text:
    Jean Cross STRINGFELLOW v. Howard William STRINGFELLOW, Jr.
    No. 54924.
    Supreme Court of Mississippi.
    June 6, 1984.

      David 0. Butts, Tupelo, for appellant.
    J. Hal Ross, Brandon, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This appeal arises from the Chancery Court of Rankin County, Mississippi, where Chancellor Billy Bridges denied the motion of Jean C. Stringfellow to set aside a final judgment and reopen her case against Howard William Stringfellow. We affirm.

After almost a quarter of a century of marriage these parties were separated. In September of 1982 as a result of a temporary hearing, appellee was ordered to pay unto his wife the sum of $1,625 per month in temporary alimony. The case came on for trial September 30, 1982, and at that hearing the appellee testified that he was the sole heir of his mother and that her estate consisted of some $10,000 in cash and a house valued at $40,000. Based on this testimony, on October 11, 1982, the chancellor awarded the appellant a divorce and $1,000 a month in alimony. He also granted the appellant $8,000 for repairs to the home and the payment of all medical bills incurred by her prior to September 16, 1982, as well as $1,000 as a contribution toward her attorney’s fees.

When an inventory of this estate was filed in the probate court of Tennessee, it showed that the estate in question was worth approximately $42,700. This inventory did not include real estate and other property valued at approximately $40,000. When appellant became aware of the existence of this inventory, she filed a motion for relief from judgment pursuant to the provisions of Mississippi Rule of Civil Procedure 60(b). After a full hearing on this motion the chancellor denied it and thus this appeal.

The one assignment of error is that the lower court erred in denying appellant’s motion to set aside the judgment and reopen the case. Appellant argues that, (1) the judgment was procured through fraud or perjury of the appellee as he misrepresented the true value of his mother’s estate, and (2) further that the judgment was procured through the accident or mistake of her trial attorney who conducted only limited discovery and felt it unnecessary to introduce any medical testimony in support of her claim of her own physipal disability at the time of the divorce. Obviously, her present attorney is not the same attorney who represented her in the trial court.

Mississippi Rule of Civil Procedure 60(b) provides, inter alia, the following,

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;

MRCP 60(b) is very nearly identical to the Federal Rule of Civil Procedure; the difference being the time limitation within which 60(b) motions must be filed. In situations such as these, where the two rules are so similar, we have said that we will consider authoritative federal constructions when determining what our construction of our rule ought to be. Brown v. Credit Center, Inc., 444 So.2d 358, 364 fn. 1 (Miss.1983). In this light we find that motions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused. Clarke v. Burkle, 570 F.2d 824 (5th Cir.1978). When ruling on such motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation. House v. Secretary of Health and Human Services, 688 F.2d 7 (2nd Cir. 1982). Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case. Mastini v. American Telephone and Telegraph Co., 369 F.2d 378 (2nd Cir.1966), cert. den. 387 U.S. 933, 87 S.Ct. 2055, 18 L.Ed.2d 994.

Rule 60(b)(1) deals with relief from judgment obtained by fraud, misrepresentation, or other misconduct of the adverse party. In those circumstances, the burden is upon the movant to prove fraud, misrepresentation or other misconduct, and to do so by clear and convincing evidence. Rozier v. Ford Motor Company, 573 F.2d 1332 (5th Cir.1978). To constitute fraud there must be (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance'on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Gardner v. State, 235 Miss. 119, 108 So.2d 592 (1959).

Rule 60(b)(2) provides for relief from judgments procured through accident or mistake. The case of Hoffman v. Cele-brezze, 405 F.2d 833 (8th Cir.1969), announced that the general rule is that Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief. Id. at page 835. Additionally, it has been said that a party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertance; gross negligence, ignorance of the rules, or ignorance of the law is not enough. 11 Wright and Miller, Federal Practice and Procedure, § 2858, page 170 (1973). See also, Bershad v. McDonough, 469 F.2d 1333 (7th Cir.1972); and Cline v. Hoogland, 518 F.2d 776 (8th Cir.1975). Finally, the Fifth Circuit has held “consistently” that “relief from a judgment is not to be granted under Rule 60(b) simply because its entry may have resulted from incompetence or ignorance on the part of an attorney employed by the party seeking relief.” Clarke v. Burkle, supra, at 831 (emphasis added).

There was a difference in the testimony of the appellee at the divorce hearing and at the Rule 60(b) hearing on the value of his mother’s estate. At the motion hearing, appellee explained that the inventory contained a $10,000 error as to one treasury bond. Further he testified that the $2500.00 furniture listed in the inventory was of little value and that he had given it away. He also testified that he spent $5,000 in repairs to his mother’s house and expected to spend $8,000- to $10,000 more on the house. Appellee continued by explaining that at the divorce hearing when testifying on the value he would receive from the estate that he was speaking in terms of net value. Appellee further added that after he subtracted the necessary expenses to his mother’s home he thought that he would be left with $10,000 plus $40,000 for the house. After hearing this testimony, the chancellor denied the appellant’s 60(b) motion for relief from the judgment on the basis of fraud, misrepresentation or misconduct.

This record simply will not support a finding that the appellee perpetrated a fraud, a deliberate misrepresentation, or committed misconduct calculated to deprive the appellant from fully and fairly presenting her case. Appellant’s burden was proof that is clear and convincing, and on this record the burden was far from met. We are certainly unable to say that in denying the motion the chancellor abused his discretion.

Appellant also claims that she is entitled to relief under Rule 60(b)(2) because of her then attorney’s failure to conduct adequate discovery and to introduce medical evidence substantiating her claim of dependency in impeaching appellee’s testimony. Clarke v. Burkle, supra, is dis-positive of this argument. Incompetence or ignorance on the part of a party’s attorney does not give rise to Rule 60(b)(2) relief.

Appellant has failed to meet the burden of proof necessary to obtain relief under Mississippi Rule of Civil Procedure 60(b)(1) and she has shown no grounds for relief under Mississippi Rule of Civil Procedure 60(b)(2). The trial judge acted well within his sound discretion, and, that being the scope of our review under our rule, we therefore affirm.

AFFIRMED.

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

BOWLING and ROBERTSON, JJ., not participating.


source: Caselaw Access Project

author: PRATHER, Justice,

license: Public Domain

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. BORDEN, INC.
    No. 53961.
    Supreme Court of Mississippi.
    June 6, 1984.

      Leo T. Aragon, Jackson, for appellant.
    Beth L. Orlansky, Harold D. Miller, Jr., Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
   PRATHER, Justice,

for the Court:

This is an employment compensation case. The claimant, Jimmy Kelly, was awarded unemployment benefits after a hearing before Mississippi Employment Security Commission Referee. Referee G.A. Gilly’s decision was adopted and affirmed by the Mississippi Employment Security Commission Board of Review. The claimant’s employer, Borden, Inc., appealed the findings of the Board of Review to the Hinds County Circuit Court which reversed the Board’s finding and held that the claimant was not entitled to unemployment benefits since he was discharged for misconduct connected with his employment. The claimant and the Mississippi Employment Security Commission appeal to this Court and assign as error that:

The circuit court erred in holding that Borden’s policy of discharging employees who have had their wages garnished four or more times, is a discharge for misconduct connected with his work as contemplated by Mississippi Code Annotated section 71-5-513(A)(2) (Supp.1983).

We affirm.

I.

The facts of this case are undisputed. Claimant Jimmy Kelly was employed with Borden Inc. as a stacker in Borden’s ice cream vault since June 2, 1977, and he was discharged on May 5, 1981. The reason for his discharge was service of seven writs of garnishment on Borden for the garnishment of Kelly’s wages resulting from unpaid debts. The seven garnishments served on Borden were issued within two years by four different creditors. These debts and garnishments are summarized as follows:

Item 1) Bush Jewelers: Date of garnishment, March 12, 1979, amount, $500. Given oral and written warning. Order from Judge Martin, acknowledged March 14, 1979.
Item 2) Bush Jewelers: Date of garnishment, June 4, 1979, amount $500. Same debt and oral and written notice given. Acknowledgement to Judge Martin, June 8, 1979.
Item 3) Credit Center of Pearl: Date of garnishment October 12, 1979, amount $208. Judge Moore, garnishment acknowledged October 23, 1979.
Item 4) Shaws Clothing: December 17, 1980, amount $285.91, Judge Bass, acknowledged January 7, 1981.
Item 5) Credit Center of Pearl: Date of garnishment February 27, 1980, amount of indebtedness, $208, Judge Moore, ac-knowledgement dated March 1, 1980.
Item 6) Termplan, Inc.: Date of garnishment March 20, 1981, amount $17,155. Judge Patterson, involved, and garnishment acknowledged March 24, 1981.
Item 7) Shaws Clothing: March 24, 1981, amount $285.91, Judge Bass involved, garnishment acknowledged April 3, 1981.

The Borden Company policy on which Kelly’s discharge was premised states that:

A warning is required on the second indebtedness. Upon receipt of the third garnishment, the individual is once again warned both orally and in written form and advised the fourth garnishment may result in discharge. No action will be taken for more than one garnishment on the same debt. Each incident will be documented.

Present at the hearing before Referee Gilley were two representatives of Borden’s Inc. Although claimant had been notified of the hearing, he was not present before the referee, nor was he represented. The hearing resulted in the affirmance of the claims examiner's decision to allow the benefits.

II.

