446 P.2d 934 (1968). The Kitchell Corporation had entered into a contract with an entity named in the contract as “Hermansen and Horwitz and Company.” In an attempt to recover on the contract, Kitchell brought this action against Hermansen and Horwitz individually. After noting that “Herman-sen and Horwitz and Company” was duly incorporated and, further, that there was no reliance by Kitchell Corporation upon the individual liability of the officers of “Her-mansen and Horwitz and Company,” the Arizona Court of Appeals held that the defendants were not individually liable for the debts of the corporation.

The New York case of Hamilton v. Davis, 90 N.Y.S. 370 (App.Term 1904) is also instructive. The case is factually very similar to Kitchell. The plaintiff and defendants entered into a contract that did not disclose that the defendants were doing business as a corporation. In fact, the court noted that the name used in the contract indicated that the defendants were doing business as a partnership. Hamilton differs from Kitchell, however, in that in Hamilton there was evidence that the defendants had deliberately concealed that they were doing business as a corporation. Furthermore, there was evidence that the plaintiff was induced to contract with the defendants upon the faith of their liability as individuals. Based upon these facts, the court in Hamilton held that the defendants would be estopped to deny liability as partners.

The above cases appear to stand for the principle that, even though an entity is unaware that it is dealing with a corporation, unless there is some proof of detrimental reliance upon the individual liability of members of the corporation, the individuals will not be liable for the debts of their corporation. See Bank of Dillon v. Murchison, 213 F. 147 (4th Cir. 1914); De Maria & Janssen, Inc. v. Baum, 227 Mo.App. 212, 52 S.W.2d 418 (1932); Mechanicville War Chest, Inc. v. Butterfield, 110 Misc. 257, 181 N.Y.S. 428 (1920). See also 19 C.J.S. Corporations § 1136 (1940).

This principle is not without support in Alabama. In Christian & Craft Grocery Co. v. Fruitdale Lumber Co., 121 Ala. 340, 25 So. 566 (1899), the plaintiff grocery company sought to enforce personal liability against certain individual defendants contending that it had dealt with the defendants as a partnership. The individuals defended by asserting that they were mere shareholders and officers of a de facto corporation and that the plaintiff had dealt with them as a corporation.

This case is similar to Hamilton in that there was evidence that the business with which the plaintiff dealt had been represented to it as a partnership. The trial court however excluded this evidence and our supreme court held that it erred in so doing. In reaching its decision the supreme court stated that such evidence was competent as tending to show that the plaintiff dealt with the defendants as a partnership. We may thus presume that the plaintiff dealt with the defendants in reliance on their personal liability as partners.

The doctrine of partnership by es-toppel is also supportive of the foregoing principle in that there must be some detrimental reliance upon the conduct or declarations of another indicating that he is a partner or the business is a partnership before the doctrine will be invoked. See Paterson v. Mobile Steel Co., 202 Ala. 471, 80 So. 855 (1919); Dicks v. McAllister, 20 Ala.App. 5, 100 So. 631 (1924); Letson v. Hall, 1 Ala.App. 619, 55 So. 944 (1911); Kitchell Corp. v. Hermansen, supra. If there is no detrimental reliance the doctrine is not available as a basis upon which to establish individual liability.

Applying the foregoing principles of law to the facts before us, we must conclude that the appellants are not individually liable.

It is undisputed that Paddock, Smith & Aydlotte was a duly formed corporation and had been since its inception. Though the contract did not indicate that the agency was a corporation and the appellee’s representatives were not informed that the agency was a corporation, there is no evidence that the agency’s status as a corporation was deliberately concealed. In fact, the agency was clearly listed as a corporation in two separate trade journals. Furthermore, there is no evidence that the agency was ever represented as a partnership or that the appellee’s representatives relied upon the individual liability of the appellants. Appellee’s advertising sales manager testified that no one at WAAY had ever dealt with the appellants individually. Additionally, when appellee’s media representative was asked why he did not consult a certain trade journal to determine the legitimacy of the advertising agency he replied that there was no reason to because he usually relied upon the client the agency represented, which, in this case, was Cotton States Insurance Company. It is thus apparent that the business organization under which the agency operated was of little consequence to the appellee.

In the final analysis, this is simply a ease in which the appellee-WAAY is attempting to impose the liability of the corporation upon the corporation’s officers. Paddock, Smith & Aydlotte was a corporation and as such was a separate entity solely liable for its debts. In light of the above discussion its status as a corporation was not vitiated by the fact that appellee’s representatives did not know it was a corporation. The corporate veil can be pierced to impose personal liability when the corporate form is used to evade personal liability. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). There is no evidence that the appellants used the corporate form to evade personal liability. Consequently, they cannot be held personally liable for the debts of the corporation.

We note that, at the time of this transaction, Alabama had no statute dealing with the name of a foreign corporation transacting business in Alabama. Even if Alabama had had such a statute, this isolated transaction would probably not have been sufficient to subject the agency to Alabama law. See Swicegood v. Century Factors, Inc., 280 Ala. 37, 189 So.2d 776 (1966). Consequently, this agency was subject solely to Georgia corporate law. Had this been a domestic corporation or a foreign corporation subject to Alabama corporate law, the result might have been different. See §§ 10-2A-25,-230, Code of Ala.1975 (1980 replacement volume).

In light of the above holding, any discussion of other issues raised on appeal is pre-termitted.

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: HOLMES, Judge.

text:
    TIDWELL INDUSTRIES, INC. v. Douglas KENNEDY.
    Civ. 3012.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.

      Samuel L. Masdon of Manasco & Masdon, Haleyville, for appellant.
    James C. Cashion of Jackson & Cashion, Haleyville, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee injured his back while at his place of employment. He brought action in the Circuit Court of Winston County seeking to recover workmen’s compensation benefits. After hearing the evidence, the trial court concluded that employee had sustained a permanent, partial loss of ability to earn to the extent of forty percent and awarded benefits accordingly. The employer appeals from this judgment and we affirm.

The dispositive issue is whether the judgment of the trial court is supported by the evidence.

Before considering the employer’s specific contentions we note that in workmen’s compensation cases the trial court’s finding is conclusive if there is any evidence in the record that will support it. Legg v. Ameri-cold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1976); Purser Steel, Inc. v. McEwen, 47 Ala.App. 263, 253 So.2d 56 (1971). This court can consider neither the weight of the evidence nor the propriety of the trial court’s finding of fact for our inquiry is limited to a determination of whether there is any evidence to support the trial court’s finding. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Legg v. Americold Compressor Co., supra.

