author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Roswell C. DOWNER, Appellant.
    No. 16788-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      William J. Guste, Jr., Atty. Gen., New Orleans, Henry N. Brown, Jr., Dist. Atty., Bobby L. Stromile, Asst. Dist. Atty., Benton, for appellee.
    Arceneaux & Bookter by M. Thomas Ar-ceneaux, Shreveport, for appellant.
    Before MARVIN, FRED W. JONES, Jr., and NORRIS, JJ.
   NORRIS, Judge.

Applicant, Roswell C. Downer, was charged with first-offense DWI, a violation of LSA-R.S. 14:98. The alleged offense took place on June 16, 1984. Before trial, applicant moved to suppress the results of a photoelectric intoximeter (PEI) test. When the district judge denied this motion, applicant changed his plea to guilty, reserving his right of appellate review under State v. Crosby, 338 So.2d 584 (La.1976). We granted writs to review applicant’s two assignments of error. Finding his second assignment to have merit, we grant his motion to suppress, vacate the guilty plea, reverse his conviction and remand the case.

FACTS

On the date of his arrest, Downer was driving on Hwy. 80 in Bossier Parish at about 10:30 p.m. Hwy. 80 is a four-lane thoroughfare with two traffic lanes each way and a median. State Trooper Archie Griffin spotted Downer’s car and noticed some erratic movement on its part. Proceeding in the left lane, it had drifted across the center line and then suddenly jerked back into the left lane. Moments later, the vehicle repeated this motion. Alerted by this conduct, Griffin turned on his patrol car’s brights and flashers in an attempt to pull Downer over. When this method failed, Griffin turned on his siren, which seemed to attract Downer’s attention. Downer made a “wide” left turn onto Country Place Blvd., drove two blocks, and finally stopped. When Downer got out of his car, Griffin noticed a look of unsteadiness in his movement and a smell of alcohol on his breath. Griffin administered two field sobriety tests and Downer failed both. Griffin then placed him under arrest and advised him of his constitutional rights.

At the station, Griffin prepared Downer to take the PEI test. He showed him a standard form, DPSOS 4615, and “read the form completely from the beginning to the end” to applicant. Downer said he understood it and signed it. Griffin’s oral warnings were confined to repeating those on the printed form; no others were given. R.p. 13-14. The form contained the following warnings: “Evidence of your refusal to submit to this chemical test or test results of .10 percent or above will be used against you in court ... If you submit to the test, and the test results show a blood alcohol level of .10 percent or above, your driver’s license shall be suspended for a minimum period of three (3) months.”

Downer claims, and Griffin admits on cross-examination, that no one ever told him that a reading of .10 percent or above would create a presumption of intoxication under the DWI statute. Downer signed the form, took the test, and made a score of .103 percent. The district judge denied his motion to suppress the test results.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, applicant contends that Officer Griffin did not have probable cause to make the warrant-less stop that led to his arrest. Probable cause exists when the facts and circumstances, known to the arresting officer and based on reasonable and trustworthy information, are sufficient to justify a person of average caution in the belief that the suspect has committed or is committing a crime. State v. Elliot, 407 So.2d 659 (La.1981); State v. Hathaway, 411 So.2d 1074 (La.1982), and numerous other authorities. Probable cause for arrest is satisfied by a lesser standard than that required for conviction. State v. Winfrey, 359 So.2d 73 (La.1978); State v. Foster, 437 So.2d 309 (La.App. 2d Cir.1983). The state must nevertheless prove admissibility of any evidence seized without a warrant. LSA-C. Cr.P. Art. 703 D.

Applicant argues that the conduct for which he was stopped was not sufficient to support a finding of probable cause. He relies only on the general provisions of the fourth and fourteenth amendments, U.S.C. A.-Const. Amds. 4,14, and one recent third-circuit case, State v. Vaughn, 448 So.2d 915 (La.App. 3d Cir.1984). In Vaughn, the court’s -per curiam opinion summarized defendant’s conduct thus:

It is the opinion of this Court that the defendant’s actions crossing six inches over the center line and traveling thus for approximately ten feet, even when coupled with the observation of a vehicle swaying within its own lane, does [sic] not per se present sufficient facts to establish the requisite reasonable cause which is necessary before a police officer may legally stop a motorist; particularly so, when the police officer followed the defendant for only one and one-half blocks, and further, when derfendant’s driving presented no evidence of danger to himself or to others. 448 So.2d at 916.

We do not agree that applicant’s conduct was as minor as “crossing six inches over the center line ... for approximately ten feet.” Officer Griffin testified crossed the line not once, but twice. R.p. 7. He observed this between Louisiana Downs and Bellevue Road and, although the exact distance is not shown in the record, Griffin said applicant was “very inattentive” and drove two blocks down a side street before stopping. In the process, applicant made a “wide left turn.”

We find that all these facts, taken together with the circumstances of a late Saturday night by a racetrack, fully support a finding of probable cause. See State v. Strange, 334 So.2d 182 (La.1976); State v. Cichirillo, 440 So.2d 934 (La.App. 2d Cir.1983). This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, applicant claims Griffin failed to follow the procedure prescribed in LSA-R.S. 32:661, the “implied consent” statute, for the administration of blood alcohol tests and that this failure rendered the test results inadmissible. Subsection 661 C(l) provides:

When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal and the consequences if the test if conducted and the results indicate a blood alcohol concentration of .10 percent or above by weight of blood. In addition, the law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test. However, a single combination of the two forms may be used.
If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. (Emphasized portion was added by LSA-Acts 1983, No. 632, § 1.)

Subsection 661 C(2) further provides that if the prescribed procedure is not complied with, the results of the test will be inadmissible.

The DWI statute, LSA-R.S. 14:98, as amended by LSA-Acts 1983, No. 634, § 1, provides in pertinent part:

The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when:
(1) The operator is under the influence of alcoholic beverages; or
(2) The operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters or blood; ...

The logic of applicant’s argument is clear. The legislature in R.S. 32:661 C(l) has mandated that the officer inform the accused of the consequences if the test is conducted and the results show a blood alcohol concentration of .10 percent or above by weight of blood. R.S. 14:98 A(2) establishes an irrebuttable presumption of intoxication if the blood alcohol level is .10 percent or more. Thus, if an accused submits to a chemical test which is properly administered in accordance with law, and if the test results show a blood alcohol content of .10 percent or more, then the test results are admissible in evidence at a criminal trial and will conclusively prove the element of intoxication. This irrebuttable presumption of intoxication, therefore, is the most significant consequence of which an accused must be informed. Officer Griffin, by his own admission, did not orally inform applicant of this consequence; nor did the standard form describe this consequence. The clear language of the legislature, therefore, makes the results of the chemical test, or any reference to the chemical test, inadmissible against the applicant in this criminal action. R.S. 32:661C(2).

We note that the standard form or forms referred to in R.S. 32:661 C(l) do not have to inform a person of the consequences of submission to the chemical test where the results show a blood alcohol concentration of .10 percent or above. The form or forms need only advise a person of his constitutional rights and of the consequences of refusal to submit to a chemical test. An oral warning of the consequences of submission would have been adequate in the instant case.

Our conclusion is fortified by the following legal circumstances. The implied consent statute was amended in 1983. Until then, it had required the arresting officer to advise the accused only of the consequences of refusal to take the test. The amendment, effective January 1, 1984, specifically adds the requirement of a warning about the consequences of submission to the test which results in a finding of blood alcohol concentration of .10 percent or greater. The clarity of this new requirement shows a clear legislative intent to impose a stricter duty on law enforcement officers than existed before. This stricter duty is in accord with, and obviously prompted by, the correlative amendment to R.S. 14:98, also effective January 1, 1984, which makes blood alcohol concentration of .10 percent a conclusive presumption of intoxication.

The amendment to R.S. 32:661 C(l) legislatively overrules the recent decision of State v. Spence, 418 So.2d 583 (La.1982). In Spence, the defendant attempted to argue that he was entitled to a warning about the consequences of submission, under the statute before the 1983 amendments. The supreme court said that such a warning was neither required by the statute nor compelled by the constitution. The legislature has since added that very provision to the statute, with plain clarity of purpose, and Spence can no longer be considered to control.