Public policy with regard to the payment of unemployment benefits indicated by Mississippi Code Annotated section 71-5-3 (1972) expresses the legislative intent, stating that:

As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden, which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.

To accomplish this stated legislative intent, all covered employers within the state pay into the state employment fund under prescribed rules. Mississippi Code Annotated § 71-5-3 (1972), § 71-5-111 (1972), and §§ 71-5-351 to -355 (1983 Supp.); see Mississippi Employment Security Commission v. City of Columbus, 424 So.2d 553 (Miss.1982). This employment fund is to take care of deserving employees who have lost their jobs through no misconduct and involuntary unemployment.

While Mississippi has no statute regarding discharge from employment or disqualification from unemployment benefits on account of wage garnishments, Federal Law at 15 U.S.C.A. section 1674 (1968) declares that:

(a) No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.
(b) Whoever willfully violates subsection (a) of this section shall be fined not more than $1,000, or imprisoned not more than one year, or both.

We emphasize that Borden’s right to discharge its employees for excessive wage garnishments is not questioned, nor is the reasonableness of Borden’s garnishment policy challenged. However, the public policy consideration in question here involves two important social concerns: the involuntary unemployment of the employee as well as the burden upon the employer.

For the employer as garnishee, he has to hire an attorney to appear and answer a suggestion of garnishment (Mississippi Code Annotated § 11-35-1 (1972), Mississippi Code Annotated § 11-35-25 (Supp. 1983), and Mississippi Code Annotated § 11-35-27 (Supp.1983), ascertain the proportionate amount due an employee under garnishment and retain the non-exempt percentage of disposable earnings to satisfy the garnishment writ (Mississippi Code Annotated § 11-35-23 (1983 Supp.) together with all the necessary bookkeeping incident thereto. For failure to so answer, a garnishee subjects himself to personal judgment. Mississippi Code Annotated § 11-35-31 (1972). All of this places additional financial burden on an employer who is contributing already to the state employment fund and subsidizing unemployment benefits under the act.

III.

The issue presented here is whether excessive garnishments constitute “misconduct connected with his work” as contemplated by Mississippi Code Annotated section 71-5-513(A)(2) (Supp.1983).

Section 71-5-513(A)(2) provides that:

An individual shall be disqualified for benefits.
(2) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work.
(Emphasis added).

This Court in Wheeler v. Arriola, M.D., 408 So.2d 1381 (Miss.1982) defined “misconduct” as:

(C)onduet evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.
(Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941).)

It is noted that this factual situation is extreme. There is no testimony about undue personal hardships such as excessive medical expense, work lay-offs, or unef-fected losses that would explain large in-debtednesses. On this record there is only the bare listing of the four creditors which include a jewelry store and a clothing store.

It is the view of this Court that seven garnishments from four different creditors of the employee with an announced and published plant policy against this conduct evidences “conduct evincing wanton disregard of the employer’s interest” and a “disregard of standards of behavior which the employer has a right to expect.” Wheeler, supra.

We hold excessive garnishments under a reasonable and constitutionally permissible garnishment policy does constitute “misconduct connected with his work” to preclude unemployment benefits.

IV.

It is the opinion of this Court that claimant Jimmy Kelly is not entitled to unemployment benefits since excessive garnishments upon his wages do constitute “misconduct” connected with his work under the statute in question. Therefore, the decision of the Circuit Court of Hinds County is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P. JJ., and HAWKINS, DAN M. LEE and SULLIVAN, JJ., concur.

BOWLING, and ROBERTSON, JJ., not participating.


text:
    William Hughes MOORE v. Mary Elizabeth McDaniel MOORE
    No. 54271.
    Supreme Court of Mississippi.
    June 6, 1984.
    John H. Ott, Guy, Whittington & Ott, McComb, for appellant.
    Michael B. Cupit, Mounger, Mounger & Cupit, Tylertown, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The question presented by this appeal is whether Mississippi Rule of Civil Procedure 12(a) granting the defendant thirty (30) days within which to file an answer applies to a motion to cite for contempt for failure to pay child support. The court holds that Rule 12(a) does not apply, but Rule 6(d) and Rule 81 control.

I.

On June 21, 1982 Mary Elizabeth McDaniel Moore filed a “Motion for Citation for Contempt” for failure of her ex-husband, William Hughes Moore, to pay child support. A fiat dated the same date directed issuance of process for a hearing set for July 6, 1982, and personal process was served on the defendant on June 24, 1982.

On July 2, 1982, Moore filed a motion to dismiss, or in the alternative for a continuance asserting that he was denied thirty (30) days within which to avail himself of discovery, prepare his answer and cross-complaint and ready for trial. The trial judge overruled the motions, but set the hearing for trial on July 8, 1982. At trial the appellant was found to be in contempt and ordered to pay back child support and attorneys’ fees.

II.

The assignments of error to this Court address only the denial of the appellant’s motion for a dismissal, or in the alternative, a continuance, on the ground that the appellant was denied his due process right to a fair trial for lack of time to prepare his defense, including discovery time.

A study of several of the rules of the Mississippi Rules of Civil Procedure is necessary for a complete analysis.

The appellant contends that this question is controlled by Rule 12(a) of the MRCP granting a defendant thirty (30) days after service of summons and complaint upon him to file his answer.

However, this motion for citation for contempt falls within Rule 81, Mississippi Rules of Civil Procedure, entitled Appliea-bility of Rules. Rule 81(a) provides that certain civil actions have only limited applicability, and those civil actions with limited applicability are generally governed by statutory procedures. MCA, Title 93 (1972), concerning domestic relations, is one such category with limited applicability. MRCP 81(a)(9).

Further, under MRCP 81(d) “enforcement of such judgments by contempt proceedings or otherwise, shall be governed by the provisions of these rules as to motions.” It is of no concern by which term the pleading is denominated, whether called a complaint, petition, or motion, so long as the substantive matter is covered within the pleading contains allegations of contempt.

Motion practice under the MRCP 6(d) specifically states that notice of the hearing shall be served not later than five (5) days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. In calculating the five days time period, however, a party must remember that computation of a period of time less than seven days must exclude intermediate Saturdays, Sundays, and legal holidays. MRCP Rule 6(a). The effect, then for both these provisions is to require, as a minimum, an actual seven (7) day period of time for hearings on motions. We conclude that five days process, excluding Saturdays, Sundays and holidays is sufficient for a contempt hearing under the new rules.

The chancery court procedure prior to adoption of these rules was to permit a chancellor authority to hear vacation matters by special order on service of summons five (5) days before the return date thereof. MCA §§ 9-5-99 and 9-5-91. Likewise, in matters concerning “minors’ business,” cases are triable on five (5) days service when the summons is made returnable to a regular term of court. MCA § 11-5-67. These new rules of procedure are an extension of our former procedure m regard to these domestic relation matters.

It should be noted, however, that a chancellor may in his discretion grant continuances on proper motion. MCA §§ 11-7-123 and 9-5-101 (1972). This decision will obviously be based upon the issues involved in a particular suit where more than five days notice is necessary to insure a fair trial to the defendant.

In this case the chancellor was within his discretion in denying a continuance for a hearing on non-payment of child support. This type case is of such subject matter that chancery courts should have authority to address the case at the earliest possible time to afford relief to minors as well as due process to defendants.

We find the chancellor’s action proper and within his discretion. Finding no error, we affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, DAN M. LEE and SULLIVAN, JJ., concur.

ROBERTSON, J., not participating.

      . These rules are published at pages 1-241, Vol. 395-397 So.2d, Mississippi cases. The effective date of the rules was January 1, 1982..


author: HAWKINS, Justice, BOWLING, Justice,

text:
    Bobby Lee HAYNES v. STATE of Mississippi.
    No. 54881.
    Supreme Court of Mississippi.
    June 6, 1984.

      Herman F. Cox, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   HAWKINS, Justice,

for the Court:

Bobby Lee Haynes was convicted in the Circuit Court of Harrison County of the crime of manslaughter. The indictment also charged him with being a habitual offender, and this likewise being proved to the circuit judge, he was sentenced to twenty (20) years without parole.

The appeal challenges the sufficiency of the evidence, and assigns other errors. No error is assigned as to his conviction of being a habitual offender. The victim, John Mitchell, died from a severe beating by Haynes in a local saloon. This is a classic jury case, Haynes had unquestionably been previously assaulted by Mitchell, and provoked; yet it was a matter for the jury to determine whether this slaying was in self-defense or anger at Mitchell.

We reverse upon the assignments of error we address: (1) the right of an accused to an instruction that in order to invoke the defense of self-defense, it is not necessary for the defendant to flee, and (2) oral response by the circuit judge to an inquiry by the jury during its deliberation.

At the conclusion of the trial, the defense requested the following instruction:

The court instructs the jury that while the danger which will justify the taking of another’s life must be imminent, pending, and present, such danger need not be unavoidable except by killing in self-defense. The court instructs the jury that the accused, Bobby Lee Haynes, need not have avoided the danger to his person presented by the deceased, John Mitchell, by flight. So long as the defendant was in a place where he had the right to be and was not the immediate provoker or aggressor, he may stand his ground without losing the right of self-defense. [R.359]

It has always been the law in this state that a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing.

In Long v. State, 52 Miss. 23 (1876), p. 34, it is stated:

Flight is a mode of escaping danger to which a party is not bound to resort, so long as he is in a place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor the aggressor in, the combat. In such case he may stand his ground and resist force by force, taking care that his resistance be not disproportioned to the attack.