The employer first contends the employee committed a “fraud” upon the employer due to falsely representing on employment application forms that he had experienced no previous back trouble. The employer bases this contention on evidence that employee had suffered a back injury six years earlier while playing football. However, there was some dispute as to the severity of the previous back injury and also as to whether the employee knew of the exact nature and extent of the injury. The employee’s testimony also indicated that he had had no subsequent back problems due to the prior injury. Put another way, the employee’s testimony and reasonable inferences therefrom reveal that employee suffered no significant, prior back injury.

In light of our standard of review, the above evidence clearly supports the trial court’s implicit conclusion that employee had committed no “fraud” which would preclude his recovering workmen’s compensation benefits.

The employer next contends that there is no evidence in support of the trial court’s finding that employee suffered a forty percent permanent, partial loss of ability to earn. This contention is based primarily upon medical testimony that employee had suffered a twenty percent disability to the body as a whole due to the injury. However, the amount of disability to the body as a whole is not determinative of the extent of loss of ability to earn. Orkin Exterminating Co. v. Williams, 389 So.2d 935 (Ala.Civ.App.1980). In determining the extent of loss of ability to earn the trial court may properly consider the employee’s education and vocational training. Kroger Co. v. Millsap, supra. The employee in this case had only an eighth grade education and had no vocational training. The only type work he had ever performed was manual labor. With this back injury, employee’s future as a manual laborer was obviously very limited.

The employee’s lack of education and vocational training coupled with the medical testimony is clearly sufficient evidence to support the trial court’s judgment regarding the employee’s loss of ability to earn.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Frank HUGHES v. Lorene MORRIS.
    Civ. 3027.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.
    M. U. Griffin of Griffin & Griffin, Huntsville, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a garnishment contest.

The litigation in the trial court arose in the following manner: In December, 1977, a monetary judgment was rendered in favor of Mr. Hughes and against Vance Morris and Vance Morris Motor Company (the company). The company repaired a customer’s vehicle in March, 1980 and, for the repair bill, he gave an insufficient fund check payable only to Vance Morris, who, in the course of subsequent events, charged the customer with the criminal offense of worthless check. The customer pled guilty to that charge and paid the amount of the check as restitution to the circuit clerk. In an attempt to collect his judgment, Mr. Hughes instituted garnishment proceedings against the circuit clerk for that money. Mrs. Lorene Morris, Vance Morris’s wife, filed her claim to the check proceeds, her contention being, in substance, that she was the owner of the company and was entitled to the check proceeds. The real issue of fact at the jury trial of Mrs. Morris’s contest of the garnishment concerned the ownership of the company.

All facts appearing herein are from the testimony of Mrs. Morris or from exhibits introduced at the trial.

Her husband was the only Vance Morris with whom she was acquainted. Vance Morris had originally owned the company, but, over fifteen years ago, she became its sole owner and operator. It is a sole proprietorship. Tags were bought for five business vehicles in her individual name. For ad valorem tax purposes, she assessed the business equipment, tools and machinery as being owned by “Lorene M. Morris, D/B/A ...” the company, and some business licenses likewise had been issued in that manner, while other such licenses were issued only to the company itself without mentioning Mrs. Morris.

The company name appeared on a sign located at the front of the business; it was placed upon three trucks or wreckers as well as company letterheads and invoices; and it was listed in the telephone directory. In none of those instances did Mrs. Morris’s name appear in connection therewith. Under the company’s name upon the repair invoice appear the printed words, “Serving Huntsville, Alabama for Over 36 Years.”

She is the only person with signature authority as to the company bank account. Mrs. Morris normally works a full business day in keeping the books and paying the five employees and the company bills. Her husband talks to customers, prepares repair bill invoices and orders parts. She does not pay Mr. Morris any salary or wages for his labors. Neither of them do any actual repair or body work. They live upon what they make from the business and file joint income tax returns.

The customer’s check, which had been made payable to Vance Morris for the repair bill, bounced. A replacement check was given by the customer. It was also payable only to “Vance Morris.” It likewise was returned for insufficient funds. Mrs. Morris drafted and mailed a letter to the customer over the company’s letterhead demanding payment of that check. It concluded the demand as follows:

We await your reply.
/s/ Vance Morris
VANCE MORRIS
Vance Morris Motor Company

She testified that she signed her husband’s name to that demand letter. When the customer failed to make the check good, Vance Morris charged him with the criminal offense, which resulted in the payment of restitution of the funds from which arose the present litigation.

At the conclusion of all of the evidence in the garnishment contest, and outside of the presence of the jury, the trial court granted Mrs. Morris’s motion for a directed verdict. When the jury returned, but before the trial court informed them of its action, Mrs. Morris- withdrew her motion for a directed verdict, but the trial court stated that it had already been granted, and later informed the jury to that effect and excused the jury.

• Mr. Hughes timely took his appeal and was the only party to favor this court with a brief.

The applicable rules of review of a trial court’s action in granting a motion for a directed verdict have been aptly summarized in Baker v. Chastain, 389 So.2d 932, 934 (Ala.1980), as follows:

If the evidence presents a mere gleam, glimmer, spark, smallest trace or scintilla to support the theory or to sustain the issue, the trial court must submit the question to the jury. Orange v. Shannon, 284 Ala. 202, 224 So.2d 236 (1969). When a directed verdict is requested, the entire evidence must be viewed in the light most favorable to the opposing party, Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), and it should be refused where reasonable inferences may be drawn from the evidence unfavorable to the party requesting it or where there is a conflict in any material matter at issue. Baker v. Patterson, 171 Ala. 88, 55 So. 135 (1911). We must allow such reasonable inferences as the jury was free to draw, not merely those inferences which we think more probable. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594 (1967), and cases there cited.

After reviewing the evidence in this light, we have no alternative but to conclude that there was a scintilla of evidence which disputed, or tended to dispute, Mrs. Morris’s claim to be the sole proprietor of the company. Among such evidence lending valid contra inferences to her ownership contention was the following: Both checks were payable to Vance Morris individually, who personally, and not being identified thereon as a company representative, instituted the bad check prosecution against the maker of the checks. Vance Morris was the name purportedly signed to and typed on the demand letter just before the typed company name on the demand letter prepared by, signed and sent to the customer by Mrs. Morris. Vance Morris was active in the business which bore his name. When considered with all of the evidence, accumula-tively, those facts, and tendencies therefrom, are such that the trial court should have submitted that factual issue to the jury for its determination rather than granting the motion for a directed verdict. We reverse and remand.

