author: DAN M. LEE, Justice,

text:
    Henry G. MAXWELL v. Katherine L. YUNCKER, Administratrix C. T. A. of Estate of William D. Maxwell, Deceased.
    No. 53673.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Anthony L. Phillips, C. A. Henley, Jr., Jackson, for appellant.
    W. E. Gore, Jr., Catherine W. Lee, Jackson, for appellee.
    Before WALKER, HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Hinds County wherein Henry G. Maxwell, petitioner/appellant, sought to compel a perfect inventory, void certain conveyances, partition property, and establish a claim against the estate of W. D. Maxwell, deceased. Henry Maxwell contended he was entitled to a portion of the estate of W. D. Maxwell due to the fact that his mother, Oberah Griffin Maxwell, who was also the wife of W. D. Maxwell, died intestate in 1967, that he received no distribution from his mother’s estate and therefore, that he was entitled to a one-half interest in his deceased mother’s estate, allegedly held by his stepfather, W. D. Maxwell. The chancellor dismissed the claim of Henry Maxwell, finding the same was not timely filed pursuant to Mississippi Code Annotated section 91-7-151 (Supp.1981) and the same was barred by the statute of limitations. We reverse.

On April 12, 1981, William D. Maxwell, decedent, departed this life. Decedent, by his last will and testament, dated March 3, 1977, devised and bequeathed all his worldly possessions, both real and personal, to his wife Ethel A. Maxwell. This will was admitted to probate and letters of administration C.T.A. issued to Katherine L. Yuncker, Ethel Maxwell’s daughter. An inventory of the assets received by the administratrix C.T.A. revealed only twenty-four shares of stock in Teledyne Corporation with an approximate value of $3300. Notice to creditors was published on May 6, 13 and 20, 1981.

On August 4,1981, appellant filed a petition in the Chancery Court of Hinds County to compel a perfect inventory, void certain conveyances, partition property and establish a claim against decedent’s estate. The petition alleged that appellant was the adopted son of the decedent, who was married to appellant’s mother at the time of her death in 1967. The petition further alleged that appellant never received his intestate share of his mother’s estate, the same being in the possession and custody of decedent at the time of his death.

The chancellor subsequently entered an order on motion for hearing ante litem, in a summary manner without taking any proof, holding appellant’s claim was untimely filed under Mississippi Code Annotated section 91-7-151 (Supp.1981) and barred by section 15-1-39 (1972).

I. Did the chancellor err in finding appellant’s claim was not timely filed?

Appellant’s petition and claim against decedent’s estate was marked filed on August 4, 1981, exactly ninety days following the first publication of notice to creditors on May 6, 1981. Mississippi Code Annotated section 91-7-151 (Supp.1981) provides:

All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor of administrator. Where the affidavit is made in good faith and the claim is registered, probated and allowed by the clerk but the affidavit is defective or insufficient, the court may allow the affidavit to be amended, so as to conform to the requirements of the statute, at any time before the estate is finally settled; whereupon the probate shall be as effective and the claim as valid against the estate as if the affidavit had been correct and sufficient in the first instance.

Appellee contends the chancellor properly disallowed the petition and claim because the chancery clerk ■ filed it, but failed to indorse upon the petition and claim the words “probated and allowed for $- and registered this 4th day of August, 1981” as provided for by Mississippi Code Annotated section 91-7-149 (1972). That section provides as follows:

Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or if the claim be a judgment or decree, a duly certified copy thereof, or if there be no written evidence thereof, an itemized account or a statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, to the following effect, viz.: That the claim is just, correct, and owing from the deceased; that it is not usurious; that neither the affiant nor any other person has received payment in whole or in part thereof, except such as is credited thereon, if any; and that security has not been received therefor except as stated, if any. Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: “Probated and allowed for $_and registered this_day of _, A. D.,_,” and shall sign his name officially thereto. Probate registration and allowance shall be sufficient presentation of the claim to the executor or administrator; provided, that should the clerk probate and allow and register the claim, but fail or neglect to indorse thereon the words, “Probated and allowed for $- and registered the _day of_, A. D.,_,” and officially sign his name thereto, the court may, upon proper showing, allow the clerk to indorse on the claim, nunc pro tunc, the words, “Probated and allowed for $_ and registered, this the _day of_, A. D.,_,” and sign his name officially thereto. If the claim be based upon a demand of which there is no written evidence or upon an itemized account, the statement of said claim or the itemized account shall be retained and kept by the clerk among the official papers pertaining to the estate; and if the claim be based upon a promissory note or other instrument purporting to have been executed by the decedent, the creditor shall file with his claim the original thereof to remain in the keeping of the clerk or, having so presented said original writing, he may withdraw the same when the clerk has made a certified copy thereof, the said copy to remain on file. When such a copy has been retained by the clerk in lieu of the original writing, the administrator or any party in interest shall have the right, good cause being shown upon application to the court or chancellor and upon order to that effect, to have the original produced before the court or clerk for a reasonable time to be fixed in said order, for the inspection of the administrator or other party in interest, who may make photographic copies thereof under the supervision of the clerk.

The presentation of a claim and having it probated and registered as required by law stops the running of the general statute of limitations. Miss.Code Ann. § 91-7-153 (1972).

Appellee alleges that the clerk’s failure to make an indorsement upon the claim or petition showing the same had been probated, allowed and registered within ninety days, rendered the claim invalid as a charge against decedent’s estate solely because the claim or petition had not been indorsed by the clerk as probated and allowed for $_and registered within ninety days. Stevens v. D. R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160 (1914).

Section 91-7-149 is inapplicable to the case sub judice. In Reedy, et al v. Alexander, 202 Miss. 80, 30 So.2d 599 (1947), a controversy arose over ownership of certain livestock and farm equipment alleged to be a part of the estate of the deceased. Construing what is now section 91-7-151, this Court said:

Strangely, all parties treated the claim of appellee to the proceeds of the sale, as a probated claim, which it was not. It is what its averments and prayer make it, —a petition for the proceeds of certain property sold by the administratrix, in lieu of the property itself, filed by leave of the Chancellor in the administration of the decedent’s estate. The claim was not for payment of a debt out of the general funds of the estate.
The statute, Code 1942, Sec. 569, embraces “all claims against the estate of deceased persons, whether due or not.” It would be expanding that language beyond the bounds of reason to hold a claim to the proceeds of the sale of personal property of an estate to be a debt owing by the decedent. The term “claim” in statutes relating to claims against estates includes not only debts already due, but unmatured debts. Roth v. Ravich et al., 111 Conn. 649, 151 A. 179, 74 A.L.R. 364. It applies only to specific money demands due or to become due and not to inchoate and contingent claims. Evans v. Hoyt, 153 Ark. 334, 240 S.W. 409.
The Supreme Court of Minnesota decided that a demand for a whole or a part of the estate is not a “claim” against it, since “claim” against the estate (which is the language of our statute) of a deceased person is a demand of a pecuniary nature, which could have been enforced against decedent during his lifetime. In Re Brust’s Estate, 111 Minn. 352, 127 N.W. 11, 20 Ann.Cas. 852. We approve that announcement. See also 34 C.J.S. Executors and Administrators § 367, Claims, page 95. The case before us is a controversy over definite tangible chattels. That the petition had the oath of probate attached to it, and the Clerk certified it had been probated, registered and allowed, did not convert it to a pro-batable or probated claim. Both petitions were matters in the course of the administration of Mr. Alexander’s estate, and neither required any answer.
(202 Miss. at 89, 30 So.2d at 601—emphasis ours).

See also Bible Ministry Ass’n v. Merritt, 391 So.2d 641 (Miss.1980); Barrett v. Moffitt, 381 So.2d 624 (Miss.1980); and Matthews v. Redmond, 202 Miss. 253, 32 So.2d 123 (1947). Section 91-7-151 has no application to a suit for possession of property by virtue of ownership. Moore v. Moore, 141 Miss. 795, 105 So. 850 (1925).