It is thus clear that the latter part of the requested instruction correctly stated the law. Such an instruction is not often applicable to the facts of a case, however. In this case we think the judge should have either granted the instruction, or some instruction that embraced this principle. There was some testimony by Haynes that he began to walk away when the trouble started, and the jury could have wondered why he did not simply leave. Whenever, from the facts of the case, it appears that the defendant could have avoided the fatal difficulty only by precipitous retreat, but did not leave, if the other requisite factors are present as stated in Long, supra, then the defendant is entitled to such an instruction.

The following instruction, S-4, was granted the state:

The court instructs the jury that to make a homicide justifiable on the grounds of self-defense or defense of another, the danger to the defendant must be either actual, present and urgent or the defendant must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him some great bodily harm, and in addition to this, that there was imminent danger of such design being accomplished; and hence mere fear, apprehension or belief, however sincerely entertained by one person that another designs to take his life or do some great bodily harm, will not justify the former in taking the life of the latter party. A party may have an apprehension that his life is in danger, and believe that the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the jury may determine the reasonableness of the ground upon which he acted. [R. 350]

The defense made no objection to this instruction.

The record reveals that when the jury had been deliberating three hours, the following transpired:

BY THE COURT:
We have a question from the Jury. “Does fearful apprehension alone in light of previous events justify a ruling of self-defense?
BY MR. JOHNSON:
I think the Court should answer with the simple word “no”.
BY THE COURT:
I’m going to do it this way.
In reply to your inquiry the phrase “fearful apprehension” is not used in any of the instructions that you have before you. The two instructions on the question of self-defense are numbered D-ll and S-4. As I have stated you read the instructions together, however, your attention is invited to that part of instruction S-4 following the semi-colon on the seventh line from the top.
BY MR. COX:
Your Honor, we would object on the previous grounds stated, and also the Court is singling out one part of one instruction and I think that’s improper, Your Honor, being S-4.
BY THE COURT:
You may be right, Herman, in one sense of the word, but that’s the part where apprehension is mentioned, and the only place in either of the instructions where apprehension is mentioned if I read them correctly. Let’s see if I’m not right.
All right, add this to it. “I trust this will answer your question inasmuch as this is the only place where the word ‘apprehension’ is mentioned.”
BY MR. COX:
We still object for the same reasons. BY THE COURT:
All right, sir.
(At this time, the Court and Counsel for the Defendant presented the following Motion for Mistrial.)
. BY MR. COX:
Comes now the Defendant, Bobby Lee Haynes, and moves the Court of a mistrial and states the following grounds: That at approximately 3:33 P.M. the Jury sent out a written question to the Court and said question being in the Record. And in response to this particular question, the Court made the response to, reference to Instruction D-ll and Instruction S-4, and further commented to look at a certain part or particular part of Instruction S-4, and the Defendant would state that this is error and that a certain Instruction has been singled out and, therefore, is an improper comment, and that the Court should grant a mistrial.
BY THE COURT:
Overruled.

Five minutes later the jury reached its verdict.

After the jury was dismissed, the record shows the following transpired before the circuit judge:

BY MR. COX:
Your Honor, we renew our Motion for Mistrial on the grounds state before, and those grounds are as follows:
That while the Jury was deliberating, they sent out a written question to the Court, which is in the Record, and asked the Court a specific question, and in response thereto the Court advised them basically that they ought to refer to Jury Instruction D-ll and Jury Instruction S-4, and specifically point out a certain part of Instruction S-4, and we think that is error, and the Court should consider this again, and grant a mistrial.
BY THE COURT:
Well, after the Newell case, I think the Judge was given a wider discretion in their Instructions to the Jury, and a wider latitude about how to handle it. Of course, in the inquiry that they handed to me, it was quite obvious that at least one person on the Jury had read something into the Instructions that was not there. They read into it the phrase “fearful apprehension”. Well, nowhere in any of the Instructions was that phrase even mentioned. I don’t know how they gathered that. I have agreed that immediately after I pointed out that it didn’t exist, it wasn’t five minutes until they came back. I’ll let the Record show that for you. So it’ll be overruled.

In three recent cases we have either criticized or condemned this kind of instruction. See: Robinson v. State, 434 So.2d 206 (Miss.1983); Lenoir v. State, 445 So.2d 1371 (Miss.1984); Scott v. State, 446 So.2d 580 (Miss.1984).

As Justice Dan Lee so aptly pointed out in Robinson v. State, P. 210, “the instruction is fraught with redundancy”. In this case the trial judge’s oral comment to the jury served to accentuate the very portion of the instruction which we have criticized.

We cannot say that this did not influence the jury. This court has always cautioned circuit judges making any comments, or giving instructions to the jury after it retires to reach a verdict. Our two most recent cases are: Girton v. State, 446 So.2d 570 (Miss.1984) and Stubbs v. State, 441 So.2d 1386 (Miss.1983).

In this case the jury had already been amply instructed, indeed, more than amply instructed in S-4. There was no need to further instruct them. While the circuit judge was undoubtedly trying to deal with a vexing type of problem as best he could, we believe the proper response to the jury would have been that they had already been properly instructed on this question and to read their instructions.

The answer the court gave may very well have accentuated an instruction even further, which was error.

As stated in 23A C.J.S., Criminal Law, No. 1304, although it is not necessarily reversible error, court instructions should avoid repetition of the same or different forms of the same rule of law, once the jury has been fully and fairly instructed thereon. This authority also states, pp. 738-739:

... the repetition of instructions should be avoided as tending to confuse and mislead rather than to enlighten the jury. The mere fact, however, that an instruction or a part thereof is repeated does not constituted reversible error, unless such repetition gives such undue prominence to some principle or phase of the case as is calculated to impress it unduly on the jurors’ minds, or results in an unfair statement of law in relation to accused’s rights.

In the Florida case of Beckham v. State, 209 So.2d 687 (Fla.1968), the court stated, pp. 688-689:

The defendant has also complained on appeal of the trial judge’s repetition of the manslaughter charge in his instructions to the jury. It appears from the record that the trial judge, while instruction the jury, experienced some difficulty. As a result of this the manslaughter charge was given three times and it was given once again when the jury returned and expressed confusion as to the instructions. We believe that this repetition, although inadvertent, was harmfully prejudicial to defendant’s case and that it constitutes additional grounds for reversal. [Emphasis added]

In'the recent case of Wall v. State, 413 So.2d 1014 (Miss.1982), this court stated, p. 1015:

We are constrained to add as a caution to prosecuting attorneys that there appears to be no necessity for the above instruction. When the circuit judge has adequately instructed a jury on all the points of law involved in a ease; the State should eschew a needless risk of reversal by adding pure surplusage or repetitious instructions.

For these reasons, the case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

BOWLING, J., PATTERSON, C.J., and DAN M. LEE, J., specially concurring.

ROBERTSON, J., not participating.

BOWLING, Justice,

specially concurring:

Since I have been a member of the Court, I have done my best to rid the criminal jurisprudence of this state of a part of the usual self-defense instruction that reads as follows:

A party may have an apprehension that his life is in danger, and believe that the grounds of his apprehension just and reasonable, and yet he acts at his own peril.

I expressed my sincere concern about this instruction in a dissenting opinion in Robinson v. State, 434 So.2d 206 (Miss. 1983) and re-iterate here what I said then. This instruction that continually is being given is confusing, misleading and contradictory. It gives a defendant a right of self-defense and then takes it away by telling the jury that he acted at his peril. As I pointed out in the dissent in Robinson, supra, this Court has been trying to correct this instruction for forty-eight years since the case of Bailey v. State, 174 Miss. 453, 165 So.2d 122 (1936). Bailey warned prosecutors not to request the instruction set out in that opinion. The warning has gone unheeded. As I stated in Robinson, supra, I have no sympathy for criminals, but I do insist on fairness under the law.

I sincerely hope that a very few of the prosecutors of this state, who do not read this Court’s opinions, please make it a practice to do so, so that the warning of forty-eight years ago might finally soak in.

I hope and pray that whatever funded agencies conduct prosecutors’ seminars will someday have his problem on their agenda.

PATTERSON, C.J., and DAN M. LEE, J., join this specially concurring opinion.

      . In Robinson v. State, the majority and a special concurring opinion suggested the kind of instruction which this court would approve.


author: ROY NOBLE LEE, Presiding Justice,

text:
    In re Inquiry Concerning Judge William ANDERSON.
    No. 55346.
    Supreme Court of Mississippi.
    June 6, 1984.
    Luther T. Brantley, III, Jackson, for Mississippi Commission on Judicial Performance.
    No brief filed for William Anderson.
    Before ROY NOBLE LEE, P.J., and BOWLING and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

The Mississippi Commission on Judicial Performance filed a formal complaint against Justice Court Judge William Anderson, on November 14, 1983, being No. 83-132 on the Commission’s docket, charging him with misconduct which constitutes a violation of Section 177A, Mississippi Const. 1890, as amended.

After a hearing before the Commission, at which the respondent declined to appear, the Commission found from clear and convincing evidence that respondent violated Section 177A of the Constitution in the following respects:

(1) That he knowingly perjured himself in that he testified on the first complaint hearing he had never issued a garnishment during his tenue as justice court judge; that no one had ever filed a written suggestion of garnishment in his court; that $7.00 court costs were paid in only the three instances mentioned in Anderson No. 82-044 and in Anderson, footnoted infra; that the proof showed on the hearing sub judice that on August 3, 1982, approximately eight months prior to respondent’s said testimony, Franklin Credit & Collections of Tupelo filed a written suggestion of garnishment with respondent and paid $7.00 court costs; that Judge Anderson failed to issue the garnishment although Franklin contacted him several times and discussed the garnishment with him.