Finally, applicant correctly points out that this state’s jurisprudence requires strict, painstaking compliance with the rules pertaining to blood-alcohol testing devices. See, for example, State v. Graham, 360 So.2d 853 (La.1978), State v. Jones, 316 So.2d 100 (La.1975), and numerous other cases. While these cases appertain to equipment maintenance and are therefore not entirely apposite, they are expressive of the general rule that criminal statutes must be strictly construed in favor of the defendant. LSA-R.S. 14:3; State v. Young, 357 So.2d 503 (La.1978).

We are sensitive to other authorities that might support affirmance. The case of State v. Clark, 446 So.2d 293 (La.1984), not cited in the state’s memorandum, held that “substantial compliance” with R.S. 32:661 will support a conviction. Other cases have reached a similar result, such as State v. Sims, 426 So.2d 148 (La.1983); Dabney v. Dept. of Public Safety, 298 So.2d 295 (La.App. 1st Cir.1974), writ denied 302 So.2d 25 (La. 1974); Kolb v. State Dept. of Public Safety, 299 So.2d 877 (La. App. 4th Cir.1974). We do not agree that there was “substantial compliance” with R.S. 32:661 in the present case. The omitted warning is not only legislatively mandated but describes a very substantial consequence. It could induce a reasonable person to give up his license for six months, in hopes of acquittal, rather than give up his presumption of innocence, for the certainty of conviction.

For the reasons expressed, we reverse the lower court’s ruling and grant the motion to suppress. The chemical test is inadmissible. We accordingly vacate applicant's guilty plea and reverse his conviction. Since, however, there is other evidence from which the state may attempt to prove its case, we remand this matter for further proceedings consistent with this decision.

MOTION TO SUPPRESS GRANTED; GUILTY PLEA VACATED; CONVICTION REVERSED, CASE REMANDED.

      . LSA-R.S. 32:667 B(l), as amended by LSA-Acts 1983, No. 632, § 1. If the accused refuses the test, he faces a suspension of six months. LSA-R.S. 32:667 B(2).

      . Our brethren on the Fourth Circuit have reached the same conclusion in the recent case of State v. Singer, 457 So.2d 690 (La.App. 4th Cir.1984).


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. John A. PHINNEY, Appellant.
    No. 16878-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Robert L. Raley, Bossier City, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouehe, Dist. Atty., Gary M. Parker and John Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

We granted Phinney’s application for a writ to review the sufficiency of the circumstantial evidence on which he was convicted of DWI second offense in a judge trial. LRS 14:98, 15:438.

Test results, which were stipulated, showed Phinney’s blood alcohol content to be .223 grams percent shortly after he was arrested about 2:30 a.m. The issue is not whether Phinney was drunk at the time, but whether the total circumstances exclude any reasonable hypothesis that someone other than Phinney could have operated the vehicle to achieve the position in which it was found by police. See and compare City of Bastrop v. Paxton, 457 So.2d 168 (La.App. 2d Cir.1984); State of La. v. Sims, 426 So.2d 148 (La.1983); State of La. v. Phillips, 389 So.2d 1260 (La.1980); State of La. v. Lindinger, 357 So.2d 500 (La.1978); and State of La. v. Rutan, 448 So.2d 267 (La.App. 3d Cir.1984).

Only one witness, a Shreveport policeman, testified. He said he was called to the scene of a one car accident in a residential area about 2:20 a.m. on October 27, 1983. He said the vehicle had obviously crashed into a fence, was upside down with its windshield broken, 10-30 feet off the street, and severely damaged. Skid marks extended from the curb about 100 feet into the street. Phinney was the only person standing near the vehicle, he was incoherent, and appeared to be drunk. Other persons were standing some distance away. The policeman checked the registration of the vehicle and learned that it was registered “to a John C. Phinney.” Defendant’s name is John A. Phinney and it is not shown whether defendant and John C. Phinney are the same or are related.

Another officer conducted a field sobriety test, which was not witnessed by the policeman who testified. The officer also testified that he asked Phinney for his driver’s license, “observed [that] ... he wasn’t able to relate anything ... and notified the DWI officer.” He did not look for any alcoholic beverage containers in the vehicle. He said he didn’t see any containers on Phinney and, perhaps because the State so stipulated, was not asked whether Phinney made any explanation or admission to him or the other policeman.

There are circumstances which exclude every reasonable hypothesis of innocence in a DWI case and from which it may be reasonably concluded that a particular defendant had been driving a particular automobile. See Louisiana cases cited supra. The result in each case, of course, is governed by its own circumstances. City of Bastrop v. Paxton, supra.

Under the circumstances of this record, we could deduce or hypothesize that Phin-ney was operating the vehicle while drunk only moments before the police arrived. We cannot, however, exclude other deductions or hypotheses which would also be as reasonable and as supported by the evidence or lack of evidence in this record. LRS 15:438. See Lindinger, supra; State v. Captrille, 448 So.2d 676 (La.1984).

We do not know whether the policemen asked for, or whether Phinney gave, or refused to give, “an explanation of his actions” and his presence at the scene. CCrP Art. 215.1.

We do not know how long the vehicle had been in the position in which the officer found it. We do not know whether Phin-ney was related to the person in whose name the vehicle was registered. We do not know whether or when Phinney or others may have occupied the vehicle, as a driver or as passengers on October 26-27, 1983. We do not know why Phinney was standing nearest the van when the police arrived. We do not know whether Phinney was incoherent because he was either or both injured in the wreck and drunk. We do not know how or when Phinney reached the scene or whether, after arriving there, he consumed any quantity of alcohol.

The circumstantial evidence simply does not exclude or negate every reasonable hypothesis of innocence as the law requires. LRS 15:438; Lindinger, supra. With so much lacking in this record, we must conclude that the State failed to meet its burden of proving beyond a reasonable doubt and to the exclusion of other reasonable hypotheses of innocence that Phinney had operated the vehicle in question while intoxicated. LRS 15:271.

Defendant-applicant’s conviction and sentence are therefore reversed and set aside.


author: SCHOTT, Judge. PER CURIAM.

text:
    CITY OF NEW ORLEANS v. Frank RUSSO, Alma Camp Russo and John Russo.
    No. CA 2985.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 1984.
    Rehearing Denied Jan. 7, 1985.
    Writ Denied March 15,1985.
    Salvador Anzelmo, City Atty., Michael Laughlin, Asst. City Atty., New Orleans, for plaintiff-appellee.
    Brian M. Begue, New Orleans, for defendants-appellants.
    Before SCHOTT, BYRNES and WILLIAMS, JJ.
   SCHOTT, Judge.

Ex proprio molu we questioned jurisdiction over this appeal taken by defendant on July 19, 1984 from a judgment granting a preliminary injunction on June 15. Such an appeal must be taken within fifteen days from the date of the judgment. LSA-C. C.P. Art. 3612.

That plaintiff moved for a new trial on June 22 did not have the effect of extending his time to take the appeal. Cuccia v. Bozeman, 316 So.2d 800 (La.App. 4th Cir. 1975); May v. Jackson Brewing Co., Inc., 275 So.2d 201 (La.App. 4th Cir.1973).

Accordingly, this appeal is dismissed.

APPEAL DISMISSED.

ON REHEARING

PER CURIAM.

The record does not support appellants’ argument that the judgment appealed from involved a permanent injunction. The trial was scheduled by a rule to show cause why a preliminary injunction should not issue, and the judgment specifically orders that a preliminary injunction issue. There was no stipulation that the trial of the rule would amount to a trial on the merits of a permanent injunction.

Brickman v. Board, 363 So.2d 86 (La.App. 4th Cir.1978) is inapposite. This was an appeal from a judgment which dismissed plaintiffs petition for a permanent injunction as well as a preliminary injunction. The judgment now under consideration is one relating only to a preliminary injunction and is therefore governed by C.C.P. Art. 3612.

REHEARING DENIED.


author: EDWARDS, Judge.

text:
    UNIVERSITY OF NEW ORLEANS v. Leopold PEPITUNE.
    No. 83-CA-1171.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984;
    Writ Denied March 8,1985.

      Rutledge C. Clement, Jr. and C. Scott Jackson, New Orleans, for plaintiff-appellant.
    Max Zelden, New Orleans, for defendant-appellee.
    Robert R. Boland, Jr., Civil Service Comm., Baton Rouge, Civil Service Legal Counsel.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Leopold Pepitune was employed as a foreman in the Department of Operation and Maintenance of the University of New Orleans. On February 25, 1981, he was dismissed for carrying a concealed weapon on campus, intimidating his fellow employees, and being intoxicated while on the job. He appealed to the State Civil Service Commission, and a public hearing was held before a referee. The referee granted the appeal and ordered the reinstatement of Mr. Pepitune with full back pay. The University appealed to the State Civil Service Commission, and the Commission affirmed, adopting the referee’s decision. From the Commission’s decision, the University appeals. We affirm.