Holliman v. Demoville, 243 Miss. 542, 138 So.2d 734 (1962), is somewhat similar to the present case. There Holliman filed a creditor’s claim in the estate of Mrs. Mary D. Pilgrim, consisting of five items, one being the balance due on trust account. A check was attached to the claim for $18,000 payable to John D. Holliman and containing a notation “for bal. due Geo. Pilgrim trust.” A contest to the claim was filed by the executor. After the time for probating claims had expired, Holliman filed a motion for leave to file a petition to set aside from the property in the hands of the executor certain property alleged to constitute a trust wherein John Holliman was the beneficiary. The petition attached thereto prayed for the establishment of a trust, an adjudication that it was not part of the estate of the decedent, an order directing that it be paid or delivered to Holliman, and if the trust funds were commingled, that a lien be placed against the assets of the estate. Holding that the chancellor should have granted the motion to file the petition, this Court stated:

“As a general rule, it is not necessary to present a claim to specific trust funds or property which are capable of identification. It has even been held that a suit to trace a trust from land to money through an estate in process of administration is not a suit upon a claim required to be presented to the administrator for allowance. 21 Am.Jur., page 581, Sec. 353.
It was held in the case of Noble v. Noble [198 Cal. 129] 243 P. 439, 43 A.L.R. 1235, a California case, that where a trustee mingles money belonging to a trust estate with his own, on his death the beneficiary is not, if the estate is solvent, relegated to the position of a creditor, but must sue to impress a trust on the money of the estate, the heirs of the trustee being deemed to stand in his shoes.
(243 Miss. at 547, 138 So.2d at 746 — emphasis ours).

Appellant’s claim was not for a specific money demand due or to become due. It was an inchoate and contingent claim involving the ownership by co-tenancy of specific property. Sections 91-7-149 and 91-7-151 have no application to the case at bar and the chancellor erred in finding appellant’s claim was not timely filed.

II. Did the chancellor err in holding appellant’s claim barred by Mississippi Code Annotated section 15-1-39 (1972)?

Section 15-1-39 provides:
Bills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue and not after, saving, however, to all persons under disability of infancy or unsoundness of mind, the like period of time after such disability shall be removed. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one years.

The chancellor in the case sub judice found that appellant’s claim was barred by the above-cited statute of limitations. Ap-pellees filed a motion for hearing ante li-tem, much like a motion for summary judgment, which was sustained by the learned chancellor without any proof being put on whatsoever. In the absence of such proof, we are unable, as was the chancellor, to pass upon the merits of this argument and it was error for the chancellor to sustain the plea of the statute of limitations as to a trust in the absence of any proof to support the same. Since the case must be reversed, there should be a full development of the facts alleged to support the existence of a trust relationship and other aspects of appellant’s petition.

Based on the foregoing this cause is reversed and remanded for a trial on the merits.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    Rife WADE, Jr. v. Frances M. WADE.
    No. 53735.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    H. Lanier B. Foote, Mel J. Breeden, Jr., Jackson, for appellant.
    Willard L. Mcllwain, Jr., Greenville, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Chancery Court of Washington County, Honorable Nat W. Bullard, presiding, entered an order granting separate maintenance to Frances M. Wade from Rife Wade, Jr. and Mr. Wade has appealed, assigning the following errors:

I. The chancery court erred in granting a decree of separate maintenance since no hearing was conducted and no evidence adduced to support the bill of complaint.

II. The chancery court erred in granting a decree for separate maintenance since the action is barred by the doctrine of laches'.

III. The chancery court erred in failing to dismiss this cause as a stale case under Mississippi Code Annotated § 11-53-25 (1972) and Rule 16 of the Uniform Chancery. Court Rules.

The parties were married April 8, 1945. They separated in May, 1971, and on June 22, 1971, appellee filed a bill of separate maintenance on the ground of habitual cruel and inhuman treatment. After being processed, appellant filed a sworn answer to the bill of complaint on February 18, 1972, and denied the averments for separate maintenance. The case was set for trial March 6,1972, but was continued by agreement of the attorneys then representing the parties.

The record does not reflect any action relating to the case until October 13,1981, a period in excess of nine (9) years, when the cause was set for trial November 5,1981, on the oral motion of appellee’s attorney. It is unclear as to what occurred on the trial date except that neither the appellant nor his attorney appeared. Appellant resides in Hinds County.

The lower court entered a decree for separate maintenance on that date, which recited that the cause came on for hearing upon the original bill for separate maintenance and the court, being fully advised in the premises, found that the appellee was entitled to, and was granted, separate maintenance on the ground of habitual cruel and inhuman treatment. She was awarded sole use and possession of the home of the parties in Hollandale, Mississippi, and appellant was ordered to pay unto appellee the sum of two hundred dollars ($200.00) per month alimony, and an attorney’s fee of seven hundred fifty dollars ($750.00). The decree did not recite that the cause was heard on bill of complaint, and answer to said bill, or that the court considered oral and documentary evidence.

I.

The appellant contends that the lower court erred in entering the decree for separate maintenance because no hearing was conducted and no evidence was adduced in support of the bill of complaint.

After the decree was entered, the appellant began to perfect an appeal from the decree and notified the court reporter to transcribe her notes taken at the hearing. The record reflects that, in response to such notice, the court reporter wrote appellant’s attorney “No testimony having been given in this matter, be advised that no record was, made.”

The appellee argues that when a decree has been entered, a presumption arises that sufficient evidence was heard to sustain the decree and cites seven (7) cases for support of same. Such a contention is correct where (1) motions are involved and (2) evidence has been adduced in the lower court, but, for some reason, there is no transcript filed in this court. The cases cited by appellee are not in point on this question.

The principle is the same where (1) issue has been joined in the pleadings, and (2) a case has been litigated with proof adduced. The burden is upon the complainant to prove his case by competent evidence. King v. King, 246 Miss. 798, 799, 152 So.2d 889 (1963). That burden was not met in the present case, since the record affirmatively shows that no evidence was presented to the lower court.

We are of the opinion that, from the record here, particularly where there is no finding that the matter was heard on proof, the lower court erred in entering the decree, and the case is reversed and remanded for a new trial.

II.-III.

The appellant also contends that the relief granted in the decree is barred by the doctrine of laches and that the lower court erred in failing to dismiss the cause as stale under Mississippi Code Annotated § 11-53-25 (1972) and Rule 16, Uniform Chancery Court Rules.

Those questions were not raised in the lower court and we do not address them on this appeal.

REVERSED AND REMANDED.

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


author: HAWKINS, Justice,

text:
    Howard L. HOBBS v. Sarah Louise GREELY.
    No. 52937.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Bill Allain, Atty. Gen. by J. Stephen Wright, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Don W. Fredericks, Gulfport, for appel-lee.
   ON MOTION TO SET ASIDE MANDATE

HAWKINS, Justice,

for the Court:

Sarah Louise Greely has filed a motion to set aside a former (unpublished) opinion of this Court and to quash the mandate resulting therefrom. Because appellate proceedings were conducted without notice to her, we sustain the motion and reinstate the appeal to its ante-opinion status.

Paul Brumfield, Jr., and Sarah Louise Greely were formerly married and had one child, Stephon Lache Brumfield. Court proceedings were held in a state court of California, and in 1979 (at least until December 22, 1979) Mr. Brumfield had the physical custody of the child. On that date Stephon travelled by plane to the New Orleans airport and was picked up by Mrs. Greely that night.

According to Mrs. Greely, Stephon “was supposed to go back” on December 27,1979, but she telephoned Mr. Brumfield and informed him that she was not returning the child, “because my son didn’t want to go back and my husband’s wife (presumably the current Mrs. Brumfield) had asked me that I didn’t send him back.”

Pursuant to a request from California, the Governor of Mississippi, on August 8, 1980, issued an extradition warrant to the Sheriff of Harrison County, Howard L. Hobbs, for the arrest of Mrs. Greely and delivery of her into the custody of officers of California. The warrant charged her with having committed the crime of “extension of visitation rights,” and further that she “has fled from justice, and is to be found in the state of Mississippi, where she has taken refuge.”

Mrs. Greely filed a petition for a writ of habeas corpus in the Chancery Court of the First Judicial District of Harrison County, directed to Sheriff Hobbs, and the return of the sheriff stated that she had originally been arrested on February 14,1980, but had been released on an appearance bond, and was still at liberty under bond in the custody of her sureties. The sheriff’s return was dated and filed September 18, 1980.

Mrs. Greely’s attorney was Mr. John M. Sekul of the law firm of Sekul, Hornsby, Wallace and Teel of Biloxi. Hearing was held on the petition October 13, 1980. Mrs. Greely testified after she was arrested February 14, 1980; she was released on her own recognizance; Mrs. Claire Hornsby, a member of the law firm, secured her bond and talked to the sheriff.

At the hearing, Mrs. Greely testified that she had not fled from California but, in fact, had not been in California after March 1979 when she was in that state for a court hearing regarding Stephon.