Because different facts and predicates may develop, be established or be omitted at any new trial of the garnishment contest, we pretermit any decision upon any complaint of Mr. Hughes regarding evidentiary matters. Such disputed evidence, or objections thereto, may not be in the same posture after both trials.

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 of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Virginia HARRIS v. SPEEDEE FOOD MART.
    Civ. 3034.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.
    William P. Cobb, II, of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Thomas H. Keene of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

On May 1, 1977, Virginia Harris, while in the course of her employment at Speedee Food Mart, injured her back. She sought medical treatment from several physicians and underwent surgery in June 1978. Home Indemnity Company, insurer for Speedee Food Mart, paid Mrs. Harris temporary total disability benefits until the latter part of January 1980, at which time such payments ceased. The cessation of payments prompted Mrs. Harris to contact Mr. Lonnie McCarley of Home Indemnity Company. Mr. McCarley informed her that his company would no longer pay temporary total disability benefits and that pursuant to an examination of Mrs. Harris by Dr. John Hackman, her permanent partial disability rating was ten percent. Mrs. Harris then hired an attorney to represent her on her claim. By letter dated June 23, 1980, Mr. McCarley itemized Mrs. Harris’ payments and based upon a ten percent permanent partial disability rating stated, “We owe you $1,050.79 for your permanent partial rating.” The letter went on to say that medical benefits would continue to be paid for bills directly related to the May 1, 1977, injury. The letter concluded: “Please contact me so that we may have this court approved.” Mrs. Harris did contact Mr. McCarley in late June or early July 1980, and informed him that she would consult with her attorney. With Mrs. Harris’ express permission, her attorney informed Mr. McCarley that the ten percent rating was not acceptable. By letter of July 10, 1980, upon a recomputation of payment figures, Mr. McCarley stated to Mrs. Harris’ attorney, “$1,017.05 we owe Mrs. Harris for Permanent Partial.” Mrs. Harris’ attorney replied as follows by a letter dated July 22, 1980: “[W]e cannot agree that Mrs. Harris is capable of returning to work... I do not feel that we can agree on a settlement of this case outside of litigation.” Mrs. Harris testified by deposition that she had instructed her attorney to file suit if necessary. Upon learning that he had not done so, she retained another attorney, who filed the instant suit on March 5, 1981.

Speedee Food Mart raised the one-year statute of limitations as a defense. After submission of the case on the pleadings and depositions, the trial court held that the action was barred by the statute of limitations and entered judgment for Speedee Food Mart. Mrs. Harris brings this appeal for our review by way of certiorari.

The sole issue presented is whether there was an admission of liability on the part of Speedee Food Mart so that it should be estopped to assert the statute of limitations.

Section 25-5-80, Code (1975) provides in pertinent part:

In case of a personal injury, all claims for compensation under this article and under article 2 of this chapter shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable ... or unless within one year after the accident one of the parties shall have filed a verified complaint. .. . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment.

The commencement of the action within the prescribed time limit is an indispensable condition to the defendant’s liability and the plaintiff’s right to sue. Morgan v. Rheem Manufacturing Company, 395 So.2d 1030 (Ala.Civ.App.1981). In the instant case, Mrs. Harris received the last compensation payment for temporary total disability in January 1980. Suit was not filed on her behalf until March 5, 1981, over one year later.

Mrs. Harris contends, however, that the words “we owe” contained in the letters from Mr. McCarley, constitute an admission of liability which tolls the statute. See, Langham Small Motors v. Thomas, 390 So.2d 1055 (Ala.Civ.App.), cert. denied, 390 So.2d 1058 (Ala.1980). Policy reasons for allowing the tolling of the statute of limitations in workmen’s compensation cases have been stated as follows:

[W]hen acts are done by the employer which lead the employee to believe that liability under the statute is admitted and will not be contested, ... the running of the statute of limitations may be tolled, and it is immaterial whether the employee relies upon actual fraud or mere estoppel. Dorsey v. United States Pipe & Foundry Company, 353 So.2d 800 (Ala.1977).

In the instant case, it is undisputed that Mrs. Harris and her first attorney were aware of the cessation of compensation payments in January 1980. Furthermore, Mrs. Harris’ deposition and letters to Mr. McCar-ley from her attorney show, clearly, that both looked upon Mr. McCarley’s letters as offers of settlement. These offers were rejected and Mrs. Harris understood that she would bring suit to recover the compensation to which she felt she was entitled. Mr. McCarley even agreed to accept service on behalf of Home Indemnity Company. There is nothing in the record before us to indicate that Mrs. Harris was led to believe that liability was admitted or that filing suit was unnecessary.

In Floyd v. Housing Authority of the City of Troy, 397 So.2d 136 (Ala.Civ.App.), cert. denied, 397 So.2d 139 (Ala.1981), this court held similar correspondence to be merely offers of settlement. In Floyd we noted that the insurer had not said or done anything to lead the employee to believe that it was unnecessary to file suit within one year after the last temporary total disability payment. It was assumed that the employee’s attorney was aware of the period of limitations within which suit must be filed.

As we stated in Langham Small Motors v. Thomas, supra,

It is important, particularly in workmen’s compensation cases, that extra-judicial settlements be explored and reached if possible. To interpret offers to do so, as in this case, as admissions of liability would seriously deter such intercourse between parties.

On appeal of workmen’s compensation cases by means of certiorari, our scope of review is limited to questions of law and to an examination of the evidence to determine if any legal evidence exists to support the finding of the trial court. Agan v. Union Foundry Company, Inc., 404 So.2d 71 (Ala.Civ.App.1981). In the instant case, the trial court’s finding that Speedee Food Mart should not be estopped to assert the statute of limitations is amply supported by the record. Judgment for Speedee Food Mart was proper.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Unlike compensation payments, medical payments do not toll the statute of limitations. Blackmon v. R. L. Zeigler Company, 390 So.2d 628 (Ala.Civ.App.), cert. denied, 390 So.2d 635 (Ala.1980).


text:
    David Grover HOLMES v. Rosalyn Connor HOLMES.
    Civ. 2874.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.

      Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    No brief for appellee.
   ON REHEARING

HOLMES, Judge.

This court’s original opinion dated January 13,1982 is withdrawn and the following is substituted therefor:

The trial court modified a divorce decree; the husband appeals and we affirm in part and reverse in part.