By letter dated February 25, 1981, the University notified Mr. Pepitune that he was being removed from his position for the following reasons.

During the week of February 16, 1981 and on several other occasions you have been carrying a concealed weapon (a pistol) on campus. This is a violation of state law.
During the week of February 16, 1981, and on other occasions at work, you displayed the pistol, intimidating some of your employees. This constitutes disorderly, disrespectful, and notoriously disgraceful conduct, all of which are violations of University regulations.
On several occasions you have been under the influence of intoxicants while at work. This also is a violation of University regulations.

Because of the University’s failure to specify the dates upon which the alleged misconduct occurred, the referee summarily dismissed the charge of being under the influence of intoxicants while on duty, and limited evidence on the concealed weapon and intimidation charges to that occurring during the week of February 16, 1981.

The University presented five witnesses, who testified that they had seen Mr. Pepi-tune carrying a gun on campus. The referee found, however, that the witnesses did not establish that any one of them saw Mr. Pepitune with a gun on campus during the week of February 16, 1981, and therefore she concluded that the University had failed to bear its burden of proving legal cause for Mr. Pepitune’s dismissal.

Civil Service Commission decisions are subject to review on both questions of law and fact. La.Const. art. X § 12. The standard of review is whether the decision is arbitrary, capricious, or manifestly wrong. Ferguson v. Department of Health and Human Resources, 451 So.2d 165, 168 (La.App. 1st Cir.1984); Wollerson v. Department of Agriculture, 436 So.2d 1241, 1244 (La.App. 1st Cir.), cert. denied, 441 So.2d 1221, 1222 (La.1983). After an independent review of the record we conclude that the referee’s decision as adopted by the Commission is not arbitrary, capricious, or manifestly wrong.

The referee was correct in dismissing the intoxication charge and limiting the evidence on the other two charges to that occurring during the week of February 16, 1981, as specified in the letter. Civil Service Rule 12.3 requires the appointing authority to furnish the employee with detailed written reasons for removal or other disciplinary action. This rule “plainly comprehends a fair and clear statement of the misconduct of the employee including, whenever pertinent, times, dates, places and amounts.” Hays v. Louisiana Wildlife and Fisheries Commission, 243 La. 278, 143 So.2d 71, 74 (1962); Department of Public Safety v. Rigby, 401 So.2d 1017, 1021 (La.App. 1st Cir.), cert. denied, 406 So.2d 626 (La.1981). “The purpose of this rule is to apprise the employee in detail of the charges and to limit any subsequent proceedings to the stated reasons. “Rigby, 401 So.2d at 1021 (citations omitted). In the Rigby case the defendant was charged by the appointing authority with accompanying a convicted felon on a gambling junket to Las Vegas June 10, 1977 through June 13, 1977. Evidence of a trip to Las Vegas with the convicted felon in July of 1977 was inadmissable. Moreover, general charges of’ “socializing with [the convicted felon] on numerous occasions” were dismissed for failure to specify dates, times, or places. Id.

As to the charges of carrying a concealed weapon and intimidating employees during the week of February 16, the burden of proof of the facts is on the appointing authority. La.Const. art. X § 8(A). After a lengthy hearing the referee concluded that the University had not carried that burden, and we cannot say that decision is arbitrary, capricious, or manifestly wrong.

Accordingly, we affirm.

AFFIRMED.


text:
    Quitman CASTLEBERRY v. Raymond GOLDEN, Administrator of Estate of Wes Golden, Deceased.
    No. 54910.
    Supreme Court of Mississippi.
    May 30, 1984.
    Michael G. Thorne, Moffett & Thorne, Tupelo, for appellant.
    William L. Sneed, Mauldin & Sneed, Pon-totoc, for appellee.
   Appeal from Chancery Court, Pontotoc County; James E. Bost, Chancellor.

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

AFFIRMED.


author: HAWKINS, Justice,

text:
    Owen Lee HARDEN v. STATE of Mississippi.
    No. 55617.
    Supreme Court of Mississippi.
    Oct. 17, 1984.
    Rehearing Denied Jan. 16, 1985.

      Grady F. Tollison, S. Allan Alexander, Rebecca B. Cowan, Patterson, Tollison, Alexander, Powers & Mills, Oxford, for appellant.
    Robert L. Williams, Robert J. Kelly, Her-nando, Edwin Lloyd Pittman, Atty. Gen., Marvin L. White, Jr., William S. Boyd, III, Sp. Asst. Attys. Gen., Jackson, for appel-lee.

      . This incredibly lacking record did not include a copy of the indictment, and no record of the cause of Williamson's death. A copy of the indictment was furnished, by Court request, just prior to the date set for oral argument. For the cause of death, counsel on both sides rely on the opening statement and closing argument of the prosecuting attorney, and their statements in briefs.

   HAWKINS, Justice,

for the Court:

Owen Lee Harden appeals from an order of the Circuit Court of the First Judicial District of Yalobusha County denying his petition for a writ of habeas corpus.

Harden was under arrest under indictments for three crimes: conspiracy to murder James B. Williamson, arson of Williamson’s house, and arson of Williamson’s personal property. In his petition Harden claimed prosecution was barred for these crimes because of his previous acquittal of Williamson’s murder, and his having been required to invoke the 5th Amendment privilege against self-incrimination in a co-defendant’s subsequent trial for the murder of Williamson. The double jeopardy and self-incrimination rights guaranteed by the 5th Amendment to the U.S. Constitution, and of Article 3, Sections 22 and 26 of our Mississippi Constitution are at stake.

FACTS

In the early morning of March 22, 1982, the residence of James B. Williamson was observed by a passer-by to be on fire. Help was summoned; the entire house, with the exception of the carport, was consumed. The charred body of Williamson was found inside. At the time of his death, Williamson was 64-years-old, and lived on Highway 32 about three and one-half miles east, of Highway 51 in Yalobusha County.

On January 27, 1983, the grand jury of the First Judicial District of Yalobusha County indicted Owen Lee Harden and two others for capital murder, the pertinent portions of which read as follows:

CECILIA ANN WILLIAMSON, a/k/a COOKIE WILLIAMSON, OWEN LEE HARDEN, and LARRY SHELTON HENTZ ... on or about the 22nd day of March, 1982 ... did unlawfully and willfully and feloniously and intentionally, and of their malice of forethought, kill and murder JAMES B. WILLIAMSON, a human being, said murder was perpetrated by OWEN LEE HARDEN, who had been offered or had received something of value for committing the murder and CECILIA ANN WILLIAMSON, a/k/a COOKIE WILLIAMSON, and LARRY SHELTON HENTZ, were parties to the murder and are charged as principals in direct violation of Section 97-3-19(2)(d) Mississippi Code 1972 Annotated as amended ...

We surmise, as we must, that a change of venue was granted Harden, as well as a severance, and he went to trial for murder in DeSoto County on July 11, 1983.

Following a several-day trial Harden was acquitted.

On January 4, 1984, the grand jury of the First Judicial District of Yalobusha County returned three indictments involving Harden, Mrs. Williamson and Hentz.

Indictment No. 3872 charges Harden, Mrs. Williamson, and Hentz, as an unindict-ed co-conspirator, conspired to murder Williamson, in violation of § 97-1-1 of the 1972 Code.

Indictment No. 3873 has two counts. Count One charges that Harden, Mrs. Williamson, and Hentz, as an unindicted co-conspirator, conspired to burn the dwelling house of Williamson in violation of § 97-1-1 of the 1972 Code. Count Two charges Harden and Mrs. Williamson with feloni-ously burning the dwelling house of Williamson, in violation of § 97-17-1 of the 1972 Code.

Indictment No. 3874 charges Harden and Mrs. Williamson with feloniously burning the personal property of Williamson, in direct violation of § 97-17-7.

The arson charges in each of the indictments allege the dates of the offenses March 22, 1982. The conspiracy part of each of the indictments allege the conspiracy as beginning in December, 1981, as culminating in March, 1982.

Following his indictment, Harden was placed in custody on these charges. It is entirely possible he was already in jail, but the return of the sheriff states the capias was served upon him on January 4, 1984.