(2) That in No. 82-044, [In re Anderson, 477 So.2d 1275 (Miss.1984) ], respondent stipulated to the Commission that in all future cases, upon receipt of a written suggestion of garnishment and $7.00 court costs, he would issue garnishments in strict accordance with the law; that on May 6, 1983, Franklin Credit & Collections filed a written suggestion of garnishment and deposited $7.00 court costs, in its civil action against Jack and Linda Nanney, but respondent did not issue the garnishment; that on May 27, 1983, Franklin Credit & Collections filed another written suggestion of garnishment and deposited $7.00 court costs with respondent, requesting issuance of a writ of garnishment in its civil action and that respondent did not issue the garnishment; and that the record does not reflect respondent refunded the $7.00 court costs in any case.

(3) That, at the hearing No. 82-044, Anderson, supra, Anderson told the Commission that he had $21.00 belonging to Gulf Finance, Booneville, Mississippi, in his justice court account as costs for garnishments he had never issued; that he would return the sums immediately upon the request of Gulf Finance; that on May 10, 1983, Gulf Finance requested return of said costs by certified letter, return receipt requested, and that, again, on July 27, 1983, Gulf Finance requested return of said costs by certified letter, return receipt requested, and in neither instance did the respondent refund the costs.

The Commission found that the respondent violated Section 177A of the Constitution in all those respects and recommended that he be removed from office and fined $2,000.

The evidence is uncontradicted in the record. Under Rule 8(A), the failure of a judge to answer or appear, will be taken as evidence of the facts alleged in the formal complaint, and the Commission so found. We consider parts of the several Canons of Ethics insofar as they relate to the charges against respondent. Canon 2, paragraph (A) contains the following language:

CANON 2
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
CANON 3
A Judge Should Perform the Duties of His Office Impartially and Diligently
A. Adjudicative Responsibilities.
(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.
(5) A judge should dispose promptly of the business of the court.
B. Administrative Responsibilities.
(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

This Court adopted the reasoning, in In Re Lloyd W. Anderson, 412 So.2d 743 (Miss.1982), from the North Carolina Supreme Court in the case of In Re Nowell, 293 N.C. 235, 237, S.E.2d 246, 255 (1977), and quoted as follows:

Willful misconduct in office is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.... [412 So.2d at 745],

In Re Lloyd W. Anderson, supra, further states:

The power to impose sanctions is delegated solely to this Court; it therefore follows we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord careful consideration to the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses. [412 So.2d at 746].

From our careful consideration of the finding of fact and recommendations of the Commission, the failure of the respondent to answer, deny or defend the charges, and our independent inquiry of the record, we are convinced that respondent’s action in those matters, which his testimony went to on the former hearing, the failure to remedy his practice in regard to the issuance of garnishments, and the failure or refusal to refund garnishment costs, which had been deposited with him by party litigants, were sufficient to bring disrepute to the judicial office and warrant sanctions against respondent. While the conduct of respondent, in our opinion, amounted to willful misconduct in office prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize as quoted in In Re Anderson, supra, that a judge may also, through negligence or ignorance, not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

Therefore, the recommendation of the Commission that William Anderson be removed from office as Justice Court Judge of District 5, Prentiss County, Mississippi, is accepted and his removal is so ordered and directed upon the filing of this opinion. However, we reduce the recommended fine and impose a fine in the sum of five hundred dollars ($500) and payment of all costs.

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

ROBERTSON, J., not participating.

      . Previously another complaint was filed against Judge William Anderson, which was related to the background of the new complaint filed in the cause sub judice. A fine was recommended by the Commission but that fine was not imposed by this Court and only the costs were ordered paid. In Re Anderson, 447 So.2d 1275 (Miss.1984).

      . Even though Justice Court Judge William Anderson may not now be in public office, this opinion and order effectively disqualify him from offering for a judicial public office again, and the question is not moot.


author: PER CURIAM.

text:
    Ex parte Johnny Ray COX. (In re: Johnny Ray Cox v. State of Alabama).
    82-722-M.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Rehearing Denied June 1, 1984.

      Frederick L. Fohrell of Fohrell, Hess & McMurtrie, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen. and Bill-ington M. Garrett, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is a petition for writ of mandamus to the Alabama Court of Criminal Appeals. The petitioner, Johnny Ray Cox, asks us to require the Court of Criminal Appeals to grant him an extension of time for the filing of an application for rehearing of his appeal from an adverse decision in a coram nobis proceeding.

The following facts led to the filing of this petition:

Johnny Ray Cox was convicted of second degree murder in the Circuit Court for Madison County on April 20, 1978. He was sentenced to a prison term of 150 years. On appeal, at which Cox was represented by court appointed counsel, the Court of Criminal Appeals affirmed the judgment of the trial court. Cox v. State, 363 So.2d 1054 (Ala.Cr.App.1978). Subsequently, Cox filed two petitions for writ of error coram nobis in the circuit court, both of which were denied. These decisions were upheld by the Court of Criminal Appeals on October 16, 1979, and October 6, 1981, respectively. On July 14, 1982, Cox filed a third coram nobis petition. On September 24, 1982, the circuit court issued the following order:

This case was presented on the petition of Johnny Ray Cox for Writ of Error Coram Nobis. The Court notes that this petition is filed subsequent to at least one other petition for Writ of Error Cor-am Nobis previously filed before this Court by this defendant.
Having reviewed this petition and the records regarding the conviction of the above-styled petitioner this Court concludes that this petition sets out no ground which was not or should not have been contained in the earlier petition which was heard by this Court.
Accordingly, the petition for Writ of Error Coram Nobis filed in this ease is denied.
It is further ordered that this case be dismissed.

On October 14, 1982, Cox filed his notice of appeal and motion for appointed counsel. The request for appointed counsel was denied on October 20, and, on November 18, Cox filed his appeal brief with the Court of Criminal Appeals. On February 1, 1983, that court affirmed the trial judge’s denial of the petition, and, on February 22, entered final judgment.

On February 25, 1983, the trial court entered an order appointing counsel to represent Cox on appeal from its denial of the petition, of which counsel received notice March 2.

Immediately, counsel filed in the Court of Criminal Appeals a series of motions attempting to have the judgment of affirmance and certificate of judgment set aside, or to gain an extension of time to file an application for rehearing. These motions were denied. Counsel then filed this petition for writ of mandamus.

The petition presents the following dis-positive issue:

Is Cox entitled to an extension of time for filing his application for rehearing, where requested counsel was not appointed until after the time for filing an application for rehearing had expired, and Cox is indigent?

We hold that he is not, and deny the writ.

Cox first argues that the appeal of his coram nobis proceeding was not a discretionary appeal, and that he, therefore, had a right to appointed counsel. He likens his case to that of Longmire v. State, 443 So.2d 1265 (Ala.1982). In Longmire, the defendant attacked by coram nobis proceeding the denial of his right to appeal from his original conviction. This court, “in an effort to insure that both justice and fairness prevail,” allowed an out-of-time appeal. Cox points out, first, that he, through no fault of his own, did not receive court appointed counsel until aftér the time for filing an application for rehearing had expired, and, second, that he manifested to the circuit court both a wish to appeal and a desire for appointed counsel, as did Long-mire.

We find Cox’s case and the Longmire case inapposite. Longmire was seeking an out-of-time appeal of his conviction. He had been determined indigent prior to trial, and following trial had expressed to his court appointed trial counsel his desire to appeal. Longmire was unaware that counsel on appeal and a transcript would be furnished him upon a finding of indigency. His sister discussed the case with trial counsel, but did not retain him. It appeared that Longmire, through no fault of his own, had failed to perfect a timely appeal from his conviction.

It is clear that Alabama law requires that indigent defendants who desire to appeal from their convictions be furnished counsel. Code 1975, § 15-12-22(a) and (b). On the other hand, there is no such requirement regarding post-conviction proceedings. Section 15-12-23 provides:

In proceedings filed in the district or circuit court involving the life and liberty of those charged with or convicted of serious criminal offenses including proceedings for habeas corpus and coram nobis or other postconviction remedies, and in post-trial motions or appeals in such proceedings, the trial or presiding judge or chief justice of the court in which such proceedings may be commenced or pending may appoint counsel to represent and assist those persons so charged or convicted if it appears to the court that the person charged or convicted is unable financially or otherwise to obtain the assistance of counsel and desires the assistance of counsel and it further appears that counsel is necessary in the opinion of such judge to assert or protect the right of such person.

Code 1975, § 15-12-23(a). (Emphasis added.)

In Queor v. Lee, a case arising in Alabama, the defendant filed a habeas corpus proceeding charging failure of the state court to appoint counsel to represent him on appeal from the denial of his petition for writ of error coram nobis. The Court of Appeals for the Fifth Circuit held:

Failure of the state court to appoint counsel to represent appellant on appeal on the denial of his petition was not error. Although an indigent’s right to counsel on direct appeal is well recognized, Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), this right has not been extended to postconviction proceedings.

Queor v. Lee, 382 F.2d 1017 (5th Cir.1967), at 1018.