No details or information concerning the crime with which Mrs. Greely was charged were given to the chancellor. The only evidence furnished the chancellor was the Governor’s extradition warrant.

At the conclusion of the hearing, the chancellor rejected the contention of Sheriff Hobbs, presented by the attorney general’s office, that Mrs. Greely was not in his custody. The chancellor held that Mrs. Greely was in the custody of the sheriff, and only her physical custody was with her attorney to whom the sheriff had released her upon her own recognizance. The chancellor further held that the sheriff had control of Mrs. Greely, and would either keep her in jail or let her remain at liberty.

The chancellor then held that Mrs. Greely was not a fugitive from California, but had been in Mississippi during the time complained of, and that court orders had been rendered in Mississippi concerning Stephen’s custody during this period of time. On November 3, 1980, he entered a final order granting her petition and directing the sheriff to release her from custody. Sheriff Hobbs, represented by the attorney general’s office, perfected an appeal to this Court. The following events then transpired:

1. On December 30, 1980, Mr. Sekul filed a motion in the chancery court to withdraw as counsel, which was opposed by the attorney general’s office.

2. On March 3, 1981, the clerk of this Court notified counsel that the record had been filed here.

3. On March 18, 1981, Mr. Sekul filed a motion to withdraw as counsel, again opposed by the state, but which motion was granted by this Court.

4. No assignment of error or brief was filed by the attorney general’s office as required by our Rules, and the appeal was dismissed May 13, 1981.

5. The attorney general’s office filed a motion to reinstate the appeal on May 20, 1981. A copy of this motion and notice was mailed to Mrs. Greely, c/o Harrison County Courthouse, Gulfport, Mississippi 39501.

6. On June 10, 1981, we reinstated the appeal. An assignment of error, statement of the case, and appellant’s brief were filed by the attorney general’s office on June 22, 1981. Copies were mailed to Mrs. Greely, c/o Harrison County Courthouse.

7. No response was filed by Mrs. Greely, and in September 1981, we issued an unpublished opinion reversing and rendering the order of the Chancery Court of Harrison County.

8. On July 9, 1982, a motion was filed with this Court by Mrs. Greely and her present attorney, Don W. Fredericks of Gulfport, to quash our mandate. On oath she alleged she was not served with any appellate notices.

Therefore, since Mrs. Greely was not served with a copy of the motion to reinstate the appeal, the assignment of error, or brief of the attorney general’s office, we set aside our former opinion, order, and mandate, and restore this case to a pending status.

The attorney general’s office is directed to mail copies of the abstract, assignment of error, and brief to counsel for Mrs. Greely forthwith, and Mrs. Greely shall file her brief with this Court on or before the 4th day of October, 1982, following which the attorney general’s office shall have ten (10) days in which to file a rebuttal brief.

MOTION SUSTAINED.

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

      . The record fails to give relevant details of the background of this matter occurring in California, as well as the age of Stephon.

      . Again, the record is skimpy on any detail of her release or bond.

      . The explanation of this failure to ascertain Mrs. Greely’s correct mailing address was the offhand memory of the attorney that she was employed in the courthouse.


author: BOWLING, Justice,

text:
    Walter GLOVER v. STATE of Mississippi.
    No. 53647.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Hermel Johnson, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   BOWLING, Justice,

for the Court:

Appellant Walter Glover was indicted and convicted in the Circuit Court of the First Judicial District of Hinds County for the possession of marijuana with the intent to deliver. He appeals his conviction and advances two assignments of error.

We shall not discuss the facts of the case or the assignments of error for the reason that a study of the record and briefs clearly reveals no reversible error.

We find a plain error that requires discussion for the Bench and Bar and a remand of the case. [Mississippi Supreme Court Rule 6]. There is no authority for the method used by the lower court in sentencing appellant. Contrarily, the authority is clear that he was erroneously sentenced.

The trial of appellant in the present case was had on September 13, 1981, at the September 1981 term of the Circuit Court of the First Judicial District of Hinds County. The sentencing hearing was conducted by the trial court on September 18, 1981, along with a revocation hearing involving a prior sentence received by appellant in the same court. This prior sentence came about as a result of a plea of guilty by appellant on January 22,1979, for the crime of aggravated assault. The court on the date of that plea imposed a sentence of five years in the custody of the Mississippi Department of Corrections. The entire five-year sentence was suspended and appellant placed on probation for that period of time.

After the sentencing hearing in the present case, the lower court imposed the sentence on appellant of. ten years in the custody of the Mississippi Department of Corrections. Five years of the sentence were suspended with the further stipulation by the court; “I’m going to let the five (5) years run concurrent with your suspended sentence in cause number 0347.” The suspension of this sentence was revoked.

The Bench and Bar should be reminded that the Legislature in 1942 laid out specific instructions on the imposition of concurrent or consecutive sentences. Prior to 1942 all multiple sentences were required to run consecutively. The Legislature in its 1942 session enacted Chapter 301, Laws of 1942, amending the prior sentencing statute. This amended act read as follows:

AN ACT to amend section 1319, Mississippi Code of 1930, so as to provide that circuit and county judges may impose sentences to run concurrently.
Section 1. Be it enacted by the Legislature of the State of Mississippi, that section 1319, Mississippi Code of 1930, be and the same is hereby amended to read as follows:
In case of more than one conviction imprisonment on second to begin at end of first.
1319. When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentences on such convictions to run concurrently.

The above quoted statute has been carried forward in Mississippi codes since its enactment and appears as MCA § 99-19-21 (1972).

This Court had the question before it in the case of Maycock v. Reed, 328 So.2d 349 (Miss.1976), and there we said:

It is clear that the purpose of this amendment was to authorize circuit and county judges in their discretion to order sentences to run concurrently when more than one sentence was imposed on a defendant at the same term of court and to validate those sentences that the circuit and county judges had theretofore ordered to run concurrently without statutory authority to do so.
Under the terms of the statute all sentences are to run consecutively, unless more than one sentence is imposed at the same term of court, and the judge in his discretion orders the sentences to run concurrently.

Undisputedly, the five-year suspended sentence that was revoked by the lower court was rendered on June 22, 1979. The sentence in the cause sub judice was rendered at the September 1981 term of court. It is clear then that there was no legal authority for the lower court to impose the sentence in this case to run concurrently with the revoked sentence in the prior case. The sentences were not “at the same term of court.”

In Pickett v. Thomas 209 So.2d 912 (Miss.1968), we were compelled to hold that a justice of the peace court could not impose sentences to run concurrently. The Legislature by its 1942 amendment only authorized concurrent sentences at the same term of court of the circuit or county court. Until there is any further change by the legislature, the Bench and Bar of this state are mandated to impose concurrent or consecutive sentences pursuant to § 99-19-21.

We, therefore, remand the cause for another sentencing hearing consistent with the above directions.

REMANDED FOR PROPER SENTENCING HEARING.

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


text:
    CITY OF BELZONI, Miss., A Municipal Corp. v. Eva CLAY.
    No. 53430.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Upshaw & Ladner, and Marc A. Biggers, Greenwood, for appellant.
    Mansour & Thomas, Philip Mansour, Greenville, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Humphreys County; Webb Franklin, Judge.

AFFIRMED.


text:
    Benjamin Charles HOOVER v. STATE of Mississippi.
    No. 53638.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Whitman D. Mounger, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Jr., Judge.

AFFIRMED.


text:
    MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE v. Robert JOHNSON, Jr.
    No. 54443.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Stephen Nick, Greenville, for appellant.
    Alexander, Johnston & Alexander, Robert G. Johnston, Cleveland, for appellee.
    Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.
   Appeal from Chancery Court, Bolivar County; Wm. H. Bizzell, Chancellor.

AFFIRMED.


text:
    O. W. ANDERSON and Dorothy Kelly v. MOTEL “6”, INC.
    No. 53729.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Richard V. Dymond, Gulfport, for appellant.
    Bryant & Stennis, David B. Strain, Gulf-port, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ,
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    Oscar Weir CONNER, III, et al., v. Montie C. LAMBERT, Jr.
    No. 53441.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Daniel, Coker, Horton & Bell, John B. Clark, Jackson, for appellant.
    Johnston, Adams & Younger, Lem Adams, III, Brandon, for appellee.
    Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


text:
    Jimmie L. PATTERSON v. STATE of Mississippi.
    No. 53687.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    John T. Cotter, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

AFFIRMED.


text:
    STATE of Alabama v. William Glenn SCROGGINS.
    Civ. 3087.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp, Clyde P. McLendon, and William Prendergast, Asst. Attys. Gen., for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a paternity case.