On January 9 Harden filed a petition for writ of habeas corpus. He alleged that he was being illegally detained against his will for crimes in which he had been acquitted, that his imprisonment violated § 22, Article 3 of the Mississippi Constitution, and the 5th and 14th Amendments of the United States Constitution. He also alleged that he was indigent and requested the court file and copies of the trial transcript in the murder case in which the jury returned the verdict of not guilty in DeSoto County, including all witnesses except defense witnesses Sawaya and Dr. Thomas Lombardo.

He made a separate affidavit that he was indigent and had no source of income.

On January 13 by separate motion he requested that the court, pursuant to Rule 8.07 of the Mississippi Uniform Criminal Rules, provide him with specified portions of the transcript of the prior proceeding on his petition for writ of habeas corpus.

The final paragraph of this motion states the following, however:

WHEREFORE, PREMISES CONSIDERED the defendant requests that the court order that the portions of the trial transcript as requested by the defendant in his Petition of Writ of Habeas Corpus be provided him without charge or in the alternative that the tapes be made available to him. [Emphasis added]

On February 2 the circuit judge entered an order as follows:

ORDERED, AND ADJUDGED that the court reporter in possession of the tapes of the trial of State of Mississippi v. Owen Lee Harden, No. 4038 immediately make the tapes available to Ms. Janet Clemens, the court reporter ruled by the Court to be competent to transcribe said tapes for use by defendant.

Ms. Clemens did not transcribe the entire record of Harden’s murder trial. She did transcribe portions of the opening statement and closing argument of the prosecuting attorney Robert L. Williams. She also transcribed testimony of James Vickers, Sheriff L.A. Jones, Tommie Lee Burchfield, Barry Joe Tutor, Hope Langston, and Tommy Lee Johnson.

The habeas corpus hearing was held on February 10, 1984, before the same circuit judge who presided at the murder trial of Harden.

The transcribed portions of the witnesses’ testimony offered by Harden at the hearing may be summarized as follows:

James Vickers, an expert in the investigation of fires, testified the Williamson fire was incendiary, and had been intentionally set.
Sheriff Jones testified he arrived at the burning house around 7:30 o’clock in the morning of March 22, 1982, saw the house, with the exception of the garage portion, was burned. He identified portions of the burned house and a badly burned body.
Tommie Lee Burchfield, an oral surgeon, examined x-rays of the dental remains with known x-rays of Williamson during his lifetime, and concluded that the deceased was Williamson.
Barry Joe Tutor testified Harden at one time confided in him that he had shot a man and got paid for it.
Hope Langston, a neighbor living about 300 yards from the Williamson house, testified on the night previously she heard cars going in and out, car doors slamming.
Tommy Lee Johnson was apparently the first disinterested witness to observe the fire, when he was on the way to work around 6:15 a.m. He stopped, walked to the door and knocked and then went to the Langston home for help.
The opening statement of prosecuting attorney Williams promised the jury that the state would prove Harden had been hired by Hentz to kill Williamson, that Harden went in the back door and shot Williamson with a shotgun plug as he lay asleep. In his closing argument Williams argued to the jury that he had proved these essential facts.

Counsel for Harden saw no need to have any other part of the record transcribed, and neither did the state. Both sides offered tapes of the entire trial as exhibits, no doubt confident members of this Court would gladly complete their task.

With no objections from the respondent, the Honorable Rebecca Barge Cowen, a member of the defense team at Harden’s murder trial, testified from her notes what had been said at the murder trial. We will not repeat the witnesses whose testimony was transcribed.

As to the testimony regarding Hentz, Miss Cowen stated:

Yes. And looking at my notes, basically Mr. Hentz testified about a gallon jug of gasoline being taken by Owen Lee Harden to the Williamson house. He testified about Mr. Harden carrying the gasoline and he also testified about certain statements that Lee Harden made concerning feeling ill after he supposedly had burned the Williamson home.

When asked if Mr. Hentz had testified anything else, again from her notes Miss Cowen testified:

Yes. He also gave a statement that, the supposedly statement made by Lee Harden that he killed him and burned the house up.

Then Mrs. Cowen was asked about a witness named Morrow. What did he testify?

He also made reference to the gasoline. He testified that Lee Harden had supposedly told him that he talked about the smell and the burning house and that — I have in my notes that he almost did not get out, scared when the fire started, that he supposedly started. That it scared him and he could not get out of the room.

Mrs. Cowen also said that the above was what Morrow testified Harden had told him.

Mrs. Cowen also testified about Harden being called- to the witness stand in the trial of Mrs. Williamson which had been transferred to Pontotoc County. We will return to this testimony later. [R.74]

When Harden rested, Honorable Robert L. Williams testified about what had occurred in the murder trial of Harden, and about Harden being called as a witness in the murder trial of Mrs. Williamson in Pon-totoc County, to which we will return later.

As to the Harden murder trial, Williams testified the defense counsel for Harden in closing argument posited to the jury that the autopsy of the remains showed Williamson died not over an hour to one and one-half hours following eating, that his bereaved widow testified that he had eaten 8:00 to 9:00 p.m. on the night of March 21. Therefore, since the state’s version of the homicide was that it occurred between 5:00 and 6:00 o’clock a.m. on March 22, Harden just could not have done it.

Then according to Williams, the able defense counsel concluded:

My client — the state has not proved that my client killed James Williamson. They may have proved that he is guilty of some other crime including arson but he is not on trial for arson. The only question that you are to decide is did he kill James Williamson or didn’t he, not whether he burned the house.

On cross examination Williams conceded that the “theory” of the state’s case was that Harden, in the company of Hentz, went to the house with gasoline, shot Williamson and burned the house. He also conceded that there was testimony to that effect.

Williams also acknowledged that the testimony of his opening statement and closing argument was accurate.

Williams was also asked about the part of Mrs. Williamson’s murder trial in Ponto-toc County in which Harden took the 5th Amendment.

Harden claimed he was entitled to be released upon his petition for the additional reason that his 5th Amendment rights had been violated by the state’s calling him as a witness in the murder trial of Mrs. Williamson.

As noted above, at the habeas corpus hearing Miss Cowen testified, and Mr. Williams testified about Mr. Harden being called as a state’s witness at the murder trial of Mrs. Williamson in January, 1984, in Pontotoc County. Harden’s complaint, as to the Pontotoc County proceeding, is embodied in a bill of exceptions signed by the presiding circuit judge, and we will not summarize the habeas corpus hearing hearsay testimony of Mrs. Cowen and Mr. Williams.

The bill of exceptions reflects Harden was subpoenaed on January 15, 1984, to testify as a witness in Mrs. Williamson’s trial, and that on January 24, 1984, he was called to the witness stand.

Harden’s counsel advised the state that Harden would invoke the 5th Amendment. In chambers Harden was asked two questions: Did he kill Williamson, and where he was on March 22, 1982? He refused to answer.

Thereafter, in the presence of the jury Harden was asked four questions: did he kill Williamson, did he throw a shotgun in the river, had he confessed to murdering Williamson, and whether or not he was paid $1,100 to kill Williamson.

He refused to answer these questions, again invoking the 5th Amendment.

Following argument by counsel, the circuit judge on February 21, 1984, entered an order denying the petition:

The Court has reviewed the testimony of three (3) witnesses and has reviewed the evidence in the form of the record of the trial of State of Mississippi vs. Owen Lee Harden, DeSoto Circuit Court Cause No. 4038. The Court has reviewed the tape recordings of that trial as well as the documents filed with the Circuit Court Clerk, in that cause.
The Defendant and the State of Mississippi presented oral argument to the Court and cited case law. This Court finds that it need not consider any of the United States Supreme Court decisions because the Mississippi Supreme Court has thoroughly covered the controlling rules of law in State vs. Sanders [Sanders v. State], Miss.1983, 429 So.2d 245; Smith vs. State, Miss.1983, 429 So.2d 252 and State vs. Cox, Miss.1976, 339 So.2d 1374.
This Court finds that the “rational jury test” is the controlling principle to consider. Based upon this Court’s recollection of the facts, argument of counsel and legal issues presented to the jury in the trial of State vs. Harden, this Court concludes that the general jury verdict of not guilty to the charge of capital murder does not foreclose the State from prosecuting this Defendant in the cases sub judice. The Court finds that the jury in State vs. Harden could logically have found the Defendant not guilty of capital murder; and, that general jury verdict does not foreclose the State from prosecuting the Defendant upon charges of arson arising from the burning of the dwelling and personal property of James Williamson on March 22, 1982.
A criminal defendant may be prosecuted for more than once statutory offense arising out of a basic set of facts. Blockburger vs. United States, 1931, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306]; Smith vs. State, supra. And it matters not if the criminal defendant was acquitted or convicted of one offense, for the acquittal or conviction does not exempt the defendant from subsequent prosecution for a statutorily different offense.
In the capital murder charge was based upon a conspiracy. At least one of the arson indictments is based upon a conspiracy. Due to the peculiar nature of the elements and the evidence in conspiracy trials, the Court may logically conclude that the Harden trial jury found that the State failed to meet its burden of proof beyond a reasonable doubt that Harden was a co-conspirator in the murder charge; yet, that same jury need not have considered whether or not Harden was a co-conspirator to or perpetrator of arson.
Based upon the foregoing findings and reasoning, the Court denies and dismisses the Habeas Corpus Petitions upon the evidence and rules of law.
[Record, Vol. II, pp. 171-A, 171-B]