The Fifth Circuit reaffirmed the holding of Queor in Vandenades v. United States, 523 F.2d 1220 (5th Cir.1975). After holding that Vandenades was not entitled as a matter of right to the aid of counsel in a post-conviction proceeding, the court added:

[Sjince we hold that he is entitled to a hearing on that motion, it is evident to us that the assistance of counsel would greatly benefit the district court and the appellant. However, we leave that decision to the discretion of the district court.

523 F.2d at 1226. This court concludes in light of the foregoing discussion that Cox was not entitled, as a matter of right, to the assistance of court appointed counsel in the appeal from a coram nobis decisión.

Cox next argues that, even if he did not have a right to court-appointed counsel, he has a due process interest which should allow him an extension of time for the filing of his application for rehearing where, despite his having requested appointed counsel, such counsel was not appointed until after his time for filing the application for rehearing had expired. He claims that the ease of Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), requires this conclusion. We disagree. In Torna, the Supreme Court held that the defendant was not deprived of effective assistance of counsel where his retained counsel had not made a timely filing of his application to the Florida Supreme Court for writ of certiorari. Cox, however, relies on footnote 4, included in the Court’s opinion, which states:

Respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the Florida Supreme Court for review. Such deprivation — if even implicating a due process interest — was caused by his counsel, and not by the State. Certainly, the actions of the Florida Supreme Court in dismissing an application for review that was not filed timely did not deprive respondent of due process of law.

455 U.S. 586, 588 n. 4, 102 S.Ct. 1300, 1301 n. 4, 71 L.Ed.2d 475.

Cox argues that this footnote, by implication, forces in his case the conclusion that because he had court appointed counsel who was appointed too late to apply for rehearing, he has been deprived by the state of due process. We do not find such an implication in this footnote. The obvious fallacy in Cox’s argument is that, in this case, the. failure to file a timely application for rehearing was not caused by court appointed counsel. Cox had been denied court appointed counsel by the trial court, acting in a discretionary capacity. When the time for filing application for rehearing expired, Cox was not relying on court appointed counsel to act, as he had no such counsel. Nor was he counting on the court to appoint counsel, such appointment having been denied on October 20, 1982. Since the granting or denying of court appointed counsel was discretionary with the trial judge, and since there is no evidence of abuse of that discretion, under the facts as presented here we find no denial of due process.

Cox’s final argument is that he is not required to show a constitutional violation in order to receive an extension of time to file an application for rehearing. He cites Rule 2(b) and Rule 26(b), A.R.A.P., which allow an appellate court to extend or enlarge the time requirements under the rules or to suspend the rules “for good cause shown.” However, Cox fails to note that the taking of such action by an appellate court is discretionary with that court. Rule 2(b) provides:

Suspension of Rules. In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction....

Rule 26(b), likewise, begins:

Enlargement of time. The court for good cause shown may, upon motion, enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time....

The Court of Criminal Appeals has declined to extend the time for application for rehearing, or to suspend the rule. There is no evidence of abuse of discretion. Cox claims that he was entitled to a hearing on his third coram nobis petition, where the writ was meritorious on its face. However, the trial court’s order, quoted above, stated that the petition set out no ground which “was not or should not have been contained in the earlier petition” heard by that court. On appeal, the action of the trial court was affirmed. In Walden v. State, 284 Ala. 608, 227 So.2d 122 (Ala.1969), this court held:

Where the allegations in a petition for writ of error coram nobis have been fully adjudicated and the petitioner makes no showing for the renewed consideration of the same matters by the court, it is not error to grant the State’s motion to dismiss the second petition. Allison v. State, 277 Ala. 423, 171 So.2d 239.
Even where other grounds are alleged in the second petition, this Court has held that in the absence of a petition containing cogent and compelling reasons why all the grounds relied upon were not included in the first petition for writ of error coram nobis, which has been heard and determined, this Court will not order the lower court to entertain or hear a second coram nobis petition relating to the same conviction.
In light of the earlier petition and the hearing and adverse determination thereon by the lower court, which was affirmed by this Court, the lower court is not to be put in error in granting the motion of the State to dismiss the second petition.

284 Ala. at 609; 227 So.2d at 123. See, also, Bies v. State, 418 So.2d 940 (Ala.Cr. App.1982); McLeod v. State, 415 So.2d 1232 (Ala.Cr.App.1982). Under the circumstances, we cannot conclude that the Court of Criminal Appeals has abused its discretion.

Mandamus is an extraordinary writ. It is not granted unless there is a clear showing of error to the injury of the petitioner. The petitioner’s right to relief must be clear and there must be no other adequate remedy. Ex parte Harrington Manufacturing Company, Inc., 414 So.2d 74 (Ala.1982); Ex parte Slade, 382 So.2d 1127 (Ala.1980). Mandamus will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion. State v. Cannon, 369 So.2d 32 (Ala. 1979); East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969). In the instant case, we note from the exhibits that, in addition to his direct appeal from his conviction and his three petitions for writ of error coram nobis in the state courts, Cox has filed four habeas corpus petitions in the federal courts, all of which have been denied. At least one of these federal decisions was affirmed by the Fifth Circuit Court of Appeals. It also appears that a fourth coram nobis proceeding has been filed by Cox and is now pending in state court. We commend Cox’s court appointed counsel for his vigorous efforts to render his appointment meaningful to his client. However, under the facts of this case, we find no evidence of a defect in justice causing irreparable injury, such as would make us conclude that the decision of the Court of Criminal Appeals not to grant Cox an extension of time to file his application for rehearing amounted to an abuse of discretion. Therefore, the writ of mandamus must be denied.

WRIT DENIED.

FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

      . We note that on the appeal of at least one of his prior coram nobis proceedings, Cox was represented by court appointed counsel.


author: ADAMS, Justice.

text:
    Edna L. RICHTER v. CENTRAL BANK OF ALABAMA, N.A.
    82-748.
    Supreme Court of Alabama.
    Jan. 27, 1984.
    Rehearing Denied June 1, 1984.

      James M. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    John M. Heacock, Jr. of Lanier, Shaver & Herring, Huntsville, and Jerry W. Powell, Birmingham, for appellee.
   ADAMS, Justice.

This appeal follows the circuit court’s grant of the defendant’s motions for summary judgment on the plaintiff’s claim and on the defendant's counterclaim.

The appellant/plaintiff presents two issues for our consideration:

1. May evidence excludable under the provisions of the dead man’s statute be considered to defeat a motion for summary judgment?
2. Is summary judgment appropriate under the facts of this case?

The first issue was recently answered unfavorably to plaintiff’s position asserted here in Beddingfield v. Central Bank of Alabama, 440 So.2d 1051 (Ala.1983), and we now reaffirm that holding. Our answer to the first issue foreshadows our answer to the second. Without the evidence excluded under the dead man’s statute, there is not a scintilla of evidence to support the plaintiff’s claim. The evidence in support of defendant’s counterclaim, on the other hand, is uncontroverted. The judgment of the trial court is affirmed.

Edna Richter, the appellant/plaintiff in this case, is a widow who worked as a technical writer-editor at Redstone Arsenal until she took disability retirement because of failing eyesight. She has the equivalent of a junior college education, and in addition has had job-related courses in electronics and writing. She is considered legally blind, but reads with a magnifying glass and, on occasion, drives a car.

The evidence shows that in February of 1979, Rube Brett and Mrs. Richter, who were engaged to be married, submitted a joint credit application to Central Bank of Alabama. The application sought a construction loan in the amount of $42,600.00. The loan was approved and on March 8, 1979, Brett and Mrs. Richter attended the closing of the loan and purchase of a piece of property on Orba Drive, on which they intended to build a house. Also present were the bank vice-president and loan officer, Charlie Mills, and an attorney, Raymond Uhrig. Uhrig had prepared the mortgage and title search on the property at the request of Brett, but stated in his deposition that he was not at the closing as counsel for Brett and Mrs. Richter, but merely as an observer.

After construction was begun, the loan was renewed and additional amounts borrowed. Twice during construction the house burned. The second time, the house was 90% complete when it was completely destroyed by fire. The insurance proceeds evidently discharged the balance of the debt up to this time. Then, on December 11, 1979, Brett and Mrs. Richter obtained an entirely new construction loan, and executed a new mortgage on the Orba Drive property. From time to time, they renewed this loan in larger amounts.

Mills died August 13, 1980. In November of that year Brett and Mrs. Richter borrowed an additional sum of $35,000.00. Mrs. Richter gave the bank a mortgage on her personal home as collateral for this loan, getting Uhrig to prepare the mortgage for her. Ranee Kelly handled this loan on behalf of the bank. On March 11, 1981, this loan and the ones secured by the Orba Drive property were renewed.

In late May 1981, Brett and Mrs. Richter broke off their engagement, and Brett quit-claimed his interest in the Orba Drive property to Mrs. Richter.

Mrs. Richter filed suit against the bank on August 13, 1981. In her complaint she alleged fraud and misrepresentation, a civil conspiracy to defraud, negligence and wantonness, and negligent and wanton entrustment. As the basis for her complaint, she alleged that Mills on two occasions had collected $1,000.00 from her, representing that these payments were for “closing and loan costs,” when in fact they were not. She further alleged that she had signed certain notes and mortgages on the representation by Mills that she would not be liable on said notes in case of default, but that her signature was only for the purpose of qualifying the co-signer for the loan. She claimed that Mills was at all times acting within the customary and apparent scope of his authority as an employee of the bank. In its answer the bank, in addition to denying the allegations, pleaded the statute of limitations, estoppel, and contributory negligence. It also counterclaimed on the two note renewals of March 11, 1981.