The prosecutrix-mother was the only witness to testify. During all pertinent periods of time the mother and her lawful husband were both residents of Covington County but they had been separated since November 1977. She was still married to that same husband at the trial in November 1981. She testified that she had had no sexual relations with her husband after their 1977 separation, that they never got back together again, and that the only time she sees her husband is when they “occasionally see each other, bump into each other on the street or something like that.”

The prosecutrix first met the defendant, the purported father, in either April or May of 1980 at a trailer park where she resided with her mother and where the defendant was living with his brother. They began to see each other, thought they were in love, and discussed marriage. Their first sexual intercourse occurred about three weeks after they met. In late June 1980 she began to reside in her own trailer and the defendant moved in with her. Their relationship ceased on August 13, 1980. Between May and August 13, 1980, she had sex with the defendant once or twice a week on a regular basis. She did not date anyone else during that period of time.

The prosecutrix suspected that she was pregnant in early July 1980 because of a late and abnormal menstrual period. She told the defendant of her suspicions and he seemed happy about it. Later, she also informed him when a physician verified that she was six to eight weeks into her pregnancy. The child was born on April 20, 1981 and was a full-term baby.

After a nonjury trial, the circuit court found for the defendant. When the evidence was concluded, the court stated from the bench that the state had failed in its proof because the evidence did not show a complete nonaccess of the child’s mother to her lawful husband. In its written judgment which discharged the defendant, the circuit court recited that it was not reasonably satisfied that the child was an illegitimate child, in that the testimony was undisputed that the child was not born out of wedlock.

In neither the court’s oral remarks from the bench nor in the findings in the judgment did the trial court question the credibility of any portion of the mother’s uncon-tradieted testimony, but the circuit court held, in substance, that her testimony as such was insufficient to prove that the child was illegitimate since the mother was still legally married to a man other than the defendant. It appears that the trial court did not reject any of her evidence but simply ascertained that it was legally inadequate. Accordingly, we must determine whether her testimony was sufficient or insufficient as a matter of law. We deem it to have been adequate to support the paternity charge.

An illegitimate child or bastard is defined as being not only “a child born out of wedlock, but also ... a child born in wedlock but sired by a man who was not the mother’s husband.” Leonard v. Leonard, 360 So.2d 710 (Ala. 1978) (citation omitted). That definition would apply to the paternity statute, §§ 26-12-1 to -9, Code 1975.

In a case where the facts were similar to those in the present case, this court held:

“This evidence is in large measure uncon-tradicted. The wife’s last social contact with her husband, besides a chance meeting on the street, was in April, 1975. She started living with the defendant in June, 1975, and continued to do so until October, 1975. During this period, the mother dated no one else besides defendant. The record further reveals that the mother and defendant had an active sexual relationship during their cohabitation. She discovered her pregnancy in October and the child was born in May, 1976.
“In view of the above, we cannot say the state failed to meet its burden of showing that the husband was not the father of the child. It is clear to this court that there was no evidence of cohabitation or access between the wife and husband during the time pregnancy might have occurred. Suffice it to say, the record contains overwhelming evidence tending to show the defendant as the father and thus rebutting the presumption of legitimacy.”

Ingram v. State, 364 So.2d 329 (Ala.Civ.App.1978), cert. denied, 364 So.2d 331 (Ala. 1978). Accordingly, we must here hold that the present evidence adequately supported the paternity charge against the defendant and we must reverse and remand this case.

Since it will be necessary that this case be retried, we wish to make it clear that nothing herein stated should be construed as any encroachment upon the absolute right of the trier of facts to decide every fairly debatable question of fact, nor is this opinion any authority that requires the fact finder either to accept or to reject without reserve the uncontroverted testimony of any witness who is interested in the outcome of the case. Merely because evidence of an interested witness is uncontroverted does not mean that the court must believe, accept, or be bound thereby. “[T]he court or jury may disregard the testimony of an interested witness, as against a presumption, if the latter satisfies them.” 81 Am. Jur.2d Witnesses § 661 (1976) (footnote omitted). In short, this decision is no commentary upon the credibility nor noncredi-bility of the witness.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ludie PERKINS v. Jewell PERKINS.
    Civ. 3095.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.

      H. Neil Taylor, Russellville, for appellant.
    William W. Bedford and Robert I. Rogers, Jr., of Bedford, Bedford & Rogers, Russellville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The sole issue in this court is whether the trial court abused its discretion in the award to the wife of alimony in gross and in its division of property. The cases are legion which hold that such matters in divorce cases are subjects which clearly fall within the sound judicial discretion of the trial court and that the circuit court’s decision thereon will not be disturbed on appeal except where such discretion was plainly and palpably abused. Kennedy v. Kennedy, 410 So.2d 100 (Ala.Civ.App.1982); Pugh v. Pugh, 406 So.2d 966 (Ala.Civ.App.1982). Equally well established is the “ore tenus rule” that, where the trial court personally heard the trial evidence, the judgment appealed from is presumed to be correct on appeal and may not be altered, if it was supported by legal evidence, unless the trial court’s decision was palpably wrong. Austin v. Austin, 408 So.2d 138 (Ala.Civ.App.1981); Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980).

We pretermit a summary of the evidence since, by stating the pertinent facts, little or nothing would be thereby contributed to the law because of the vast number of cases on this same legal subject. After a most careful review of all of the testimony and of the helpful briefs of learned counsel, we are not convinced that the adjudication as to alimony and property, while being on the liberal side, is of such an amount as to constitute a plain abuse of judicial discretion. The trial court was not 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 Ala-, bama 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    JASPER COMMUNITY HOSPITAL, INC., a corporation, and Walker County Medical Center, Inc., a corporation v. Donna HYDE.
    Civ. 3183.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.

      John W. Clark, Jr. of Clark & Maddox, Birmingham, for appellant.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellee.
   BRADLEY, Judge.

On May 26, 1978 Donna Hyde, a nurse’s aid, injured her back while lifting a patient in the course of her employment at the Jasper Community Hospital, Inc. (now the Walker County Medical Center, Inc.). She brought suit in the Circuit Court of Walker County to recover benefits under the Alabama Workmen’s Compensation Act and on June 27,1980 was found to be permanently and totally disabled. She was awarded all reasonably necessary medical expenses incurred in connection with her injury.

The present action arises out of a complaint filed by Ms. Hyde on August 11,1981 seeking to recover expenses connected with hospitalization in the Jasper Community Hospital, doctor bills owed to two physicians, the cost of treatment by a chiropractor, expenses for medicine and drugs, and related travel expenses. The hospital filed a motion to dismiss or in the alternative a motion for summary judgment, claiming that Ms. Hyde had failed to comply with § 25-5-77(a), Code 1975. After its motion was denied, the hospital filed an answer alleging that Ms. Hyde’s medical expenses were neither reasonably necessary nor directly related to her accident and that the treatment was not authorized by her employer as required by § 25-5-77(a).

On December 22,1981 the Walker County Circuit Court found that the expenses sought by Ms. Hyde were reasonably necessary and ordered the hospital to pay the cost of her treatment. The hospital appeals from this judgment.

Testimony adduced at trial indicates that after her injury, Ms. Hyde was hospitalized in the Jasper Community Hospital. The admitting physician requested that Dr. Bruce Russell enter the case as a consultant. Ms. Hyde indicated that she was unaware of who authorized treatment by the admitting physician and Dr. Bruce Russell. She further testified that neither the hospital nor its insurance carrier gave specific approval to treatment by either physician. There is no indication in the record as to whether the bills for this period of hospitalization have ever been paid.

Thereafter, Ms. Hyde was referred, with approval from her employer, to two specialists in Birmingham. She was hospitalized twice in Birmingham, and the bills were paid by the insurance carrier. She was referred to a third physician in Birmingham who hospitalized her for a third time. Again, the bills for this period were paid.

In April 1980 Ms. Hyde was returned to the Walker County Medical Center by Dr. Russell. She testified that her treatment there was basically the same as she had received in Birmingham. She indicated that the insurance carrier did not authorize this hospitalization but that her condition improved during this period of treatment. The insurance company has refused to pay Dr. Russell’s bills and the cost of her hospitalization.