The parties were divorced in 1979. An agreement concerning a division of property, child support, and other related matters was incorporated into the decree of divorce.

In 1980, the husband filed a petition to require reformation of a deed. Specifically, the wife had refused to sign a proper deed to certain property awarded to the husband.

The trial court granted summary judgment in favor of the husband regarding the deed. The husband next pertinently amended his petition to include a request for an attorney’s fee incurred by him in obtaining the deed reformation. Additionally, the husband by this amendment sought credit for certain educational grants awarded to his sons.

The wife in response to the husband’s amended petition requested, pertinent to this appeal, an award for college expenses and an increase in child support for a minor child.

After an ore tenus hearing, the trial court granted the wife’s request for an increase in child support; and awarded $6,000 to the wife and two adult children “jointly and severally” for college expenses.

As indicated, the husband appeals and specifically contends the trial court erred in the award of $6,000 for college expenses; in increasing the child support from $250 to $425 per month; and in refusing his request for an attorney’s fee.

For, hopefully, clarity this court will discuss the pertinent facts as they relate to the issue presented. We would note that the appellee wife has not favored this court with a brief.

I

The original decree of divorce incorporated an agreement of the parties which in pertinent part provided as follows:

7. The husband agrees to pay a reasonable sum for books, supplies, tuition, room and/or board at school and transportation expenses for each said child of the parties for and during four (4) years of school at the post high school level. However, the husband will not pay any sum for room and/or board if the said minor child is under nineteen (19) years of age

The record, viewed with the attendant presumptions, reveals the following evidence regarding this aspect of the trial court’s decree.

The oldest son turned nineteen one month after the divorce. He first attended a community college, and then transferred to a four year state university. The cost, to date, of the oldest son’s college education after he turned nineteen amounts to $5,211. The son’s car insurance amounts to $542. The son received $2,419 in basic educational opportunity grants. The evidence indicates the husband has contributed $948 for expenses incurred by the oldest son for transportation, tuition, supplies, room and board.

The youngest son reached age nineteen one year after the divorce. He initially was a student at a four year state university, then transferred to a small, private college. Tuition and expenses for the youngest son’s college education after age nineteen equal $4,303. Car insurance for this son amounts to $306. The son received $2,402 in grants from the university. The husband has not contributed to the youngest son’s college expenses since the child turned nineteen.

With these facts before it, the trial court ordered the husband to pay $6,000 for expenses incurred by his sons for books, supplies, transportation, tuition, room and board.

Without an agreement to the contrary, a parent is under no legal obligation to support or educate a child after it attains the age of majority. Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980), and cases cited therein. In this instance, however, the husband did agree in paragraph 7 of the divorce decree to pay reasonable expenses for the post high school education of his children.

The husband apparently concedes he is obligated under the divorce decree to provide for his adult children’s college education. The issue on appeal is whether $6,000 constitutes a reasonable expense.

The evidence in this action was conflicting as to the actual reasonable college expenses incurred by the two sons. The sons and wife, through testimony and exhibits, contended at trial the husband had failed to fulfill his obligation under paragraph 7 of the decree. The husband, representing himself at trial, argued he had paid more than reasonable costs for the two boys to attend college.

The trial court’s findings, in this case favoring the wife and sons, are presumed correct and will not be overturned on appeal without a showing of an abuse of discretion. Skipper v. Skipper, 380 So.2d 921 (Ala.Civ.App.1980). The testimony at the hearing and the exhibits entered into evidence, as indicated above, only support a finding that the husband was obligated to pay $4,593 for the sons’ college expenses.

The trial court’s order requires the $6,000 be paid to the wife and two sons, jointly or severally. The husband, through able counsel, expresses concern regarding the wording of the trial court’s order. The husband contends that he may now be liable to pay $6,000 to each son and his ex-wife if each should decide to levy execution as a judgment creditor.

While it is not entirely clear how the trial court intended the money to be distributed, it is, to this court, as noted above, clear what the trial court found. The trial court determined from the evidence presented that the husband was obligated, pursuant to paragraph 7, at time of trial to pay an additional $6,000 for his children’s college education.

In view of the wording of the trial court’s order and the concern of the husband about the manner of payment, we find the $6,000 (now $4,593) should be paid to the trial court. Upon appropriate orders of the trial judge, the court may then distribute the monies as intended. This action will afford the husband any “protection” he perceives necessary from possible multiple payment of the judgment, which is now to be $4,593.

Hence, the trial court’s order requiring the husband to pay $6,000 is not supported by the evidence. That aspect of the appeal is remanded to the learned trial judge for entry of a finding that the husband’s obligation is $4,593.

II

The husband next contends the trial court erred to reversal in increasing the child support payments from $250 to $425.

As indicated, the parties were divorced in 1979 and the amount of support the father was required to pay for the parties’ ten year old minor child was $250.

It is axiomatic that a modification in child support must be founded upon changed circumstances as to the needs of the children and the means of the parent to pay. Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979).

Although only eighteen months have passed since the 1979 decree, the pertinent changes in circumstances appear to be the following:

The husband’s gross income has increased from $2,244 per month at the time of the divorce to $2,665 per month at the time of the modification proceeding. The fact that a husband’s annual gross income has increased by approximately $5,000 is a material factor in sustaining an increase in the amount awarded for child support upon divorce. Young v. Young, 351 So.2d 611 (Ala.Civ.App.1977).

Increased cost of food, clothing and transportation will justify an increase in child support. Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1118 (Ala.1980). The evidence in this action indicates the minor daughter has matured early, requiring significant expenditures for clothing and food. The daughter has outgrown her children’s sized clothes and now wears women’s sizes. Costs for food and transportation for the daughter have risen, due to economic inflation as well as her rapid growth.

In view of the increased needs of the minor child, coupled with the increased ability of the husband to pay, this court can not reverse the trial court’s action in modifying the monthly child support payments from $250 to $425. While the increase is a liberal one, to reverse would be to substitute this court’s judgment for that of the trial court. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

Ill

The husband’s last contended error is to the effect that the trial court abused its discretion in denying the husband’s claim for an attorney’s fee in connection with his petition regarding the “reformation” of a deed. Specifically, the trial court dismissed the husband’s claim for an attorney’s fee.

As stated earlier, a summary judgment had been issued in favor of the husband and against the wife compelling her to execute a corrected deed for the wife’s interest in property awarded to the husband in the original divorce decree. The husband then filed an amended complaint seeking to recover from the wife the legal fees and costs incurred in the summary judgment proceeding.