The circuit judge also on February 21, 1984, entered an order granting bail to Harden as follows:

Upon the charge of conspiracy to commit arson, bail is set in the amount of $25,-000; upon the charge of arson of a dwelling, bail is set in the amount of $25,000; and upon the charge of arson of personal property, bail is set in the amount of $10,000.

Harden appealed. On May 2, 1984, he filed with this Court a motion to advance the cause on our docket, which was sustained May 9. The record was filed May 21.

Harden’s assignment of error, abstract and brief were filed in this Court May 31.

The state made no response to Harden’s brief, until on July 18 when it filed a motion to dismiss the appeal, or in the alternative to stay briefing and argument schedule for a limited remand to the circuit court to transcribe the tapes. We denied the motion August 9. The state on August 16 petitioned for a rehearing on our denial.

The attorney general’s office and the district attorney filed separate briefs on August 24. We heard the case on oral argument on August 28.

LAW

The state is entitled to a reason for our denial of its motion to dismiss the appeal or remand.

A ease such as this involving serious constitutional questions, and depriving a person of his liberty can only be viewed with the utmost gravity. Indeed, habeas corpus matters are preference cases. See § 9-1-19 and § 11-43-1 et seq. Miss. Code Ann. (1972).

The circuit judge in this case entered an order denying the petition on February 24, 1984. We find no effort whatever on the part of the state to have the record transcribed until the state’s belated motion filed almost six months later.

We cannot be kindly disposed to a motion filed under circumstances such as this.

If Harden’s counsel has seen that we have been furnished sufficient record to grant relief, we will inquire no further. Of course, the obligation is his to see that we do have sufficient record. If the state is of the view that other portions of the record are important or necessary to support its position, then it should have taken appropriate steps to see we were furnished it.

This view as to the missing portions of the record is compelled because the state took no reasonably prompt action to see that the entire record was transcribed.

DOUBLE JEOPARDY

Harden first argues that because of his acquittal of the capital murder indictment, any present prosecution of the arson indictments is barred, because to do so would constitute double jeopardy, prohibited by the 5th Amendment to the United States Constitution and Article 3, Section 22 of our Mississippi Constitution.

Two of the strongest imperatives under which an appellate court operates must be weighed here.

The first is the inviolate right of any person not to be prosecuted twice for the same offense. This treasured right is so deeply imbedded in our national conscience and in our system of laws that any violation is absolutely odious.

The other is the reluctance of an appellate court to interfere with trial proceedings. Again, experience has taught us that our function is to decide cases which have been concluded in the trial court, and on lawful appeal here. Any person who feels aggrieved at a lower court decision has an absolute right of appeal to this Court, at which time all his grievances can be addressed by us.

This Court has no right, and no authority to interfere with trial proceedings except in those rare cases where a trial court is obviously going beyond any semblance of its lawful authority. In Re: Evans, 524 F.2d 1004 (5th Cir.1975); In Re Illinois Central R. Co., 192 F.2d 465 (5th Cir.1951); Boydstun v. Perry, 249 So.2d 661 (Miss.1971); Illinois Central RR Co. v. Moore, 215 So.2d 419 (Miss.1968); Everitt v. Lovitt, 192 So.2d 422 (Miss.1966); and Wilby v. Board of Supervisors of Jones County, 226 Miss. 744, 85 So.2d 195 (1956). If there is doubt, we resolve it in favor of non-interference. Chatham v. Johnson, 195 So.2d 62 (Miss.1967); Wilby, supra; Overstreet v. Lord, 160 Miss. 444, 134 So. 169 (1931); Board of Supervisors of Rankin Co. v. Lee, 147 Miss. 99, 113 So. 194 (1927); and Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723 (1908). The wisdom of this policy needs no explanation.

If Harden has presented us with a double jeopardy violation in his habeas corpus petition, however, it is our duty to interfere, and tell the state he cannot be prosecuted. For, such a grave constitutional violation would be one of those exceptional circumstances obligating this Court to abort trial proceedings.

The double jeopardy right has been interpreted to mean not only is the state prohibited from putting an accused to trial twice for the same crime, but also, if, by the jury’s acquittal in the first trial it of necessity had to find in favor of the accused on facts presently relied upon by the state in the second trial for another crime, then the second prosecution is prohibited. See Sanders v. State, 429 So.2d 245 (Miss. 1983).

An excellent example of this principle may be found in State v. Clements, 383 So.2d 818 (Miss.1980). 7 Clements was riding in a pickup involved in a head-on collision with a car in which two of the automobile occupants were killed and another seriously injured. The culpable act with which Clements was charged was suddenly grabbing the steering wheel of the pickup causing it to swerve left into the path of the on-coming car. Clements was indicted for manslaughter in the death of two of the car’s occupants, and aggravated assault in the serious injury of another.

Clements was first tried and acquitted on the manslaughter indictment. Clements then moved to quash the indictment against him for aggravated assault, which was sustained by the trial judge. The state appealed this dismissal, and we affirmed because the simple dispositive issue of whether Clements grabbed the steering wheel was in both the manslaughter and the aggravated assault cases.

Unfortunately, few cases are as clear-cut as Clements. In Sanders, the accused was indicted for the crime of burglary of an inhabited dwelling, and rape of the inhabitant. He was first put to trial for the rape charge. Sanders took the stand in his own defense and testified he did not enter the victim’s house and did not rape her, but that another person named Willie Earl Scott did, and he, Sanders, had nothing to do with it. The only issue before the jury in the rape trial was whether Sanders broke into the house and raped the victim, or Willie Earl Scott did. The jury acquitted Sanders of the rape charge.

Sanders was subsequently tried and convicted under the burglary indictment. We reversed and discharged Sanders, holding that the jury finding of fact in favor of Sanders in the rape charge could not “logically co-exist”. with a jury finding him guilty of burglary.

Noteworthy is the fact that Sanders took the stand and testified in his case, while in the murder case Harden did not take the stand. We thus do not have the benefit of Harden’s specific defense.

We need not labor the point. The lesson, with cases cited, is thoroughly set out in Sanders.

Our inquiry is whether or not a jury finding of not guilty in the capital murder trial of necessity, from the evidence before it, found Harden was not implicated in the arson of Williamson’s home and personal property.

We certainly cannot say from what we have before us that when the jury found Harden not guilty of capital murder it also found in his favor on the arson charges.

While the state appears periously close to breaking the wire triggering the double jeopardy protection, it may not be. We can go no further than what is before this Court in this proceeding.

In reaching this conclusion we do not consider the trial tapes which have not been transcribed.

PRIVILEGE AGAINST SELF INCRIMINATION

Harden, over the objection of his counsel, was called as a witness in the case against Mrs. Williamson in Pontotoc County. He was not on trial in this proceeding. He refused to testify.

He now asserts that the mere fact he was placed upon the stand and required to exercise his 5th Amendment privilege against self-incrimination bars subsequent prosecution for the arson charges. It is doubtful whether any of the questions asked dealt with the arson charges, but there is no need to address this proposition.

Harden cites no authority for the proposition that when a person is called as a witness in a proceeding in which he, himself, is not on trial before a jury, and in which he refuses to testify he is granted immunity from subsequent prosecution. We have found no such authority. It is when the witness is compelled to testify that the 5th Amendment protection against subsequent prosecution comes into play. See: People v. Linick, 79 A.D.2d 925, 434 N.Y.S.2d 423 (1981). We therefore find this contention without merit.