During his treatment of her, Dr. Russell referred Ms. Hyde to the Campbell Clinic in Memphis, Tennessee. She also saw a chiropractor on her own. The hospital claims that these treatments were unauthorized and has refused to pay any of her medical bills or travel expenses.

Ms. Hyde indicated in her testimony that she was not dissatisfied with any of the physicians she had seen. She stated that she had refused to see one physician in Birmingham because she had seen him previously and apparently felt that he had been unable to help her.

In reviewing a workmen’s compensation judgment, this court must determine whether there is any legal evidence, or reasonable inferences therefrom, to support the trial court’s findings. Big “B" Discount Drugs, Inc. v. Parker, 401 So.2d 115 (Ala.Civ.App.1981). It is not the duty of this court to weigh the evidence on appeal. Nason v. Jones, 278 Ala. 532, 179 So.2d 281 (1965).

The hospital bases the primary thrust of its argument on the premise that Ms. Hyde failed to comply with § 25-5-77, Code 1975, because she did not give notice to her employer or its insurer of her medical treatment after her return from Birmingham in 1979. Section 25-5-77(a) provides in pertinent part that “the employer shall pay the cost of reasonably necessary” medical expenses arising out of a work-related accident. As provided in that section, the employer is to select the physician, but “[i]f the employee is dissatisfied with the initial treating physician, selected by the employer and if further treatment is required, the employee shall be referred to a second physician selected by the employer.” If the employee is dissatisfied with the second physician, he may notify his employer who will select another physician. Section 25-5-77(b) defines “physician” to include “medical doctor, surgeon and chiropractor.” Thus, it is clear from the statute that the selection of the initial physician and of other physicians in the event of employee dissatisfaction is a decision for the employer. It is also clear from the statute that the employee must notify the employer before consulting a physician or before changing physicians except in the case of an emergency. United States v. Bear Brothers, Inc., 355 So.2d 1133 (Ala.Civ.App.1978).

During her original period of hospitalization, Ms. Hyde was treated by Dr. Russell in defendant’s hospital. There is no evidence in the record to indicate that Dr. Russell had been selected by the hospital. Nor is there evidence to indicate that Dr. Russell was not approved by the hospital. Hence, it would have been logical for Ms. Hyde to believe that any treatment provided for her by the hospital was given with its knowledge and approval. Larson, in his treatise The Law of Workmen’s Compensation, states that an employee may avail himself of medical services “if the employer has expressly or impliedly conveyed to [him] the impression that the employee has authorization to proceed in this fashion, or with full knowledge has over a sustained period of time failed to object to claimant’s change of physician.” 2 A. Larson, The Law of Workmen’s Compensation § 61.12(g) (1981) (footnotes omitted). When Ms. Hyde returned from Birmingham and discovered that she needed further medical attention, she could have reasonably believed that she should again consult Dr. Russell and that no further approval was required from her employer.

The trial court impliedly found that the treatment by Dr. Russell and the hospitalization in the Walker County Medical Center were authorized by Ms. Hyde’s employer. We agree. Considering the evidence in the record that Dr. Russell had begun her treatment in defendant’s hospital without its objection, we find that all subsequent treatment by him was authorized by the hospital and that it is liable for the cost of such care. See United States v. Bear Brothers, Inc., supra.

We also find that Ms. Hydes treatment at the Campbell Clinic in Memphis, Tennessee was authorized by the defendant hospital. The record clearly indicates that Dr. Russell referred her there for diagnosis and treatment. Since we have found that Dr. Russell’s treatment of Ms. Hyde was authorized, we have no difficulty in determining that other reasonably necessary medical treatment prescribed by him was also authorized.

Ms. Hyde’s treatment by the chiropractor presents a different issue. Dr. Russell testified that he did not recommend that she seek chiropractic treatments, and Ms. Hyde, herself, indicated that she consulted the chiropractor on her own. For these reasons we cannot find that such treatments were authorized by the hospital.

The hospital next argues that Ms. Hyde’s treatments were not reasonably necessary. Ms. Hyde indicated that when she left the hospital in Birmingham, she was still having back pain and that she consulted Dr. Russell for this reason. We agree with the trial court’s conclusion that such treatments were reasonably necessary.

Finally, the hospital argues that its motion for summary judgment should have been granted. Because of our conclusions, this issue is without merit.

For the foregoing reasons, the judgment below is affirmed in part, reversed in part and remanded for entry of judgment consistent with this opinion.

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

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


author: WRIGHT, Presiding Judge.

text:
    Brinton Alton OWEN v. Catherine Gail OWEN.
    Civ. 3208.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.

      Ronald L. Stichweh of Carlton, Boles, Vann & Stichweh and Jack G. Davis, Birmingham, for appellant.
    John E. Medaris of Mitchell, Green, Pino & Medaris, Alabaster, for appellee.
   WRIGHT, Presiding Judge.

There was submitted to the trial court a complaint for divorce together with answer and cross complaint. The court heard oral testimony, and there were submitted depositions ajnd agreement of the parties as to child custody and support. It was agreed that the court would determine a reasonable attorney fee for counsel of the wife. Judgment was rendered divorcing the parties. The wife was awarded the real property to which she already held title. The husband was ordered to pay twenty-five (25%) percent of his “take-home” pay as support for the three children. He was directed to pay $2,000 for the wife’s attorney. The husband appeals.

The first issue presented is that the award of twenty-five percent of the husband’s “take-home” pay as child support is so uncertain as to be error.

The record discloses that there was no evidence offered as to the husband’s salary or “take-home” pay. Neither was there evidence presented as to the needs of the two minor children. There was evidence that the husband was a certified public accountant with high earnings in previous years. However, he was presently a bankrupt with no present assets. There was a joint deposition of the parties submitted to the court containing an agreement that child support should be twenty-five percent of the husband’s “take-home” pay after deduction of taxes and health insurance premiums. The judgment of the court merely accepted that agreement.

We are not cited to any Alabama case previously decided on the question of whether or not a judgment awarding support as a percentage of the father’s income is acceptable. In this case, because the judgment merely accepted the agreement of the parties, we do not find such judgment erroneous. Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980). It is easily seen that a percentage of income subject to probable fluctuation is uncertain for the recipient from payday to payday. However, it is not impossible of determination for enforcement or collection purposes if not timely paid. We do not recommend such a judgment and recognize it may bring problems to the court. If it does, it may be modified. Prouty v. Prouty, 388 So.2d 1012 (Ala.Civ.App.1980). We will not often consider a matter erroneous in a judgment to which the party complaining has agreed— particularly where such party has failed to provide a basis in the evidence for any other judgment.

The husband also complains of the award to the wife of the home and its acreage.

Title to the home was totally in the wife by virtue of a deed from the husband made prior to his filing for bankruptcy and for the divorce. There is a mortgage on it obligating the payment of $23,000 by the wife. There was testimony of the husband taken under oath before the bankruptcy court that he claimed no title to nor interest in the home. There was conflicting testimony before the court as to the parties’ investment in the home prior to separation.

In any divorce case, it is recognized that the trial court has the discretion to make a fair and equitable division or award of the real property resulting from the marriage. McLain v. McLain, 384 So.2d 114 (Ala.Civ.App.1980). In this case the court awarded the wife a title to property which she already held in fee simple. It was the home of her children whose care and custody were given to her. It was property in which any interest had been disclaimed under oath by the husband. It was property which she had pledged as security for payment of $23,000. It was property which is presumed by law to have been conveyed to her by her husband as a gift. Cone v. Cone, 331 So.2d 656 (Ala.1976). With all these considerations before him, the learned trial judge did not abuse his discretion in the award of it to the wife.

The third error contended is the failure of the court to include in its judgment all of the matters upon which the parties had agreed. Husband and wife had agreed that all office furniture found in the home, if any, was to be given the husband. The judgment did not contain an award of office furniture. Our review of the record does not find any evidence that the house contained any office furniture. There was no testimony relative thereto. The husband did not seek any amendment to the judgment in his post-trial motion. Rule 59(e), A.R.Civ.P. The trial court may adopt or reject such parts of an agreement as it may deem proper. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981). Such omission was not error.

Lastly, abuse of discretion is charged in the award of $2,000 to the wife as an attorney fee. There is no error to be charged in an award of an attorney fee when the parties submit the matter to the court without testimony as to a reasonable amount, unless the award, in view of the record, is so great as to shock the conscience of the reviewing court. Williams v. Williams, 411 So.2d 154 (Ala.Civ.App.1982); Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App.1980).