The trial court, as indicated, denied the monetary claims of the husband and dismissed the amended complaint.

An award of attorneys’ fees in a “divorce action” is a matter within the sound discretion of the trial court. Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980). In the instant action, we find no error in the trial court’s denial of the husband’s claim for an attorney’s fee and the failure to award an attorney’s fee to the husband in connection with his action to require the wife to execute a deed.

The case is due to be affirmed in part, reversed in part, and remanded for entry of a judgment not inconsistent with the above.

APPLICATION FOR REHEARING GRANTED.

OPINION SUBSTITUTED.

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

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


text:
    Alfonzo DULANEY v. STATE.
    4 Div. 766.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.
    Don C. Dickert, Brundidge, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Pike County returned an indictment for robbery against the appellant, Alfonzo Dulaney, and upon arraignment appellant entered a plea of not guilty. Appellant was found guilty as charged and duly sentenced to 35 years imprisonment.

The appellant was at all proceedings in the trial court, and is in this Court represented by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief that the issues presented for review by this Court are: First, whether denying a defendant the opportunity to impeach testimony of the complaining witness by showing witness’ adjudication of guilt of an offense involving moral turpitude under the Youthful Offender Act is error; Second, whether defendant was placed in double jeopardy after trial court granted state’s motion for mistrial where question complained of was not answered and the defendant was put on trial the next day.

The record certified to this Court in this case contains two separate and distinct proceedings. One, the first proceeding was on May 29, 1979. The matter terminated by a motion of the state for a mistrial being granted and the jury discharged. This is not a judgment of conviction. The Code of Alabama, 1975, Section 12-22-130 specifically provides that: “A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the supreme court or court of criminal appeals may appeal from the judgment of conviction to the appropriate appellate court.”

We hold that an appeal does not lie from the circuit court to this Court from the circuit court’s ruling granting state’s motion for a mistrial. There is no judgment of conviction. Code of Alabama, 1975, Sec. 12-22-130; Forrest v. State, Ala.Cr.App., 344 So.2d 231; State v. Gautney, Ala.Cr.App., 344 So.2d 232; Simmons v. State, 44 Ala.App. 626, 218 So.2d 159.

The actions of the trial court complained of during the appellant’s trial on May 30, 1979 that concluded with the appellant’s conviction and sentence to the penitentiary for 35 years arose out of the following facts: We quote from the record of the proceedings on May 30, 1979:

“(On Wednesday morning, May 30, 1979, with the defendant back before the Court with his attorney the jury was qualified specially for this case to which the State and defendant stated they were satisfied with the qualifications. The jury was then struck and the following took place with the jury in the box.)
“THE COURT: Ladies and Gentlemen, there has been reached between the defendant and the District Attorney with approval by all of us that you can separate. I see some of you have been on juries before and you know what that means. You are not going to be locked up and kept together under the supervision of some Bailiff or someone and you will be allowed to go your separate ways, but I would like to caution you not to discuss the case with anybody. You haven’t heard a single thing about it. It is just as if nothing had ever transpired and we have a short legal matter to put into this machine before we start and the easiest way to do it is just take the machine back there and put it in there and get out of here. So if you want to keep your seat feel free to do that. If you want to get up, I assure you we will be back within less than five minutes.
“(At this point the Court, Assistant District Attorney, Defendant and his Attorney retired to a witness room and the following took place out of the hearing of any of the jurors selected to try this case.)
“THE COURT: To get to the place for Mr. Dickert, on May 29, 1979, the case of State versus Alfonzo Dulaney was called for trial, jury selected, opening arguments made and the prosecuting witness Mike Johnson was on the witness stand and subjected to cross examination by Mr. Dickert. Mr. Dickert asked the witness have you been convicted, in substance, of a crime at which time Mr. Barr, prosecuting Attorney, objected. The jury was removed from the courtroom and it was made known by the Court who has personal knowledge of the following fact: The witness Mike Johnson with counsel Dickert representing him entered a plea of guilt as a youthful offender and was adjudicated a youthful offender. A mistrial was declared for the court was of the opinion such question could not be eradicated from the minds of the jury the likelihood or not that the witness had a criminal record.
“Now, Mr. Dickert on May 30th, 1979, in a new case of Alfonzo Dulaney desires to interrogate the witness Mike Johnson as to his criminal record, if any, and former convictions.
Is that correct?
“MR. DICKERT: That is correct, Your Honor, for purpose of discrediting his credibility as a witness and impeachment.
“THE COURT: Now, if Mr. Dickert asks that question to Mr. Mike Johnson the Court is going to sustain objection to it and declare another mistrial, because the Alabama Youthful Offender Act expressly declares the public policy of this State is that an adjudication as a youthful offender is no conviction of crime. The record is confidential, secret, not subject to disclosure and the statutes and common law of this State provide that the credibility of a witness can only be impeached by the showing of a crime and conviction involving moral turpitude and an adjudication as a youthful offender is not such. To which Mr. Dickert in the presence of his client Dulaney strenuously objects excepts and objects and contends it denies him equal protection of the law and violates fundamental fairness and due process. Do you say that?
“MR. DICKERT: Yes, sir. I have a couple of other items to mention. I think this is clear from what you said, but I want to make sure. The witness never answered the question, is that correct?
“THE COURT: He never did.
“MR. DICKERT: The other thing is that we are now about to go to trial on the same indictment charging the same facts allegedly constituting the same offense and at this time I would like to plead former jeopardy on the behalf of my client in violation of the Constitution Of Alabama and United States Constitution.
“THE COURT: I’d like to ask you if you did not represent Mr. Mike Johnson on youthful offender application and conviction and sentence?
“MR. DICKERT: That is correct, Your Honor.
“THE COURT: And you were aware or had knowledge of his conviction as a youthful offender and you were aware of the Alabama Youthful Offender Act provisions when you asked the question?
“MR. DICKERT: Yes, sir.
“THE COURT: Therefore, it is the ruling of the Court if this be appropriate to rule on the plea of former jeopardy that error was committed intentionally with full knowledge of the provisions and mandate of the fundamental law of this State. It did not occur at any behest of the State or Court. There was no intentional mistrial created by the State. It came solely from the Defendant’s position and he now cannot insist upon jeopardy when error arose from his behest and manifest justice in the interest of the total society and the State of Alabama where error does not spring forth from prosecutorial error or Judge made error will not permit a Defendant to escape the right of the State to put him to trial on a criminal accusation. So motion for plea of former jeopardy, is appropriate, is denied at this point.
“(At this point all persons connected with the trial of this cause including the Defendant returned to the courtroom before the jury.)
“(The attorneys in this cause made their opening statements to the jury to which there were no objections made by either side.)
“MR. BARR: The State calls Mike Johnson.”