While the excessiveness of bail is not addressed in Harden’s petition, we must note it is manifestly excessive. Upon proper application the trial court under the law must set a reasonable bail.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . We take the state at its word that it has dismissed the indictment charging Harden with conspiracy to commit murder.


author: DAN M. LEE, Justice, HAWKINS, Justice,

text:
    INTERNATIONAL PAPER COMPANY v. Mitchell BASILA.
    No. 54379.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Rehearing Denied Jan. 9, 1985.

      Wallace R. Gunn, Milton A. Schlesinger, Joseph E. Bush, Gunn, Schlesinger & Bush, Hattiesburg, for appellant.
    A.M. Murphy, Lucedale, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

On October 30, 1981, appellee, Mitchell Basila filed in Chancery Court of Greene County, a bill of complaint alleging that at sometime during 1977 or 1978 appellant, International Paper Co. entered Basila’s ten (10) acre parcel of land in Greene County without permission and cut and removed all merchantable timber. The bill stated that Basila protested the cutting to officials of International Paper but that these officials would not compensate him for the value of the timber taken. On November 2, 1981, a copy of the complaint was served on C.T. Corp. agent for process for International Paper. International Paper did not file an answer prior to December 9, 1981, and as a result Basila filed a motion for a decree pro confesso. A pro confesso decree was entered on December 9, 1981, and was followed by the entry of a final decree on December 18, 1981.

International Paper first became aware of the final decree on January 19, 1982. International Paper had responded to Basi-la’s complaint with a motion for an enlargement of time in which to answer; but for uncertain reasons, the motion, certificate of service and proposed order had been mailed to the Chancery Clerk at his home at Rt. -, New Augusta, Mississippi. A copy was also sent to Hon. A.M. Murphy, Luce-dale, Mississippi, Attorney for Basila, but mysteriously were not discovered and filed by the clerk until January 19,1982, 31 days after the final decree had been entered. The letter was postmarked in Hattiesburg, Mississippi, November 27, 1981. In an attempt to correct this error, on February 22, 1982, International Paper filed the equivalent of a motion to set aside the judgment under the old rules. After a hearing on the motion, the chancellor refused to set aside his final decree and decree pro confesso, but did order that the prejudgment interest and attorneys fees awarded in the final decree be expunged. International Paper has appealed the chancellor’s refusal to set aside the final decree and decree pro confesso. Basila has cross-appealed the chancellor’s expunction of the prejudgment interest and attorneys fees.

While several points were raised on this appeal the dispositive issue is whether the chancellor abused his discretion when he refused to set aside the final decree and pro confesso decree. We are of the opinion that the chancellor did abuse his discretion for the reasons set forth below.

Decrees pro confesso and final decrees are not favored by this Court in situations where surprise, accident, mistake or fraud have given rise to the judgment. Kemp v. Atlas Fertilizer & Chemical Co., 199 So.2d 52 (Miss.1967); Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430 (1926); Robertson, State Revenue Agent v. Aetna Ins. Co., 134 Miss. 398, 98 So. 833 (1924); Griffith, Chancery Practice § 642 (2nd ed. 1950). In Kemp, the Court stated:

[A] chancellor has the authority to vacate and set aside decrees pro confesso and final decrees at any time, whether in term time or vacation, when such decrees have been procured by fraud, surprise, accident or mistake.

199 So.2d at 58.

However, decrees pro confesso and final decrees have been upheld by this Court in cases where parties have been guilty of extreme dilatoriness or inexcusable neglect. Owen v. Payne, 301 So.2d 293 (Miss.1974); Davis v. Polk, 242 Miss. 419, 135 So.2d 175 (1961).

Ruling on a motion to set aside or vacate a decree pro confesso or final decree is a decision which is best left to the sound discretion of the trial judge. In the exercise of that discretion, the trial judge should consider the following factors:

(1) Whether there was a bona fide excuse for the failure to answer timely.

(2) Whether the party in default has a colorable defense on the merits, thus indicating that the party is not merely attempting to delay; and

(3) The prejudice which would result to the non-offending party by the delay if the decree should be set aside.

In the case at bar, the chancellor failed to weigh these factors in his decision. The failure of International Paper to timely file an answer was the result of an accident or mistake and was certainly not occasioned by simple disregard of the service of process or indifference. Also, International Paper clearly had a colorable defense to the action instituted by Basila, it claims that it owns the property in question. Finally, from the record it appears that no irreparable injury to Basila would have occurred from the setting aside of the final decree and decree pro confesso. International Paper would have been allowed its day in court and the pursuit of an ultimately just resolution would have been furthered by a decision on the merits. The setting aside of the decree pro confesso and final decree are plainly required. The chancery court’s ruling of July 20, 1982, is reversed, the final decree of December 18, 1981, and the decree pro confesso of December 9, 1981, are vacated, and the case is remanded to the Chancery Court of Greene County for further proceedings as may be appropriate.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, PRATHER and ROBERTSON, JJ., concur.

HAWKINS, J. concurs in part and dissents in part.

SULLIVAN, J., not participating.

HAWKINS, Justice,

concurring in part and dissenting in part:

I concur in the reversal of this case, but I dissent from the reasons given by the majority for its reversal.

If I read the majority opinion correctly, in my view International Paper Company was never in default. Default occurs only when the defendant has ignored the summons, and made no response. In this case process was served on the defendant on November 2, 1981. On November 27 counsel for the defendant mailed a motion for additional time to the clerk of the court and with a copy to opposing counsel. The clerk received the motion at his home address. This case differs from In Re Estate of Stanback, 222 So.2d 660 (Miss.1969). All the clerk was required to do with this motion was file it with the papers in the court file. Miss.Code Ann. § 11-1-5 (1972). The general rule is that a pleading or other paper may be said to have been duly filed when it is delivered to the proper filing officer. See: Henson v. Henson, 261 Ala. 63, 73 So.2d 100, p. 102 (1954); Roby v. Leonard, 209 So.2d 182, p. 184 (La.App. 1968); 71 C.J.S. Pleading, § 408.

Certainly the clerk knew his responsibility as to the motion. If he had any objection to receiving it at his home, he should have promptly notified defendant’s counsel. See: 14 C.J.S. Clerks of Court, § 45. When the motion for a decree pro confesso was presented to the chancellor on December 9, the clerk had received the motion from the defendant.

Thereafter, when the circumstances surrounding entry of the decrees were developed before the chancellor on February 22, 1982, and it became apparent that the clerk had in fact received the defense motion prior to the date of the entry of the decree pro confesso, the chancellor should have held that the defendant was not in default when the decree pro confesso was entered and promptly set it and the final decree aside. The decree pro confesso resulted from a failure on the part of the clerk to file the motion in the court file.

I dissent from the following language of the majority:

However, decrees pro confesso and final decrees have been upheld by this Court in cases where parties have been guilty of extreme dilatoriness or inexcusable neglect. (Citations omitted [emphasis added])

Of course, such decrees have been upheld when defendants have been guilty of this degree of neglect. They have also been upheld when the defendant has only been guilty of simple inattention. And, in the absence of fraud or some defect in the judgment, as a pre-requisite to setting aside a judgment, the movant is required to prove its entry did not result from negligence on his part. Indeed, a court is powerless to set aside a final judgment following the term. Trailer Express, Inc. v. Gammill, 403 So.2d 1292 (Miss.1981); Martin v. Armstrong, 350 So.2d 1353 (Miss.1977); Overstreet v. Liberty Mutual Ins. Co., 263 So.2d 528 (Miss.1972); City of Starkville v. Thompson, 260 So.2d 191 (Miss.1972); Kemp v. Atlas Fertilizer & Chemical Co., 199 So.2d 52, p. 56 (Miss.1967); George v. Standard Oil Co. of Ky., 239 Miss. 712, 124 So.2d 858 (1960); Hayes Produce Co. v. Taylor, 213 Miss. 217, 56 So.2d 503 (1952); Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945); Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430 (1926); and Carter v. Kimbrough, 122 Miss. 543, 84 So. 251 (1920).