We have considered the issues presented by appellant in spite of the contention of appellee that they were not properly raised by a post-trial motion. We suggest counsel for appellee review the recent case of Securitronics of America v. Bruno’s, Inc., 414 So.2d 950 (Ala.1982).

Finding no ground for reversal, the judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Michael Stanley BLASE v. Peggy E. BLASE.
    Civ. 3282.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.

      J. Donald Banks of Loveless & Banks, Mobile, for appellant.
    Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns post-judgment proceedings to enforce an original divorce judgment.

Outside of the pleadings relative to taking this appeal, the entire record filed in this court consists of the following:

1. The former wife’s motion to modify. It contained averments that the divorce judgment directed the husband to pay and be responsible for all of the bills which were outstanding at the time of the separation of the parties. She also averred that the husband had gone into bankruptcy, that the creditors were threatening to sue her and that the support payments need to be increased to enable her to pay such bills which the husband was directed to pay. She also sought to place him in contempt of court and she prayed for general relief.

2. The husband’s answer which stated that his employment had been terminated and that he had no current income but was seeking a job in order to meet the court ordered obligations.

3. A judgment. After a hearing at which the husband and his attorney were in attendance, a judgment was entered by the trial court which therein rendered four separate judgments in favor of the wife and against the husband for money paid by her to four separate creditors which should have been paid by the husband. It reaffirmed all other aspects of the original divorce judgment. The trial court also adjudged the husband to be in contempt of court. Attorneys’ fees were awarded to the wife.

4. The husband’s motion to reconsider the rendition of the four judgments on the sole ground that those debts had been discharged by reason of his bankruptcy.

5. An order of submission of the husband’s motion.

6. A court order overruling the husband’s motion to reconsider.

The husband has appealed and here argues error in overruling his motion to reconsider.

If the debts were of such a character, kind or nature that the ordered payment thereof by the husband constituted either alimony or child support, his liability to the wife therefor was non-dischargeable; but, on the other hand, if such was in actuality a property settlement, then that liability of the husband to the wife was dischargeable in bankruptcy. Collier on Bankruptcy, § 523.15 [1, 2 and 3], pp. 107 through 111 (15th ed. 1982). The record does not disclose the nature of any of the debts except that the judgment (number 3 above) described one of them as being “medical bills.”

We are informed by brief, but not otherwise, that the original divorce judgment approved an agreement of the parties. Neither the agreement nor the judgment is included in the record. None of the evidence is before us. In short, the record discloses nothing which we may construe in order to determine whether the assumption of the marriage debts was alimony and/or child support or whether that portion of the divorce judgment was a property settlement. In the absence of the agreement, of the judgment creating the liability and of the evidence explaining it, we must presume that the agreement, the divorce judgment and the evidence, one or all, were sufficient to support the action of the trial court in overruling the husband’s motion to reconsider. Dial v. Graves, 351 So.2d 598 (Ala.Civ.App.1977); 2A Ala. Digest, Appeal & Error, Key 907(2) and (5). The status of the record in this case is such that we have nothing from which we can ascertain whether the trial court was correct or incorrect in its ruling, and, that being so, we must affirm, for we are not authorized to guess a trial court into error. Holley v. Seaboard Air Line Railroad Co., 291 Ala. 510, 517, 283 So.2d 168, 173 (1973).

Additionally, as a matter of procedure, the trial court did not err in overruling the husband’s motion to reconsider on the ground of his discharge in bankruptcy. A bankruptcy discharge is an affirmative defense which, as a general rule, is waived if it is not timely pleaded. Robinson v. Morse, 352 So.2d 1355 (Ala.1977); Rule 8, A.R.Civ.P. While there are exceptions to that general rule of waiver which are mentioned in the Robinson case, the record does not reveal that any of the exceptions are here applicable. The record only indicates an attempt by the husband to obtain a reconsideration of a judgment which motion was based upon a ground, a discharge in bankruptcy, which was not previously pleaded or otherwise properly raised in any manner as an issue. No reason was averred as to why that affirmative defense was not filed, or otherwise aptly raised, at the proper time. The trial court properly overruled that motion and we must affirm. The trial court did not abuse any discretion in not granting the husband’s motion.

We overrule the wife’s motion to dismiss this, appeal in view of the above.

The appellee is hereby awarded the sum of $300 from the appellant as an attorney’s fee upon this appeal.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Jeanette Parker SATTERFIELD v. Thomas Adger SATTERFIELD.
    Civ. 3315.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.

      Jack Drake of Drake, Knowles & Pierce, and Martin Ray of Ray, Oliver & Ward, Tuscaloosa, for appellant.
    Robert V. Wooldridge, III of Wooldridge, Wooldridge & Malone, Tuscaloosa, for ap-pellee.
   HOLMES, Judge.

The wife sought to enforce certain provisions of an agreement pertaining to a divorce. The trial court determined the relevant provisions of the agreement had not been incorporated in the divorce decree and denied the relief sought.

The wife appeals and we affirm.

The sole issue on appeal is whether the pertinent provisions of the agreement were adopted and incorporated into the divorce decree. As indicated, we find they were not,, and affirm.

The record in pertinent part .reveals the following facts. On August 30, 1965, appellant and appellee, then husband and wife, entered an agreement in contemplation of an immediate divorce. The agreement detailed certain property settlement issues concerning debts and stocks. The agreement also said that based upon the representations in the agreement the wife “has not petitioned for any alimony and/or child support in this divorce proceeding . . . . ” According to this section of the agreement, once the husband had paid off the indebtedness, he “agrees to pay as child support and/or alimony one-third of his gross annual income as established by a certified copy of his Federal income tax return . . . . ” On that same day, the wife filed a Bill of Complaint seeking a divorce. Among the relief sought in the complaint, appellant asked:

“That your Honor will ratify and approve the property settlement agreement heretofore made between complainant [wife] and respondent [husband] and will adopt the same as a part of the decree entered herein. Further, that the matter of support and/or alimony from respondent to complainant for complainant and the minor children of complainant and respondent be and the same hereby is left open for the further order of this Court.”

In a deposition of appellant taken on that same day, she stated:

“Under the terms of the foregoing property settlement agreement, the respondent [husband] will apply over one-half of respondent’s present total annual income [to repayment of debt], and it would, therefore, be impossible for respondent to pay additional sums by way of child support or alimony at this time. I presently have sufficient annual income to care for myself and our children at this time. I would ask that the Court leave the matter of child support and alimony open so that in the event the annual income of respondent sufficiently increases or the needs of our four children increase that this Court could take these matters into consideration in requiring the respondent to pay additional sums by way of support and/or alimony.”

In the final decree, filed August 31, 1965, the court wrote:

“It is further ordered, adjudged and decreed that the property settlement agreement between complainant and respondent filed in this cause be and the same is hereby approved, ....
“This Court makes no present order requiring respondent to pay alimony and/or support for his wife or support of any of his four said minor children in view of the support agreement between complainant and respondent ... . ”

On May 14, 1980, the wife filed a “Petition for Rule to Show Cause and for Enforcement of Decree” and claimed appellee failed to pay child support and alimony according to the terms of the 1965 agreement. On April 19, 1982, the trial judge found the divorce decree did not incorporate provisions of the agreement which related to alimony and support. The trial judge noted that the most basic question was whether the final decree contained an order for the husband to pay the wife any alimony or support because without such an order the trial court could not exercise its power to hold the husband in contempt.

The wife, arguing in brief through able counsel, contends there was such an order for alimony and support. She argues it was the intent of the parties to incorporate the entire agreement including the support and alimony provisions; that the approved property settlement agreement included the child support and alimony provisions, and therefore the trial court’s “approval” of the property settlement was effective to incorporate the entire agreement. Yet appellant herself at earlier stages in litigation made a distinction between portions of the agreement which dealt with property settlement matters and those dealing with support and alimony. Both her complaint and her deposition ask for separate - treatment of the property settlement provisions and child support and alimony provisions. The agreement itself states the appellant “has not petitioned for any alimony and/or child support in the divorce proceeding . . . . ”

We note that a separation agreement in contemplation of divorce is not binding upon the court entering its judgment on the divorce. Baumler v. Baumler, 368 So.2d 864 (Ala.Civ.App.1979). The court is not bound by such an agreement of the parties, and may reject or adopt such parts of it as it may deem proper from the situation of the parties. Baumler v. Baumler, supra.