On August 20, 1982, the bank filed its motion for summary judgment on the complaint and on the counterclaim, with attached affidavits. In its order granting summary judgment, the trial court stated:

Plaintiff did not file an opposing affidavit as provided in Rule 56(e) of the Alabama Rules of Civil Procedure. However, the Court has given due consideration to all of the evidence and matters before it, including the pleadings, requests and responses to requests for production, the entire depositions of the plaintiff, Edna L. Richter, Rube Brett, Sherry Stanners, Beatrice Reagon and Raymond Uhrig, and the arguments and authorities submitted by counsel for both parties. The Court finds that there is no legally competent or admissible evidence to support an inference of a genuine issue as to any material fact to establish any of plaintiffs claims against the defendant. With respect to defendant’s counterclaim the Court finds that there is no genuine issue of fact and that the amount of principal and interest due defendant on the two promissory notes is undisputed.
Accordingly, summary judgment is hereby entered in favor of the defendant Central Bank of the South as to the claims of plaintiff Edna L. Richter against it and also on its counterclaim against plaintiff.

Summary judgment is granted in Alabama only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A.R.Civ.P., Rule 56(c); Mountain v. Collins, 430 So.2d 430 (Ala.1983). “Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence_” Rule 56(e). To defeat a motion for summary judgment, the non-moving party must present facts that are properly admissible in evidence. Ray v. Montgomery, 399 So.2d 230 (Ala.1980); Morris v. Morris, 366 So.2d 676 (Ala.1978).

Alabama’s “dead man’s statute” provides, in pertinent part:

[N]o person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness or has been taken and is on file in the case.

Code 1975, § 12-21-163.

The above statute effectively prevents Mrs. Richter from testifying as to any transaction with or statement by Charlie Mills relating to this case. Therefore, such testimony, being inadmissible at trial, may not be used to defeat a motion for summary judgment. Ray v. Montgomery, supra. See also Beddingfield v. Central Bank of Alabama, supra.

On a motion for summary judgment, all reasonable inferences from the facts are viewed most favorably to the non-moving party, and the moving party is required to establish that the other party could not recover under any discernible circumstances. Pittman v. Martin, 429 So.2d 976 (Ala.1983); Bryant v. Morley, 406 So.2d 394 (Ala.1981). Viewing the admissible evidence in the instant case in a light most favorable to Mrs. Richter, we have the following:

1. With regard to Mills’s actions at the closing, Uhrig testified at his deposition:

Q. Did Mrs. Richter inquire as to the extent of her liability, or were there some words to that effect with Mr. Mills?
A. Before signing the mortgage she asked Charlie what — you know, what she was signing away, essentially. Now, those were not her words. I don’t recall the exact words. But she was concerned as to what she was signing.
Q. Do you recall what Mr. Mills told her?
A. He told her that on the mortgage she was signing her interest in the Orba Drive property for collateral for the loan.
Q. Did he make any other representation to her about her liability to any other degree?
A. Well, she inquired whether her other two pieces of property were involved. Actually, she said her other property, and at a later date I found out that she did own at least two other pieces of property.
Q. And she asked whether or not they would be involved?
A. If they were involved or if they were in any manner tied up in this closing, and he replied that they were not, that the mortgage was only for this one piece of property, and, if I recall, it seems like I then affirmed also that this mortgage only concerned one piece of property.

The statements of Mills at the loan closing, as testified to by Uhrig, above, appear from the evidence to have been true statements at the time they were made, and not misrepresentations. Later, Uhrig testified as to a conversation he had with Mrs. Richter subsequent to the closing, and after Mills’s death:

Q. Do you remember what the nature of that conversation was relative to her having to put up more property?
A. That the bank was requiring more collateral, and that it was her understanding that she would not need to put up any more collateral when she initially signed these.

The evidence shows that when Mrs. Richter was required to furnish additional collateral, after the death of Mills, she and Brett were applying for an additional loan of $35,000.00. This transaction was handled for the bank by Ranee Kelly. There are no allegations of wrongdoing on the part of Kelly. In fact, the evidence indicates that Mrs. Richter at this point was fully aware of the extent of her obligation, but proceeded with the loan and mortgage anyway.

2. The only other transaction between Mrs. Richter and Mills which was witnessed by anyone else concerned the delivery by Mrs. Richter of $1,000.00 in cash to Mills on two occasions. Mrs. Richter’s daughter, Sherry Stanners, stated in her deposition that in December of 1979 she accompanied her mother to Mills’s office. She said her mother handed him an envelope containing $1,000.00 cash and, “[S]he said something in essence, I am not quoting, but in essence, this is the money that you needed for fees.” She said that they were there only a few minutes, and that she “didn’t pay that much attention to the conversation,” and could recall nothing specifically that her mother or Mills said.

Mrs. Stanners stated that in March of 1980 she again accompanied her mother to Mills’s office, this time in the company of Beatrice Reagon. She said that she brought her mother $800.00 which she owed her, having borrowed that amount for repair work on her car. Her mother, according to Mrs. Stanners, added to it $200.00 and placed it in an envelope. Mrs. Stanners said that when they got to Mills’s office she and Mrs. Reagon stood at the door, talking, while her mother and Mills “transacted whatever business they had.” She did not overhear any conversation on this occasion, but did see her mother hand the envelope to Mills.

Beatrice Reagon has been a friend of Mrs. Richter since 1965. In her deposition she recalled that in late March 1980, she accompanied Mrs. Richter and her daughter to Mills’s office. She did not recall to which branch of the bank they went. She did not know Mills, and did not go into the office. She and Mrs. Stanners waited outside the door. When asked if she heard any conversation, she answered:

A. Not really; I heard [Mrs. Richter] say something about here’s the money for the renewal or something — fees or something and that was about it.

She did not remember what Mills answered. “I never did pay any attention to him. It was none of my business.”

Mrs. Reagon stated that she saw Mrs. Richter hand Mills the envelope containing the money. She said there were no papers signed while they were there. There is no evidence that Mrs. Richter was given a receipt on either occasion.

The foregoing testimony, without more, is not evidence of fraud or misrepresentation by Mills, nor of any other of the allegations of the complaint. Because of Mills’s death, Mrs. Richter is barred by the dead man’s statute from offering further details or explanation of her transactions with Mills, and without them, her evidence fails.

3. As to the bank’s counterclaim, the two notes on which the bank based its claim were both executed after Mills’s death, and the admissible evidence shows that Mrs. Richter understood the extent of her obligation when she executed them. There is no allegation of any wrongdoing on the part of any bank employee in connection with these notes. There is no allegation that Mrs. Richter did not receive the benefit of the loans. Without evidence of fraud on the part of Mills which might in some way taint these loan renewals, the bank is entitled to a judgment as a matter of law.

For all the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: BEATTY, Justice. BEATTY, Justice.

text:
    Mary S. Goff GONZALES v. U-J CHEVROLET COMPANY, INC., a Corporation.
    82-1118.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    On Rehearing June 1, 1984.

      Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    Joseph C. Sullivan, Jr., and R. Gregory Watts of Butler & Sullivan, Mobile, for appellee.
   BEATTY, Justice.

Upon recommendation of the Supreme Court Advisory Committee, Rule 4(f), Alabama Rules of Civil Procedure, was amended effective March 1, 1982. Rule 4(f), as amended, provides:

“When there are multiple defendants and the summons or other document to be served and complaint has been served on one or more, but not all, of the defendants, the plaintiff may proceed to trial and judgment as to the defendant or defendants on whom process has been served and if the judgment as to defendants who have been served is final in all other respects, it shall be a final judgment. After the entry of judgment, if plaintiff is able to obtain service on a defendant not previously served, the court shall hear and determine the matter as to such defendant in the same manner as if such defendant had been originally brought into court, but such defendant shall be allowed the benefit of any payment or satisfaction which may have been made on the judgment previously entered in said action.”

The purpose of the amendment, as stated in the Committee comments, was to “harmonize [the] provisions [of 4(f) ] with those portions of Rule 54(b) which withhold finality to judgments against fewer than all parties.”

In the present case, the judgment entered on February 17, 1983, was final and appealable as of that date, because the only party not affected by that judgment had not been served. The notice of appeal was filed with this Court on August 17, 1983, well beyond the period for a timely appeal. The timeliness of an appeal is jurisdictional. We, therefore, have no alternative to dismissing this appeal.

APPEAL DISMISSED.

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

ON REHEARING

BEATTY, Justice.

On February 24, 1984, this Court dismissed the appeal by Mary S. Goff Gonzales, citing her failure to file a timely appeal. The basis for the dismissal was Rule 4(f), A.R.Civ.P. The case is now before us on application for rehearing, and plaintiff has submitted to this Court on “Order Correcting Trial Record” in which the trial court corrects the record with regard to the judgment entered on February 17, 1983. See Rule 60(a), A.R.Civ.P. This correction makes it clear that the February 17, 1983, judgment was not a disposition of all claims, and thus that there was no final appealable order at that time. Therefore, the appeal time could not have begun to run on February 17, 1983. Having shown by the corrected record that her appeal was in fact timely, plaintiff now asks this Court to address the merits of the case.

The application for rehearing is granted, and the order of dismissal previously entered is hereby set aside. This Court will now proceed to decide the case upon the merits. The plaintiff appeals from a summary judgment in favor of the defendant. We affirm.