An entirely different rule prevails when a motion is made to set aside a judgment during the term in which it is rendered, and the trial court in that situation should be much more lenient, provided the defendant shows he has a meritorious defense. This obviously is not the situation here. It appears the majority has confused the two standards which should be applied in setting aside judgments. Thus, it sets forth a three-step standard for setting aside a judgment which may be appropriate if the motion to set it aside is made during the term. Badger Mutual Insurance Co. v. Trustees of the North Mississippi Hospital, 241 Miss. 15, 128 So.2d 584 (1961); Campbell v. Campbell, 231 Miss. 658, 97 So.2d 527, p. 528 (1957); Manning v. Lovett, 228 Miss. 191, 87 So.2d 494, p. 496 (1956); and Planters Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440 (1922). See, however: James v. Hall, 197 So.2d 226 (Miss.1967).

The trial judge following the term may want to weigh these three factors in considering whether a judgment duly entered should be set aside. He is under no obligation to do so, however; at least, he was not until the majority spoke.

The majority is going to make it a relatively simple matter to set aside a final judgment; indeed make it erroneous for the trial judge not to do so, in which personal service of process has been duly had upon a defendant, there has been no fraud, and the court was fully empowered by law to enter final judgment.

I do not know what the majority means by “bona fide excuse” on the part of the defendant. It could mean anything this Court chooses it to mean.

Where a judgment has been obtained in any court upon valid process, and neither the plaintiff nor his counsel has done anything to mislead the court or opposing counsel, it should not be set aside following term time. Judgments should have finality-

They did until the majority spoke in this ease.

As the majority notes, this is a pre-Rules case. It was not the intent of the Rule, either, to alter the basis for obtaining relief from a judgment from which no appeal was taken. See Rule 60(b) of Mississippi Rules of Civil Procedure and commentary thereunder. I would have viewed an effort to set aside a valid judgment from which no appeal was taken as an extremely difficult undertaking, even with the Rules. At least, in my respectful view, it should be.

The majority has changed this, and unnecessarily so to reach the right result in this case.

      . “It matters not whether relief is sought by way of an original bill in the nature of a bill of review, by a true bill of review, by motion, by petition or by other pleading. One of the procedural maxims of equity is that it looks to the intent, and will regard substance rather than form.” Kemp v. Atlas Fertilizer & Chemical Co., 199 So.2d 52, 57 (Miss.1967).

      . This list is by no means exhaustive. In the exercise of the trial judge's discretion other factors may be considered where applicable to the situation.

      . Counsel for International Paper Company had a professional responsibility, also, in addition to simply filing a motion for additional time to plead. As an officer of the court he should not only have contacted Basila’s attorney that he was filing the motion, but also seen whether opposing counsel agreed to additional time to plead. If he had not secured an agreement, he should have seen that the motion was promptly brought to the attention of the chancellor and ruled upon. If opposing counsel had agreed to extra time to plead, a consent order granting the time should have been presented to the chancellor for approval.
      That defendant’s counsel by his lackadaisical handling of the motion may have subjected himself to a reprimand from the chancellor (trial judges have had too much of this sort of behavior from attorneys) does not change the law on default, however.


text:
    R.H. SIMS v. Pamela P. SIMS.
    No. 54499.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Rehearing Denied Jan. 16, 1985.
    Jerry A. Evans, Hattiesburg, for appellant.
    Bill Waller, Sr., Waller & Waller, Jackson, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED ON DIRECT APPEAL. CROSS APPEAL DISMISSED.

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

SULLIVAN, J., not participating.


text:
    Charles HILL v. STATE of Mississippi.
    No. 55226.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Rehearing Denied Jan. 16, 1985.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge. '

Billy Ray Covington, Gary B. Jones, Meridian, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Ex parte Ralph CREAR. (In re: Ralph Crear v. State)
    82-417.
    Supreme Court of Alabama.
    Nov. 10, 1983.
    Nancy I. Cottle of Cottle & Cottle, Tal-lassee, for petitioner.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

Petitioner Crear, an inmate at Draper Correctional Center, petitioned the Circuit Court of Elmore County for a writ of habe-as corpus, alleging that his good time credits had been revoked at a hearing which did not afford him due process of law. The circuit court dismissed the petition without holding a hearing. The Court of Criminal Appeals, 425 So.2d 1370, affirmed without opinion. Crear’s application for rehearing, 428 So.2d 1375, and petition for certiorari properly followed Rule 39(k), A.R.A.P., in requesting that pertinent facts be included in any opinion which might be issued.

Crear’s petition for habeas corpus set out three alleged infractions of his due process rights during the disciplinary board hearing which resulted in the loss of eighteen months of good time credit: that he was not given 24 hours’ notice of the hearing, that he was not allowed to produce witnesses, and that he was denied a hearing before an impartial board. The record includes a “Notice of Disciplinary Board Hearing” from which it appears that Crear refused to sign the receipt statement or the “witnesses desired” portion. The officer who presented the notice form to Crear indicated on it that Crear received it more than 24 hours prior to the hearing and desired no witnesses. Crear argues that this does not suffice for summary dismissal of his petition for habeas corpus, at least in the face of his claims that he was not given 24 hours’ notice and that he was denied the opportunity to present witnesses.

Crear’s allegations of denial of due process are all taken from statements in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Wolff directly mandates the requirements of 24 hours’ notice and opportunity to call witnesses when doing so would “not be unduly hazardous to institutional safety or correctional goals.” Id., 418 U.S. at 566, 94 S.Ct. at 2979. The Court declined to rule that the Adjustment Committee which conducted the required hearings was “not sufficiently impartial to satisfy the Due Process Clause.” Id., 418 U.S. at 571, 94 S.Ct. at 2982. It appears, however, that the challenge in Wolff was to the makeup of the Committee and its guidelines, not, as here, to the status of one of its members as being involved in the case. The Court explained its holding that there was no showing of insufficient impartiality as follows:

“The Committee is made up of the Associate Warden Custody [sic] as chairman, the Correctional Industries Superintendent, and the Reception Center Director. The Chief Corrections Supervisor refers cases to the Committee after investigation and an initial interview with the inmate involved. The Committee is not left at large with unlimited discretion. It is directed to meet daily and to operate within the principles stated in the controlling regulations, among which is the command that ‘[f]ull consideration must be given to the causes for the adverse behavior, the setting and circumstances in which it occurred, the man’s accountability, and the correctional treatment goals,’ as well as the direction that ‘disciplinary measures will be taken only at such times and to such degrees as are necessary to regulate and control a man’s behavior within acceptable limits and will never be rendered capriciously or in the nature of retaliation or revenge.’ We find no warrant in the record presented here for concluding that the Adjustment Committee presents such a hazard of arbitrary decisionmak-ing that it should be held violative of due process of law.”

Id. Thus the Supreme Court in Wolff left open the possibility that an insufficiently impartial disciplinary board would serve as grounds for habeas corpus.

Our research has not disclosed any further pronouncements by the Supreme Court of the United States on this specific aspect of the Wo/#'holding. The case most closely on point among federal circuit court decisions appears to be Walker v. Hughes, 558 F.2d 1247 (6th Cir.1977), in which the court, finding no due process violation, noted that “[n]either the reporting nor the investigating officer could be a member of the Adjustment Committee.” Id., at 1258. This Court recently addressed the right to call witnesses in prison disciplinary hearings in Ex parte: Chester Bland, 441 So.2d 122 (Ala.1983).

The record before us under petitioner Crear’s 39(k) statement shows he appended to his petition for habeas corpus the following amendment to the Alabama Board of Corrections’ Administrative Regulation 403, “Disciplinary Board Hearings Procedure for Major Violations,” dated March 12, 1976:

“Paragraph 4d(6)(b), Administrative Regulation 403 is changed to read as follows:
“ ‘(b) The disciplinary board must be impartial meaning that a board member must not be the arresting officer, witness to the actual incident, the investigating officer, a party to the incident, the victim of the incident, or an official who has approval authority over the disciplinary.’ ”

(Emphasis in original.) Crear, in his petition and supporting affidavit, asserts that Officer Charles LaPrade witnessed the event and helped arrest him immediately after it took place. Officer LaPrade signed the notice form and wrote that Crear refused to sign for receipt of the notice or to specify witnesses desired. Officer La-Prade was one of the three members of the disciplinary board which held Crear’s hearing and recommended revocation of his good time credits.

The State argues that there is no evidence that LaPrade witnessed the event or arrested Crear, and that thus there is no support for Crear’s assertions. This argument does not negate the fact that Crear has raised a factual question, which, if Crear’s contentions prove correct, would raise a prima facie case of partiality under the Board of Corrections’ own regulation. Nothing in the record contradicts Crear’s statements regarding Officer LaPrade. Officer Randelson, who was the officer involved in Crear’s alleged assault and who was also the reporting officer, reported that an unidentified shift commander advised him what to do with Crear immediately before the incident. The statements of both Officer Randelson and Inmate Brown refer to unidentified officers who “broke it up.” Crear contends that LaPrade was the shift commander and one of the arresting officers.