Appellant’s contention that Section 15-19-7, Code Of Alabama, 1975, is unconstitutional and in conflict with the 6th Amendment of the Constitution Of The United States Of America, and Section 6 of the Constitution Of The State Of Alabama Of 1901 because it restricts appellant’s right of cross-examination.

The constitutionality of a statute should not be considered by this Court on appeal from the circuit court unless essential to the decision of the actual case before this Court. A decision in this case can be reached without deciding the constitutionality of Section 15-19-7, Code Of Alabama, 1975. (Acts 1971, 3rd Ex. Sess., No. 335, P. 4622, Sec. 6.) Fleenor v. State, Ala.Cr.App., 372 So.2d 902, certiorari denied, Ala., 372 So.2d 904; Smith v. Speed, 50 Ala. 276; Meeks v. Town Of Hoover, 286 Ala. 373, 240 So.2d 125; Ex parte Alabama Textile Manufacturers Ass’n, 283 Ala. 228, 215 So.2d 443; State v. Simonetti, Inc., 273 Ala. 571, 143 So.2d 444; Knox v. State, 38 Ala.App. 482, 87 So.2d 671.

We hold that under the facts in this case it is not necessary that this Court comment on the constitutionality of the provisions of Section 15-19-7, Code of Alabama, 1975, a part of the Alabama Youthful Offender Act.

It further appears from the record before us that the appellant was duly arraigned on the indictment on May 16, 1979, and entered a plea of not guilty. That the cause was set down for trial for the week beginning Monday, May 28, 1979, and was reached for trial on May 29, 1979, which trial terminated when the trial court granted state’s motion for a mistrial, and continued the case to May 30, 1979, which terminated with a verdict of guilty and a judgment sentencing appellant to 35 years in the penitentiary.

It is the general rule that pleas of former jeopardy must be in writing and should be filed before, or simultaneously with, a plea of not guilty, and the failure to file such plea of former jeopardy at that time is generally considered a waiver of the right to assert it, and in the absence of a plea of former jeopardy this Court is without authority to consider it. Hancock v. State, Ala.Cr.App., 368 So.2d 581, certiorari denied, Ala., 368 So.2d 587.

When the appellant was arraigned on May 16, 1979, and later put on trial on May 29, 1979, the rights to a plea of former jeopardy were not in existence because the appellant had never been put on trial on the indictment, and did not come about until the conclusion of the hearing before the court on May 29, 1979. The morning of May 30, 1979 was the first opportunity for the appellant to present the defense of former jeopardy to the court, which the court, out of the presence of the jury, plainly denied the appellant the right to plea former jeopardy. Under the facts in this case, we feel that the trial court should have allowed the appellant to properly present the facts upon which he relies for his plea of former,jeopardy to this Court. We do not think that a presumption of waiver of constitutional rights should apply before the rights exist. We, therefore, hold that under the facts in this case the trial court erred when it refused to allow appellant to file a plea of former jeopardy. Windham v. State, 41 Ala.App. 280, 129 So.2d 338.

For the error pointed out, the judgment of the trial court should be, and is hereby, reversed, and this cause is remanded for a new trial.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a Retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby REVERSED AND REMANDED.

REVERSED AND REMANDED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte State of Alabama, ex rel. Attorney General. (In re: Alfonzo DULANEY v. STATE of Alabama).
    79-850.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen. of McLain & Hampton, Montgomery, for petitioner.
    Don C. Dickert, Brundidge, for respondent.
   SHORES, Justice.

We granted the State’s petition for cer-tiorari to review the decision of the Court of Criminal Appeals which reversed the conviction of the defendant and held that the trial court erred “when it refused to allow appellant to file a plea of former jeopardy,” citing Windham v. State, 41 Ala.App. 280, 129 So.2d 338 (1961).

We reverse and remand. The record shows unequivocally that the defendant was allowed to plead former jeopardy. The defendant was first put to trial on May 29, 1979. One Johnny Michael Johnson was the first witness called to testify for the State. He testified that the defendant called him over to the corner of Troy Furniture Mart as he and his wife were leaving the store and robbed him at knifepoint of $130. On cross-examination of this witness by the defendant’s counsel, the following occurred:

Q. Mr. Johnson, isn’t it true or could you tell the Court whether or not you have ever been convicted of a crime?
MR. BARR [prosecuting attorney]: Your Honor, at this point I am going to object.
THE COURT: Sustained.
MR. BARR: And ask that we go outside the presence of the jury before he goes any further if he does.

Thereupon the court excused the jury and the following occurred:

THE COURT: I’ll have something to say about this. He has never been convicted of a crime to my knowledge. He was convicted as a youthful offender, which is not admissible. Not permitted under the statute and that is impermissible to ask by law.
MR. DICKERT: Yes, sir.
THE COURT: If you have got knowledge of a conviction—
MR. DICKERT: I’d like to argue a point. Not necessarily that, but in connection with that.
THE COURT: Well, the legislature precluded inquiry. He has no criminal conviction or record and is barred from further inquiry by law. It can’t be used for impeachment. Unless you have got evidence of another conviction or record it is totally inadmissible for any purpose.
MR. DICKERT: Well, Your Honor, the point I would like to make is, and I realize that it may not affect the ruling of the Court, but for the record I would like to make the argument that the age of the witness at the time he was adjudicated whatever he might have been adjudicated of really has a bearing on the rights of the defendant in the case and I don’t feel that it is fair to the defendant in this case for the age of the witness to make a difference as to whether or not his credibility can be attacked. My point is that if he had been twenty-one years old at that time then his credibility would certainly be something that we could attack and the fact that he was able to take advantage of youthful offender statute denies in this case this defendant the opportunity to attack the witness’ credibility and for that reason I feel that it is a denial of due process and equal protection of the law.
THE COURT: You may have your feelings, but until the legislature rules otherwise I am going to overrule you, and I am going to be tempted to tell the ladies and gentlemen of the jury that that was an incorrect question and improper and not subject of inquiry and that should have no bearing or part on the consideration of the evidence in this case, because we all know the youthful offender act' explicitly provides it shall be sealed and confidential.
MR. BARR: Your Honor, the State is going to move for a mistrial at this point.
THE COURT: Granted. We will try Mr. Dulaney tomorrow morning before another jury at nine o’clock a. m.
(The jury was brought back into the court room and with the defendant and his attorney present the following announcement was made.)
THE COURT: Ladies and Gentlemen, I have entered a mistrial in the case on motion of the State. Your services in this case will no longer be required. You’re discharged. The case will be handled at a later time and I need comment no further other than I have ruled as a matter of law an improper question was asked that could not be eradicated from your minds, it would leave you in question throughout the remainder of the trial. No matter what I said you would have some thing going on in your mind about what the answer ought to have been or what you would like to know or you thought you might ought to know. So you are free to go.