Furthermore, divorce decrees are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties. Such intent can be derived from the provisions of the agreement. Horsley v. Horsley, 390 So.2d 1058 (Ala.Civ.App.1980), cert. denied, 390 So.2d 1060 (Ala.1980).

The trial judge construing the decree in this case could have found the decree expressed the parties’ intent in making “no present order requiring respondent to pay alimony and/or support” since the wife’s complaint asked that the matter of support and alimony be left open. However, the trial judge found an apparent ambiguity in the decree, and looked to the record to determine intent. Where the decree does not clearly express the exact determination of the court, reference may be had to pleadings and other proceedings to which it refers, and it should be interpreted in light of the pleadings and the entire record. Horsley v. Horsley, supra; Reeder v. Reeder, 356 So.2d 202 (Ala.Civ.App.1978). As previously indicated, the record indicates the wife’s intent initially was not to incorporate the provisions concerning support and alimony.

Furthermore, as the trial court noted, even if the agreement had been incorporated in the decree, the decree itself supersedes it. Knight v. Knight, 409 So.2d 432 (Ala.Civ.App.1982). The language of the decree which controls expressly states the court “makes no present order requiring alimony and/or support .. . . ”

In finding appellant’s “Petition for Rule to Show Cause and for ■ Enforcement of Decree” was not well taken, the learned trial judge did note appellant’s possible remedies include a suit on the underlying contract and/or an action seeking to modify the court decree.

Whether the property settlement agreement concerning repayment of debts and stocks was incorporated into the decree by the trial judge’s “approval” is irrelevant to the issue at hand. Provisions in the agreement which dealt with support and alimony were not approved by the trial court, appellant herself initially distinguished the support and alimony provisions from the property settlements, and the decree clearly stated that the matters of alimony and support were left open. Therefore, the judgment of the trial judge is due to be affirmed.

AFFIRMED.

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

      . Appellant has brought an action in the United States District Court, CV-82-G-1543-W, against her ex-husband alleging breach of the agreement.


author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Larry Wayne BOX v. STATE.
    6 Div. 507.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Dec. 29, 1981.
    On Return to Remand June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Sept. 17, 1982 Alabama Supreme Court 81-685.

      J. Wilson Dinsmore, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence for the possession of a controlled substance in violation of the Alabama Uniform Controlled Substances Act, Code of Ala. 1975, § 20-2-1 et seq. The indictment contained two counts; the first count charged possession of cocaine, and the second count charged possession of marijuana.

By consent of the defendant, the case was tried by the court without the intervention of a jury. After finding the defendant guilty and conducting a sentencing hearing, the court fixed defendant’s punishment at imprisonment for four years and sentenced him accordingly.

The record of the judgment of conviction is in pertinent part as follows:

“. .. The Court finds the defendant guilty as charged in the indictment.
“It is therefore considered by the Court, and it is the judgment of the Court that said defendant is adjudged guilty as charged in the indictment.”

Appellant presents only two contentions for a reversal. One of them pertains exclusively to the first count of the indictment, and the other pertains exclusively to the second count.

Under the circumstances stated, we should remand the case to the trial court for clarification of the question whether defendant was adjudged guilty under both counts of the indictment and, if not, whether he was adjudged guilty of possession of cocaine, as charged in the first count, or, on the other hand, whether he was adjudged guilty of possession of marijuana, as charged in the second count.

The case is remanded to the trial court with directions that it amend nunc pro tunc its record of its judgment of conviction as hereinabove quoted by inserting therein appropriate language to constitute the clarification desired. Upon the trial court’s return to this remandment, each party will be allowed fifteen days within which to file any additional brief and the opposing party ten days within which to file a reply brief.

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.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

The concluding paragraph of appellee’s brief on application for rehearing states:

“Based on the foregoing propositions of law, the State respectfully submits that this cause is due to be affirmed. The State would submit that the jury verdict was sustained by the evidence produced by the State at the trial of the defendant. Further, the trial court’s adjudication of guilt can be referred to the general verdict of the jury, and will suffice as a basis for the defendant’s conviction.”

Appellee apparently overlooks the fact, as stated in the opinion on original submission, that the judgment of the trial court was not based on any verdict of a jury, that the case was tried without a jury.

It is our view that legal principles governing the question of the validity of a judgment based on a general verdict as to a two-or-more-count indictment do not always control on appeal from an adjudication of guilt in a case in which a jury is not the trier of the facts.

Upon the return of a verdict and the discharge of a jury, it is exceedingly difficult, if not impossible, to so re-assemble all of the jurors as to determine satisfactorily whether the verdict finding defendant guilty was applicable to each count of the indictment, and, if not, to which count or counts it was applicable. In the instant case, it presently seems that there will be no difficulty in complying with the directions contained in the opinion wherein it was decided to remand the cause to the trial court for action by the same trial judge that tried the facts and entered the judgment. Upon a return to such remandment, we can then proceed to a determination of the issues without any concern as to whether there was a finding of guilt on both counts and, if not, whether defendant was found guilty on count one or, on the other hand, he was found guilty under count two. Such procedure, in our opinion, cannot conceivably result in any injustice to either party and compliance therewith will be of assistance in our effort to dispose properly of the appeal in this Court. The application for rehearing should be overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

In accordance with previous order remanding this case to the trial court for clarification of the question whether defendant was adjudged guilty under both counts of the indictment and, if not, whether he was adjudged guilty of possession of cocaine, as charged in the first count, or, on the other hand, whether he was adjudged guilty of possession of marijuana, as charged in the second count, the return of the trial court shows by its amendment to the judgment nunc pro tunc that defendant was not found guilty under both counts but that he was found guilty under Count One only, which charged possession of cocaine. It thereby becomes unnecessary for us to consider the issue raised by appellant pertaining exclusively to the second count, which charged defendant with the possession of marijuana.

The single issue as to the first count of the indictment is thus stated in appellant’s brief:

“Was the seizure of what later proved to be cocaine from the automobile of defendant valid?”

As hereafter explained, we conclude that it was.

A large part of the evidence consisted of the testimony of Sergeant Jim Brooks of the Narcotics Division of the Jefferson County Sheriff’s Department. He testified that on November 11, 1979, he received information from a Center Point confidential informant that narcotics activity involving defendant and another person was occurring at one of three houses located at 2729 Center Point Road in Jefferson County. The three houses were located close together; the occupants used the same address and a common driveway from the highway to the curtilage of each house. On November 11 and 12,1979, Sergeant Brooks and others closely watched the houses, but they saw no activity at that time. On November 13 he conducted surveillance again. He testified that just before he and the other officers stopped at or near the premises the following occurred:

“Just previous to sitting up in the area, there, as we came by the drive way, ourselves, in a vehicle, we observed a vehicle coming out of the drive way onto Center Point Road, and this vehicle turned North on Center Point Road.
“It was driven by Wayne Box, and it was occupied by a passenger named Danny Bice, and this was at approximately 3:30 P.M.”

The testimony of the witness continued as follows:

“A. No activity. When we first set up, and for a period of time until approximately 8:30 P.M., the same two people, Wayne Box and Danny Bice returned in the same vehicle that we had observed earlier, a ‘74 Blue Torino.
“When they pulled into the front of the house, there, they pulled right up adjacent to the front door, just a few feet from the front door.
“Danny Bice took a small, brown sack into the house, and helped Wayne Box place three large, green garbage bags, disposal, plastic type, filled with an unknown substance in the trunk of this ‘74 Blue Torino.
“And, then, they placed a smaller package into the front seat.
“Q. These packages that you describe, did they bring them from inside the house there and put them in the trunk?
“A. Un — hunh, yes, sir.
“Q. O.K. After they put these packages into the car, what, if anything did you do, or observe?
“A. Then the vehicle drove away, with Wayne Box driving.
“Q. Did you all continue your surveillance of the house?
“A. We did. Apparently Danny Bice stayed behind, and, as the vehicle drove away, Blanton, who was out on the road in a chase car, was notified, and, due to the heavy traffic, he lost the vehicle as he attempted to over take him.
“Q. I’m sorry, Wayne Box left. Mr. Box was not in the car with him, is that correct?
“A. Danny Bice stayed behind.
“Q. O.K. Now, after he had left and you all continued your surveillance, what was the next thing you saw, or observed, concerning the house located at 2729 Center Point Road?
“A. We were able to look into the window from our position there in the woods and we observed Danny Bice sitting in an area of the house, there, apparently in front of a table.
“And, for — he had a quantity of white looking substance in front of him, on a mirror like area. It was a bright, shinny like area, either what a glass, or a mirror, would look like.
“A. Right along in there is where we were able to observe, looking into the window of the house, itself.
“Q. O.K. So, this (indicating) is the window on the front of the house, is that correct?
“A. Yes, sir. It was a rather large type window, coming down within two and one-half feet, or so, from the ground.
“Q. Were there any curtains, or anything, on the window?
“A. There were a burlap type curtain, there, but at this time the curtain was not drawn on this particular window, nor on another window on the front, that went into the bedroom of the house.
“Q. O.K.
“A. As the night progressed, the curtains were pulled together, there.
“Q. O.K. Do you have a judgment ás to how far from this point next to the ‘W’ it was to the window of the house, it was, in feet?
“A. In judgment—
“Q. Just your best judgment.
“A. Forty to forty five feet.
“Q. O.k.
“A. Fifty, at the most; forty to fifty, I think.
“Q. After you observed this, what, if anything, did you observe then?
“A. We heard a peculiar type sound coming from the house.
“Danny Bice was using the poker card and razor blade to cut the cocaine. He was chipping the cocaine, and, as the razor struck the glass, or the mirror like surface, it was making a whole lot of racket, and every dog from a mile and a half was barking, it seemed like.
“Q. Could you see the playing card?
“A. We could see the playing card.
“Q. What, if anything, happened next?”