On March 27, 1981, the plaintiff, Mary S. Goff Gonzales, went to U-J Chevrolet, Inc., the defendant, to buy an automobile. Plaintiff stated that she had intended to buy a “new” car, but the defendant did not have a “new” car which met her requirements. Instead, Mrs. Gonzales says she was shown a 1981 Chevrolet Monte Carlo, which the salesman represented to her as (1) a “demonstrator,” (2) with eight cylinders, and (3) carrying a full new car warranty. Plaintiff purchased the ear and contends that, contrary to the salesman’s representations and contrary to the sales papers she signed on March 27, 1981, the car she bought (1) was used, (2) had six cylinders, and (3) carried no warranty.

The documentation of the sale was mailed to the plaintiff on March 28, 1981, but she says she put the papers away without looking at them. In February 1982, Mrs. Gonzales went to purchase a tag for her car and was informed that back taxes were owed on a previous tag issued for the car. It was at this time, plaintiff insists, that she learned that the car she had purchased was used. She says that after reviewing the sales documents in her possession, she also found out that the car had six cylinders and did not have a warranty.

On May 10, 1982, plaintiff filed a complaint against U-J Chevrolet, Inc., alleging breach of contract and fraud in the sale of the automobile. She contends that the documents she signed on March 27, 1981, were altered before being sent to her and that the representations made by the salesman concerning the car were false.

On February 11, 1983, both parties agreed to treat the defendant’s motion to dismiss Counts I, II, and III, the fraud claims, as a motion for summary judgment. The bases of the motion were that the plaintiff failed to state a claim upon which relief could be granted and that the fraud counts were filed outside the statute of limitations. The trial court granted the motion in favor of U-J Chevrolet on February 17, 1983, with costs taxed to Mrs. Gonzales.

On February 22, 1983, plaintiff filed a motion to alter, amend, or vacate the judgment, pursuant to Rule 59(e), A.R.Civ.P., and also filed an amended complaint naming Carl Sharitt, the salesman, as an additional defendant. A second amended complaint was filed on May 9, 1983, striking any claims against defendant Carl Sharitt. The trial court again considered U-J Chevrolet’s motion to dismiss as to the amended complaint and treated it as a motion for summary judgment. Judgment was entered on August 9, 1983, in favor of the defendant on the fraud counts. The judgment was made final pursuant to Rule 54(b), A.R.Civ.P., and Mrs. Gonzales appealed.

The only issue for review is whether the trial court properly entered summary judgment on plaintiff’s fraud counts in this case. The “Order Correcting Trial Record” of February 28, 1984, states that “[t]he sole ground for the dismissal of Plaintiff’s fraud claims contained in Counts One, Two, and Three of the complaint was the one year statute of limitations.”

As the facts indicate, plaintiff purchased her car on March 27, 1981, and filed the present lawsuit on May 10, 1982, some thirteen months later. The statute of limitations for fraud actions is one year. Code of 1975, § 6-2-39. Therefore, plaintiff’s fraud counts can stand only if they come within the saving provision in § 6-2-3, which states:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.”

In interpreting this section, this Court has consistently held that facts constituting fraud are deemed discovered when they should have been discovered. Retail, Wholesale & Dept. Store Employees Union v. McGriff, 398 So.2d 249 (Ala.1981); Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979). The documentation representing the sale was mailed to plaintiff the day after the purchase was made and remained in her possession. It is clear on the face of these documents that the car Mrs. Gonzales purchased was a used, six cylinder, 1981 Monte Carlo.

Fraud is deemed to have been discovered when the person either actually discovered, or when the person ought to or should have discovered, facts which would provoke inquiry by a person of ordinary prudence, and, by simple investigation of the facts, the fraud would have been discovered. Papastefan v. B & L Construction Co., 385 So.2d 966 (Ala.1980); Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So.2d 636 (1973). Further, if the facts regarding the discovery issue are un-controverted and show that the discovery occurred more than one year prior to the bringing of the suit, summary judgment is proper. Moulder v. Chambers, 390 So.2d 1044 (Ala.1980). The record shows that Mrs. Gonzales read and signed the sales documents the day she purchased the car. These documents, which were before the trial court, clearly show that the car was used and that a previous tag had been issued to the car — further evidence which indicated that the car was used. She had these documents in her possession shortly after the sale. This Court in McGriff supra, held that a retired employed's cause of action for fraud first accrued when the employee received correspondence from his union indicating that a pension would be denied. The date the correspondence was received was the date the fraud was or should have been discovered.

In the present case, Mrs. Gonzales should have been on notice of any misrepresentations or fraud in the sale of the car when she received the documentation for the sale. The commencement of her action with regard to the fraud counts was beyond the applicable one-year limitations period. For the reasons stated, the grant of summary judgment by the trial court is due to be, and it hereby is, affirmed.

REHEARING GRANTED; DISMISSAL SET ASIDE; AFFIRMED.

TORBERT, C.J., and MADDOX and SHORES, JJ., concur.

JONES, J., concurs in the result.


text:
    TRUST COMPANY BANK v. David G. BRONNER, Secretary-Treasurer of the Teachers Retirement System of Alabama, et al.
    84-466.
    Supreme Court of Alabama.
    March 9, 1984.
    Rehearing Denied June 1, 1984.

      James A. Byram, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
    William T. Stephens, Montgomery, for appellees.
   ADAMS, Justice.

This is the second appeal of this case to this court. The Teachers’ Retirement System (TRS), and others, filed suit against Trust Company Bank for breach of warranty of good title under Code 1975, § 7-4-207, for paying certain State of Alabama warrants over the forged endorsements of the payee. On the first appeal this court reversed a summary judgment for TRS, and remanded for a trial on the merits. Trust Company Bank v. State, 420 So.2d 10 (Ala.1982).

The following facts are included to supplement the statement of facts in our earlier opinion in this case:

On July 7, 1975, TRS received a claim from Lewis Williams for any accumulated contributions due to the estate of his mother, who was a deceased teacher. TRS advised Lewis Williams that his mother’s surviving spouse would be due any accumulated contributions, or, if there was no surviving spouse, the contributions must be paid to the administrator of her estate. TRS also requested the death certificates of Mrs. Williams and her husband, if deceased.

In August 1975, Lewis Williams’s brother, who was the administrator of Dorothy Williams’s estate, advised TRS to send to him the necessary documents regarding his mother’s benefits. TRS responded in the same manner as it had responded to Lewis Williams, including the request for death certificates on both Mr. and Mrs. Williams. By letter dated March 26, 1976, Lewis Williams’s brother, in accordance with the request of TRS, provided TRS with the necessary forms, including death certificates for both Jacob T. Williams and Dorothy Williams, both of whom, according to the death certificates, had resided at 804 North Eighth Street, Gadsden, Alabama.

This appeal is taken by Trust Company Bank from the trial court’s judgment in favor of TRS for $23,458.00 plus interest. This amount represents satisfaction of the claims made by TRS for those warrants that were collected by Trust Company Bank within six years prior to the filing of this lawsuit.

Having conceded that it had breached its statutory warranty in paying the warrants over the forged endorsements of the payee, Trust Company Bank asserted that TRS: (1) failed to make a claim for breach of warranty after it knew or should have known of the breach, and (2) was negligent in issuing warrants after it knew or should have known of Jacob T. Williams’s death. In our prior opinion, we concluded that there were triable issues of fact as to these contentions, id., at 14; on remand, the trial court resolved these issues in favor of TRS. Having carefully reviewed the record of this case, we believe that the lower court’s resolution of these issues was not clearly erroneous or palpably unjust, and, therefore, its judgment is due to be affirmed.

The court below concluded that TRS neither knew nor should have known of Trust Company Bank’s breach of warranty prior to being notified of Jacob T. Williams’s death by the Gadsden superintendent of schools shortly after October 1, 1980. Though the bank has argued persuasively that TRS should have been alerted to Jacob T. Williams’s death upon its receipt of either the unsigned letter requesting the change of address or his death certificate in connection with his wife’s benefits, we believe there was credible evidence from which the trial court could reasonably conclude otherwise. Notably, Jacob T. Williams had sent other unsigned letters to TRS, and, according to TRS, he was one of 10,000 people with the last name Williams for whom TRS had a file.

Next, we consider Trust Company Bank’s claim that negligence on the part of TRS precludes it from recovering for the breach of warranty. Initially, we reject the trial court’s conclusion that Trust Company Bank is estopped from asserting negligence on the part of TRS as a result of collecting the checks at issue without obtaining the endorsement of the depositor-forger. Trust Company Bank’s acceptance of the checks without its customer’s endorsement, though at variance with the written policy of the bank, was in accordance with Code 1975, § 7-4-205(1), and, therefore, within reasonable commercial standards.

The trial court found that Trust Company Bank did not meet its burden of proof under Code 1975, § 7-3-406, as to negligence by TRS in issuing the cheeks in question. In reviewing this determination, we are mindful that the issue of negligence under § 7-3-406 is properly “left to the court or the jury upon the circumstances of the particular cases.” Code 1975, § 7-3-406, Comment 3; J. Gordon Neely Enterprises, Inc. v. American National Bank, 403 So.2d 887, 891 (Ala.1981). We think the trial court reasonably could have concluded that the actions of TRS with respect to the checks issued to Jacob T. Williams constituted “mere laxity in the conduct of business affairs,” which is insufficient to preclude recovery on the claims for Trust Company Bank’s breach of warranty. East Gadsden Bank v. First City National Bank of Gadsden, 50 Ala.App. 576, 582, 281 So.2d 431 (1973).