On Wednesday morning, May 30, 1979, with the defendant back before the court with his attorney, a different jury was qualified, and the following then took place outside the presence of the jury:

THE COURT: To get to the place for Mr. Dickert. On May 29, 1979, the case of State versus Alfonzo Dulaney was called for trial, jury selected, opening arguments made and the prosecuting witness Mike Johnson was on the witness stand and subjected to cross examination by Mr. Dickert. Mr. Dic-kert asked the witness have you been convicted, in substance, of a crime at which time Mr. Barr, prosecuting attorney, objected. The Jury was removed from the courtroom and it was made known by the Court who has personal knowledge of the following fact: The witness Mike Johnson with counsel Dic-kert representing him entered a plea of guilt as a youthful offender and was adjudicated a youthful offender. A mistrial was declared for the Court was of the opinion such question could not be eradicated from the minds of the jury the likelihood or not that the witness had a criminal record.
Now, Mr. Dickert on May 30th, 1979, in a new case of Alfonzo Dulaney desires to interrogate the witness Mike Johnson as to his criminal record, if any, and former convictions.
Is that correct?
MR. DICKERT: That is correct, Your Honor, for purpose of discrediting his credibility as a witness and impeachment.
THE COURT: Now, if Mr. Dickert asks that question to Mr. Mike Johnson the Court is going to sustain objection to it and declare another mistrial, because the Alabama Youthful Offender Act expressly declares the public policy of this State is that an adjudication as a youthful offender is no conviction of crime. The record is confidential, secret, not subject to disclosure and the statutes and common law of this State provide that the credibility of a witness can only be impeached by the showing of a crime and conviction involving moral turpitude and an adjudication as a youthful offender is not such. To which Mr. Dickert in the presence of his client Dulaney strenuously objects, excepts and objects and contends it denies him equal protection of the law and violates fundamental fairness and due process. Do you say that?
MR. DICKERT: Yes, sir. I have a couple of other items to mention. I think this is clear from what you said, but I want to make sure. The witness never answered the question, is that correct?
THE COURT: He never did.
MR. DICKERT: The other thing is that we are now about to go to trial on the same indictment charging the same facts allegedly constituting the same offense and at this time I would like to plead former jeopardy on the behalf of my client in violation of the Constitution of Alabama and United States Constitution.
THE COURT: I’d like to ask you if you did not represent Mr. Mike Johnson on youthful offender application and conviction and sentence?
MR. DICKERT: That is correct, Your Honor.
THE COURT: And you were aware or had knowledge of his conviction as a youthful offender and you were aware of the Alabama Youthful Offender Act provisions when you asked the question?
MR. DICKERT: Yes, sir.
THE COURT: Therefore, it is the ruling of the Court if this be appropriate to rule on the plea of former jeopardy that error was committed intentionally with full knowledge of the provisions and mandate of the fundamental law of this State. It did not occur at any behest of the State or Court. There was no intentional mistrial created by the State. It came solely from the defendant’s position and he now cannot insist upon jeopardy when error arose from his behest and manifest justice in the interest of the total society and the State of Alabama where error does not spring forth from prosecutorial error or Judge-made error will not permit a defendant to escape the right of the State to put him to trial on a criminal accusation. So motion for plea of former jeopardy ... is denied at this point.

Manifestly, the defendant was allowed to plead former jeopardy, his lawyer strenuously argued the plea, and the trial court denied it; we think properly so.

It is clear from the record that the trial judge was of the opinion that the effect of the question put by the defendant’s lawyer to the State’s witness could not be eradicated. The trial court was correct in its interpretation of the Youthful Offender Act and, thus, correctly disallowed cross-examination on that point. Whether a mistrial was required at that time depends upon the circumstances in each case. We do note that no objection to the mistrial appears in this record. However, as was the case in Woods v. State, 367 So.2d 982 (Ala.1978), we need not address that point since we agree that it was not error to grant the mistrial. In that case, the rule with respect to mistrials was succinctly stated as follows:

Whether being placed on trial after a mistrial is declared constitutes double jeopardy depends upon the circumstances surrounding the mistrial. Manifest necessity must be demonstrated before a mistrial is declared over the objection of the defendant. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In this case there was no objection. However, we need not address the effect of the failure to object since we find that a manifest necessity was demonstrated sufficient to permit the trial judge, in the exercise of his broad discretion, to declare the mistrial and discharge the jury without a verdict.
There is no constitutional requirement that a mistrial be absolutely necessary. Only a high degree of necessity need be demonstrated. A trial judge is allowed the exercise of broad discretion in deciding whether that high degree of necessity is present. Neither is there any constitutional requirement that the finding of manifest necessity be explicit. Arizona v. Washington, supra. See also Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967).

We hold that the Court of Criminal Appeals erroneously held that the defendant in this case was denied his right to plead former jeopardy on his retrial. The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Alfonzo DULANEY v. STATE.
    4 Div. 766.
    Alabama Court of Criminal Appeals.
    Feb. 24, 1981.
    Rehearing Denied March 17, 1981.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF SUPREME COURT OF ALABAMA, 410 So.2d 122 (1981) NO OPINION.

Writ quashed, Ala., 410 So.2d 126.

All the Judges concur.


text:
    Ex parte Alfonzo DULANEY. (In re: Alfonzo Dulaney v. State of Alabama).
    80-443.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Don C. Dickert, Brundidge, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   PER CURIAM.

Writ quashed as improvidently granted 410 So.2d 126 (Ala.Cr.App.).

All the Justices concur.


author: HARRIS, Presiding Judge. BOOKOUT, Judge,

text:
    Charles Alfred CHANDLER v. STATE.
    1 Div. 136.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Jan. 20, 1981.