Thereafter, Sergeant Brooks testified that “about 10:50 p. m., 10:45, or 10:50, p. m.,” the defendant returned and he and Danny Bice loaded some more sacks, “and all into the car,” and they locked up the house, locking the front door, and they left the scene. The witness stated that surveillance was maintained at the same “observation point” until daylight of the morning of November 14; he resumed it about noon, with the understanding that another officer was in the process of obtaining, or had obtained, a search warrant for the house. The witness further testified that he then maintained surveillance of the area at intervals, including a large part of the night of November 16-17, and the following occurred:

“Q. What, if anything, did you observe at approximately 6:35 a. m. that morning?
“A. It was at approximately 5:30 a. m.
“Q. O.k. At approximately 5:30, was it dark at that time?
“A. It was just beginning to break dawn.
“Q. What, if anything, did you observe at that time?
“A. The same vehicle, the ‘74 Blue Tori-no, arrived at the scene and pulled into the front yard.
“It was the same vehicle that we had observed earlier being driven by Wayne Box. Wayne Box got out of the car, in the little trail, that I mentioned there, near the end of the arrow—
“Q. Are you referring to right here (indicating)?
“A. Right there.
“Q. Indicated by the area where you have drawn the two lines?
“A. Un hunh.
“Q. O.k.
“A. Box got out of the car, there, and went up into the woods, there, into the wooded area. It is not really woods. It’s a vine covered type area, with kudzu type morning glory type vines.
“Q. O.k., sir.
“A. And, he went into the area, there, and he was looking around in the weeds, “At this point in time, Harris and myself were around the ‘O’ the first ‘O’ in ‘W’ there.
“Q. O.k. I’m going to put just a little ‘X’ by the ‘O’. Is that where you were at that time?
“A. At that time, when he drove up.
“Q. All right. Go ahead. What else did you observe?
“A. He walked up to right behind where the ‘X’ and the date of the 13th is marked there, right in that area right there.
“Q. O.k.
“A. And began to rummage around in the weeds, bending over like he was looking for something.
“I had to move around to get — I was still in the same area, but I had moved to get my line of sight good, there, and it was still breaking day more gradually each minute.
“He looked around, I guess, for about ten minutes, and then he went back to his car, and he got into the car, and he backed up like he was going to go back out the driveway.
“But, when he backed up, the car, he stopped it in a position headed out the driveway, but still in front of the house, more or less.

“Q. What did you observe next?

“A. And it got more light over the next fifteen minutes, or so, Sgt. Phillips was waiting out on Center Point Road, in his vehicle, and we notified him, talking back and forth about the situation.
“We were waiting for Bice [sic] to make another move. He did. He got back out of the car, again, and at this time it was — the line of vision was very good. It was—
“Q. It was daylight at that time?
“A. It was very good daylight.
“Q. O.k. What did you observe Mr. Box do there, the second time that he got out of the car?
“A. As he got out of the car, he walked back up into the same area, there, and began rummaging through the vines and weeds again.
“He finally picked up some plastic bag, a little small plastic bag, like.
“Q. Could you see the bags?
“A. We could see the bags in his hand. They looked like they had something white in the bottom of them. They weren’t filled up. It was just a portion of white, maybe a third of the way up in the bag, something like that.
“He took—
“Q. O.k. go ahead. What did he do?
“A. He took the bags and he went back to his car, and he got into the car, and, from what we could observe there — from what I could observe there, he placed the white bags into a brown paper sack.
“Q. O.k.
“A. And, at this time, the girl, this white female girl was sitting there, he handed the — she would turn around. We really couldn’t see what he was doing with his hands when he got them below the seat line.
“But, then, he cranked up and drove down the driveway. We notified Phillips that the vehicle was coming out, and, as he headed onto Center Point Road, there, Phillips blocked him, and he backed up the driveway.
“We were, myself and Harris, on foot, and we started chasing him down the driveway, or following him, and as he attempted to back up the driveway, as Phillips approached him in his vehicle, we got him stopped in the driveway.
“Q. All right. After the car was stopped, what, if anything, did you do?
“A. I identified myself to Wayne. Wayne got out of the car, and the girl got out of the car on her side.
“I looked into the car, itself, after Wayne got out, and there was a purse laying on the front seat.
“The purse was open, and in the top of the purse there was a paper sack.
“Q. Did you remove the paper sack out of the purse?
“A. I believe Harris actually took the sack from the purse. He was on the side with the female and away from the steering wheel.
“I was on the side.
“Q. Did you observe the paper sack being removed by Officer Harris?
“A. Yes, sir.
“Q. Did you see what Officer Harris did with the paper bag that he removed from the purse, there?
“A. He kept it on him until Sgt. Phillips got up to the car, itself, and after we had secured that scene, so far as taking Wayne Box and the white female into custody, we removed ourselves from where we were and went back into the house.”

Other evidence showed without dispute that the plastic bags contained cocaine.

Appellant cites numerous authorities on the general subject of Search and Seizure, but fails, in our opinion, to show an unreasonable search and seizure as to the cocaine that was found in the automobile. We do not agree with the statement of appellant, “Based upon the foregoing authorities, it is submitted that the arresting officer had no reasonable ground to believe that Box was at the time of his arrest committing a crime or was otherwise engaged in any activity which could have given rise to probable cause to effect an arrest or search.” On the contrary, we think that the officers at that time had much more information and knowledge than was required to give them probable cause for believing that Box was at the time, and had been for several days, engaged in violation of the Alabama Uniform Controlled Substances Act, and they were justified in making an arrest of him at the time. Nor are we in agreement with either of the apparent conclusions of appellant as found in each of the two following sentences in his brief:

“The plastic bags, which proved later to contain cocaine, were in a brown paper bag, and were not visible until the bag was opened. Further, the report shows that this paper bag was concealed in the purse of the girl passenger in the car.”

Although it may not be conclusive that the “plastic bags” were “visible” to the officers as they looked into the automobile, it is conclusive that they were visible to Sgt. Brooks at the time defendant picked them up and took them to the automobile where they were placed in the brown paper bag. As to the second sentence, instead of the paper bag being concealed in the purse, the testimony of Sergeant Brooks was as follows:

“Q. In fact, it will be your testimony that you saw that?
“A. That is what I thought I saw. I thought that it was on the purse, you know.
“Q. I understand. Are you saying that you are not sure now and that it could have been concealed in the purse?
“A. Well, the brown paper bag, a portion of it was in the purse. Part of it was on the purse.
“From my field of vision, from my line of sight, from where I first appeared to see.”

The paper sack that contained the plastic bags that contained a white substance that proved to be cocaine was partly in an open purse and in plain view of the officers at the time they arrested Mr. Box and took possession of the automobile. They knew that only a few moments before he had manual possession of the sack and its contents. In taking the defendant and the automobile into their custody, it was their right and duty to take possession of the sack and its contents. There was no violation of appellant’s right to security against unreasonable searches and seizures, and we find no support for such insistence in any of the authorities relied upon by appellant.

We find no error in the record 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.