For all the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Dorothy Williams, the wife of Jacob T. Williams, was also a teacher. She died on April 27, 1973.


author: BEATTY, Justice.

text:
    William R. HAMNER and Rose Lee B. Hamner v. ROCK MOUNTAIN LAKE, INC., Neal Hemphill and Betty Hemphill.
    82-937.
    Supreme Court of Alabama.
    March 23, 1984.
    Rehearing Denied May 25, 1984.

      R. David McDowell, Bessemer, for appellants.
    Robert E. Paden and R. Shan Paden, Bessemer, for appellee Rock Mountain Lake, Inc.
    Thomas H. Jackson, Bessemer, for appel-lees Neal Hemphill and Betty Hemphill.
   BEATTY, Justice.

Appeal by plaintiffs from a final decree denying plaintiffs specific performance of a lease-sale contract for the purchase of land. We affirm.

The lease-sale agreement was executed between the Hamners and Rock Mountain Lake, Inc. The Hamners agreed to pay to Rock Mountain Lake $6,032.41 in consideration for lot four of the Griffin Lake Subdivision, Sixth Addition. The payments were to be made as rent, with the appellants paying $50.00 a month at a rate of 6% interest for a period of 10 years, at which time the full amount of the purchase price would have been paid. At that time, Rock Mountain Lake would execute a warranty deed conveying the property to the Ham-ners if the Hamners met all of the conditions set forth in the body of the lease-sale agreement.

The pertinent provisions are set forth as follows:

“And should the party of the second part fail to pay the rents as they become due, as aforesaid, or violate any other notice of this Lease, the said party of the first part shall then have the right, at their option, to reenter the premises and annul this Lease. And in order to entitle the party of the first part to re-enter, it shall not be necessary to give notice of the rents being due and unpaid, or to make any demand for the same, the execution of this Lease signed by the said parties of the first and second part, which execution is hereby acknowledged, being sufficient notice of the rents being due and the demand for the same, and shall be so construed any law, usage or custom to the contrary notwithstanding....”
“It is further understood and agreed that if the party of the second part [plaintiffs] fails to pay the monthly rent as it becomes due; and becomes as much as two months in arrears during the first year of the existence of this lease, or as much as three months in arrears on such payments at any time thereafter, or should fail to pay the taxes on the said property when the same become due, or should fail to comply with any condition or requirement herein, then on the happening of any such event ... the party of the second part forfeits his rights to a conveyance of said property, and all money paid by the party of the second part under this contract shall be taken and held as payment of rent for said property, and the party of the second part shall be liable to the party of the first part [defendant, Rock Mountain Lake, Inc.] as a tenant for the full term of said lease, and the provisions herein ‘that the rent paid under this lease shall be considered a payment for said property, and the party of the first part shall make and execute a deed with a warranty of title conveying said property to the party of the second part,’ shall be [a] nullity and of no force or effect; and failure of the party of the second part to comply with any of the conditions of this instrument shall ipso factor render the said provision a nullity, and make the said party of the second part a lessee under this instrument, without any rights whatever except the rights of lessee without any notice or action whatever upon the part of the party of the first part.”

The Hamners went into possession of the property, using it as an extension of the lot on which their residence was located (lot three), until November 8, 1982, at which time Rock Mountain Lake conveyed the property to appellees Neal and Betty Hemphill, for $20,000.00. During the period of their possession, the Hamners fell in arrears on several occasions. The record discloses that from the time the appellants took possession of the lot until March 24, 1979, they were late in making payments six times. At one point, the Hamners were in arrears as much as seven months. Following the payment on March 24, 1979, the Hamners made no further payments until they tendered the balance of $5,953.00 into court on November 10, 1982, two days after the property was deeded to Neal and Betty Hemphill, co-defendants.

The total amount of consideration paid by the appellants prior to the sale to the Hemphills was approximately $2,800.00. This amount was paid over a period of nine years. Of that amount, $79.00 represents the principal with the remainder representing the interest.

Following the sale of lot four to the Hemphills, plaintiffs initiated this suit for specific performance of the lease-sale agreement. The defendants filed motions to dismiss the complaint on the grounds that the plaintiffs failed to adhere to the conditions of the agreement and that they failed to state a claim upon which relief could be granted. The complaint was later amended to allege that the Hamners had met the conditions of the contract, that the defendants tendered no notice that strict compliance with the contract was required, and that the plaintiffs were the true and lawful owners of the property.

All defendants filed motions for bond and renewed motions to dismiss, which were denied. The defendants then filed their answers to the complaint, with Neal and Betty Hemphill adding a counterclaim against the Hamners for harassment and willful and wanton conduct.

The case was tried without a jury. At the conclusion of the plaintiffs’ evidence, the trial judge granted a judgment for defendants. This appeal ensued.

Plaintiffs contend that the trial court erred in granting judgment for the defendants. This argument is that defendant Rock Mountain Lake “lulled” them into the belief that late payments were satisfactory by accepting them, and that, furthermore, no notice of a contrary position was ever given to them, resulting in a waiver of the contract’s forfeiture provisions. To allow Rock Mountain Lake to enforce the contract against them under such circumstances, it is argued, would amount to enforcing a forfeiture “without notice to the lessee that strict compliance [would] be required,” citing Murray v. Webster, 256 Ala. 248, 54 So.2d 505 (1951), and Eurton v. Smith, 357 So.2d 324 (Ala. 1978).

Of course, whether there was a waiver of strict compliance is a question of fact, the burden of proof resting upon the party relying upon waiver. Davis v. Folmar, 203 Ala. 336, 83 So. 60 (1919). And it is also well established that the mere acceptance of payments in default under a lease-sale contract does not waive future defaults of the same nature. Rogers v. Newton, 340 So.2d 768 (Ala.1976). To adopt such a rule “would penalize the goodhearted vendor for allowing a defaulting vendee to make up his previous defaults.” Ibid, at 769.

The record discloses that the plaintiffs did miss a number of payments from the inception of the lease on September 3,1974, to March 24, 1979. However, as of March 24, 1979, the plaintiffs were current on their payments. Notwithstanding their current status, after March 24, 1979, plaintiffs did not offer'to make any payments as the contract required, that is, none for the three and one-half years after March 24, 1979. Only at the time of the filing of this suit did plaintiffs tender $5,953.00 to the circuit court as payment under the contract. In fact, it was only after a “For Sale” sign had been posted on lot three that the plaintiffs showed any interest in performing the remaining obligation under their agreement.

In that connection, it appears that after Mr. Hamner noticed the “For Sale” sign on lot four, he contacted a representative of Rock Mountain Lake, Mr. Coleman, to inquire about it, and was referred to Elbert Buckelew, another Rock Mountain Lake representative. According to Hamner, Buckelew contacted Hamner about two weeks later and “the best I remember he said they would settle on $11,000.” Ham-ner replied that he would get back in touch with Buckelew sometime later. But when contact was made about two weeks later, Hamner said, Buckelew told him, “[H]e thought I was too late, that he thought Mr. Coleman had a contract to sell the lot to someone else [the Hemphills].”

This evidence is to be considered, of course, with other evidence showing that the portion of the contract dealing with the necessity for notice was understood by plaintiffs, who failed to act with knowledge of the consequences.

The cases cited by plaintiffs in support of their position are distinguishable from the instant case. In Eurton v. Smith, supra, this Court agreed with the trial court that the vendor-lessor, under the facts of that case, had waived strict performance and had accepted substantial performance in the form of payments of money, so that it would have been inequitable to allow forfeiture. In Hawkins v. Coston, 214 Ala. 135, 107 So. 50 (1926), the vendee-lessee had made 52 of the required 55 payments on his lease-sale, although certain annual sums for taxes and insurance had not been paid by the vendee-lessee. In reversing the trial court’s order dismissing the complaint for specific performance, this Court observed, at 214 Ala. 139, 107 So. at 53:

“It would be inequitable for one party to a contract to lull the other party to sleep by numerous waivers of the provisions of the contract, and then, after the property had been practically paid for, change his position and insist on the forfeiture and retake the property.”

As we have shown, the circumstances here differ from the facts of either of those cases.

The authorities establish that forfeiture provisions in lease-sale agreements are not favored, but they will be upheld, nevertheless, when the lessee-vendee has actual or constructive notice that strict compliance is necessary. In making these decisions, courts determine whether the vendee had notice of the requirement of strict compliance and whether vendee had substantially performed his part of the agreement. E.g., Eurton v. Smith, supra. Waiver of strict compliance is a question of fact. Murray v. Webster, supra.

Under the evidence in this case the trial court, sitting without a jury, could have found that no waiver of strict compliance of the agreement was made by defendant Rock Mountain Lake. Those findings are not to be disturbed unless clearly erroneous, Moore v. Lovelace, 413 So.2d 1100 (Ala.1982), which is not the .case here. It follows that the decree of the trial court granting the motion of Rock Mountain Lake, Inc., for a directed verdict and granting judgment for the defendants on plaintiffs’ complaint must be, and it is, affirmed.

AFFIRMED.

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

      . Thus, we need not discuss the issue of plaintiffs' delay (laches), which was also found by the trial court to bar relief for the plaintiffs. Pan American Fire & Casualty Co. v. DeKalb-Cherokee Counties Gas Dist., 289 Ala. 206, 266 So.2d 763 (1972).