      Orson L. Johnson, Curtis W. Gordon, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

On April 5, 1978, the Grand Jury of Baldwin County, Alabama, returned an indictment against appellant charging him with manslaughter in the second degree. On July 18, 1978, appellant, in the presence of his retained counsel, was arraigned on said indictment, waived reading thereof, and pleaded not guilty. On September 19, 1979, appellant made a written demand for trial by jury in this case. His demand for a jury trial was denied by the trial court on September 24, 1979. On January 24, 1980, appellant was tried on said indictment by the court without the intervention of a jury. He was found guilty and the court adjudged him guilty as charged and assessed a fine of $500.00 and costs. From the judgment of conviction appellant brings this appeal. We reverse and remand for a new trial.

Section 15-18-20, 1975 Code of Alabama, provides:

“When an offense is punishable by imprisonment in the penitentiary or hard labor for the County, the court must impose the term of punishment, unless the power is expressly conferred on the jury.” (Emphasis supplied)

Section 13-1-92, 1975 Code of Alabama, provides:

“Any person who is convicted of manslaughter in the first degree shall, at the discretion of the jury, be imprisoned in the penitentiary for not less than one nor more than ten years, and any person who is convicted of manslaughter in the second degree shall, at the discretion of the jury, be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year and may also be fined not more than $500.00.” (Emphasis supplied)

In all homicide cases in which there is an indictment for homicide committed before January 1, 1980, the effective date of Title 13A, Criminal Code, 1975, Code of Alabama, the burden of fixing the punishment is cast by law upon the jury and is a mandatory duty, and the trial court cannot relieve the jury of that duty and responsibility. In these cases Section 15-18-20, 1975 Code, is an express limitation on the power and authority of the court to impose a sentence in manslaughter cases, since that power is expressly conferred on the jury. Ex parte Wesley, 31 Ala.App. 323, 16 So.2d 427; Bankhead v. State, 124 Ala. 14, 26 So. 979; Bates v. State, 170 Ala. 26, 54 So. 432; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Alford v. State, 243 Ala. 404, 10 So.2d 373. See also Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858.

We do not deem it necessary to set forth the evidence in this case. The error of law is apparent on the fact of the record. The court erred in denying appellant’s written demand for a trial by jury even though the demand was not made in strict conformity with Section 15-14-30, 1975 Code.

REVERSED AND REMANDED.

TYSON and DeCARLO, JJ., concur.

BOOKOUT, J., dissents with opinion, in which BOWEN, J., joins.

BOOKOUT, Judge,

dissenting:

Section 15-18-22, Code of Ala. 1975, provides:

“In all cases in which a statute authorizes or provides that the jury may fix or impose punishment or penalties of any kind, if the case is tried by the court without a jury, the court or judge trying the case may fix or impose any punishment or penalties which the jury might fix or impose if the case were being tried by a jury.”

It is therefore my opinion that § 15-18-22, upon which the majority opinion is founded, applies where there is a timely and proper demand for a jury trial, but does not apply in cases where a jury trial is waived, either explicitly or by an untimely demand. There is no doubt that a defendant may voluntarily waive a jury trial in a non-capital case with the consent of the State and the trial court and be tried by the trial judge on a plea of not guilty. Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971); Junior v. State, Ala.Cr.App., 375 So.2d 556 (1979).

A jury demand in a misdemeanor case must be made in conformity with Code § 15-14-30. I do not believe the legislature intended by § 15-18-20 to mandate a jury trial in every misdemeanor manslaughter case. That code section must be construed in pari materia with § 15-18-22, supra.

In Singleton, supra, the supreme court expressed no opinion as to whether a defendant could waive a jury trial in those cases where a jury is required to fix punishment, such as in Code § 13-1-92. That issue was not squarely before that court in Singleton, but is squarely before us now. I believe § 15-18-22 answers the question. Only, in capital cases would a different result be mandated, in my opinion, as per Prothro v. State, Ala.Cr.App., 370 So.2d 740 (1979). Therefore, where a defendant fails to comply with § 15-14-30 in demanding a jury trial in a misdemeanor manslaughter case, I conclude that he may be tried without a jury and the trial judge may “impose any punishment or penalties which the jury might fix or impose if the case were being tried by a jury” pursuant to Code § 15-18-22, supra. I therefore respectfully dissent.

BOWEN, J., joins in the above.


author: MADDOX, Justice.

text:
    Ex parte State of Alabama. (Re Charles Alfred CHANDLER v. STATE of Alabama).
    80-290.
    Supreme Court of Alabama.
    Sept. 18, 1981.

      Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for petitioner.
    Orson L. Johnson, Birmingham, for respondent.
   MADDOX, Justice.

The question presented by the State’s petition for certiorari is as follows:

When a defendant, indicted for a misdemeanor, fails to demand a trial by jury within the time mandated by Code 1975, § 15-14-30, can the trial judge conduct a bench trial and sentence the defendant over his objection? We answer the question in the affirmative, and hold that the dissenting opinion authored by Judge Bookout, and concurred in by Judge Bowen, states the applicable law.

The judgment of the Court of Criminal Appeals, 410 So.2d 126, is due to be reversed and the cause remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

ALMON and EMBRY, JJ., dissent.

FAULKNER, J., not sitting.

      . In all misdemeanor cases in the circuit court, the issues and questions of fact shall be tried by the judge of the court without the intervention of a jury except in cases where a trial by jury is demanded in writing by the defendant. Such written demand shall be filed in the case with the clerk of the court on or before the first sounding of the case if the case is sounded within 30 days after the defendant has been arrested or taken into custody after the finding of the indictment or, within 30 days after the defendant has appealed if the case is brought to the circuit court by appeal; and, if such case is not sounded within 30 days after the defendant has appealed, been arrested or been taken into custody after the finding of the indictment, then such written demand must be filed with the clerk within 30 days after the defendant has appealed, or been arrested or taken into custody after the finding of the indictment. A failure to demand in writing a trial by jury as provided in this section shall be held and deemed to be a waiver by the defendant of a trial by jury.


text:
    Charles Alfred CHANDLER v. STATE.
    1 Div. 136.
    Alabama Court of Criminal Appeals.
    Jan. 26, 1982.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF THE SUPREME COURT OF ALABAMA, 410 So.2d 128, NO OPINION.

All the Judges concur.


text:
    Mickey ELLISON v. STATE of Alabama.
    4 Div. 849.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.
    Frank L. McGuire, III, Opp, for petitioner.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for respondent.
   PER CURIAM.

AFFIRMED — NO OPINION.

REHEARING DENIED — NO OPINION.

All Judges concur.

Judgment affirmed, Ala., 410 So.2d 130.