Crear’s petition for habeas corpus thus raised at least one issue which merited a hearing in circuit court. We pretermit consideration of his argument that the evidence on the face of the record that he was given 24 hours’ notice and desired no witnesses does not support a summary dismissal of his petition for habeas corpus. If he has evidence to contradict these items, he may present it at the hearing which is mandated for the reasons stated above.

The judgment of the Court of Criminal Appeals, affirming the dismissal of Crear’s petition for habeas corpus, is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Justices concur.


author: SAM TAYLOR, Judge.

text:
    Ralph CREAR v. STATE.
    5 Div. 711.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
   AFTER REMANDMENT

SAM TAYLOR, Judge.

Remanded with directions to the trial court to holding a hearing on Appellant’s petition for habeas corpus on authority of the Supreme Court of Alabama, Ex parte: Ralph Crear, 460 So.2d 1208 (Ala.1983).

REMANDED WITH DIRECTIONS.


author: BEATTY, Justice.

text:
    Ex parte Earnest James STURDIVANT. (Re Earnest James Sturdivant v. State).
    No. 83-441.
    Supreme Court of Alabama.
    May 11, 1984.
    As Corrected on Denial of Rehearing July 6, 1984.
    Certiorari Denied March 4, 1985. See 105 S.Ct. 1391.

      J. Patrick Cheshire and Blanchard L. McLeod, Jr., Selma, for petitioner.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

The petitioner, Earnest James Sturdi-vant, was convicted of the charge of second degree robbery in the Circuit Court of Dallas County, Alabama, on May 5, 1982. He filed a petition for a writ of error coram nobis on May 17,1983, alleging that he was denied the effective assistance of counsel due to the failure of his court-appointed attorney to file a timely notice óf appeal. The trial court denied that petition. Sturdi-vant appealed that denial to the Alabama Court of Criminal Appeals on September 29, 1983, and that court affirmed the trial court’s judgment, without opinion. 443 So.2d 69. After the Court of Criminal Appeals denied his application for a rehearing, Sturdivant petitioned this Court for a writ of certiorari. We granted the writ to determine whether the Court of Criminal Appeals erred in affirming the trial court’s judgment.

At the eoram nobis hearing in the trial court, Sturdivant testified that he was first represented by Ed Greene. When Greene returned to his position as chief deputy district attorney of Dallas County, Robert Blair became Sturdivant’s lawyer. Sturdi-vant testified that, after his conviction, Blair visited him at the county jail and Sturdivant told him to appeal his conviction.

Blair testified that he and Sturdivant on several occasions after the trial talked about taking an appeal. He further stated that he informed Sturdivant that “the possibility of a successful appeal was very slim at best,” and, therefore, he discouraged his client from taking an appeal. He also advised his client to the effect that, if he should succeed on appeal, he would probably be retried and could possibly be convicted of the more serious offense of robbery in the first degree. The State’s brief indicates that Blair thought that an appeal would be frivolous because, in his opinion, no error had been committed. Additionally, during the' last conversation which Blair had with Sturdivant prior to the expiration of the time for appeal, Stur-divant indicated that he would “go and build his time and get it over with.” Subsequently, Sturdivant told Blair he wanted to appeal, and Blair told him the time for appeal had run out.

Sturdivant asserts that he was denied the effective assistance of counsel because Blair failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the Court addressed the “extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal.” Anders had been convicted of the felony of possession of marijuana and subsequently sought to appeal. He moved that the California District Court of Appeal appoint counsel for him. The court granted that motion, and the attorney filed a no-merit letter in the appellate court, stating:

“I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him. ... [H]e wishes to file a brief in this matter on his own behalf.”

Anders then asked for the appointment of another attorney, but the court denied that request, so Anders filed his brief pro se. After the State had filed its brief, Anders filed a reply brief, following which the District Court of Appeal affirmed the conviction. The United States Supreme Court granted certiorari after the Supreme Court of California and the District Court of Appeal denied Anders’s petition for a writ of habeas corpus.

The United States Supreme Court reversed and remanded the cause, stating:

“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” (Footnote omitted.) Anders, supra, 386 U.S. at 744, 87 S.Ct. at 1400.

In Alabama, state law requires the appropriate appellate court to proceed to a decision on the merits. Code of 1975, § 12-22-130, provides:

“A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the supreme court or court of criminal appeals may appeal from the judgment of conviction to the appropriate appellate court.”

Applying Anders to Alabama practice, once counsel has complied with the requirements of that case, the Court of Criminal Appeals may grant counsel’s request to withdraw, but must appoint substitute counsel to argue the appeal for the indigent.

In the ease at bar, the requirements of Anders were not followed. Sturdivant’s statement that he would “go and build his time” did not necessarily mean that he did not wish to contemporaneously proceed with the appeal; thus his counsel was not relieved of his duty to either appeal the conviction or to withdraw from the case after following the guidelines of Anders. Due to this inadvertent failure, Sturdivant was denied the procedure set forth in An-ders and, therefore, the trial court should have granted Sturdivant’s petition. It also follows that the Court of Criminal Appeals erred in affirming that denial.

Accordingly, we have no option but to follow the mandate of the Anders opinion and, therefore, we must reverse the judgment of the Court of Criminal Appeals and remand this cause to that court with directions to allow petitioner an out-of-time appeal. See Longmire v. State, 443 So.2d 1265 (Ala.1982). It is so ordered.

REVERSED AND REMANDED.

All the Justices concur.


author: PATTERSON, Judge.

text:
    Earnest James STURDIVANT v. STATE.
    No. 2 Div. 394.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    J. Patrick Cheshire and Blanchard L. McLeod, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and Ger-rilyn V. Grant and Joseph G.L. Marston III, Asst. Attys. Gen., for appellee.
   PATTERSON, Judge.

On original deliverance this court affirmed the trial court’s judgment, 443 So.2d 69, without opinion, denying Earnest James Sturdivant’s petition for a writ of error coram nobis, wherein he alleged that he had been denied effective assistance of counsel due to the failure of his court appointed attorney to file a timely notice of appeal. After this court denied his application for a hearing, he petitioned the Supreme Court of Alabama for a writ of certiorari, which was granted.

The Supreme Court of Alabama has determined that the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), were not followed in this case, and that Sturdivant’s defense counsel was not relieved of his duty to appeal the conviction or withdraw from the case following the guidelines of Anders. The Supreme Court further determined that due to the inadvertent failure of the defense counsel to perfect an appeal, Stur-divant was denied the procedure set forth in Anders, and therefore, the trial court should have granted his petition. Sturdvant v. State, 460 So.2d 1210 (Ala.1984). The Supreme Court held that this court erred in affirming the judgment of the trial court, and reversed and remanded the cause to this court with directions to allow Sturdivant an out-of-time appeal. Sturdivant v. State, supra.

Accordingly, the judgment of the circuit court denying the petition for writ of error coram nobis is reversed, and this cause is remanded to that court with directions that the petitioner be afforded an out-of-time appeal, pursuant to the authority expressed in Sturdivant v. State, supra.

In reference to the out-of-time appeal referred to above, it is directed that the time for filing the Record on Appeal shall begin to run as if notice of appeal had been given on the date of this opinion; otherwise the Alabama Rules of Appellate Procedure shall apply.

REVERSED AND REMANDED.

All Judges concur.


author: ADAMS, Justice. ADAMS, Justice.

text:
    John B. AMES and Mae H. Ames v. CENTRAL BANK OF BIRMINGHAM. CENTRAL BANK OF BIRMINGHAM and Mrs. Ruth Binford, as Trustees of the Ames Trust v. John B. AMES and Mae H. Ames. CENTRAL BANK OF BIRMINGHAM v. John B. AMES and Mae H. Ames.
    82-529, 82-576 and 82-607.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Nov. 30, 1984.

      Alston Keith, Jr. and J. Parke Keith, Selma, for appellants/cross-appellees John B. Ames and Mae H. Ames.
    Carleton P. Ketcham, Jr. and J. Terrell McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for appellants Central Bank of Birmingham and Mrs. Ruth Binford, as Trustee, etc.
    Michael L. Edwards and Susan Salonimer of Berkowitz, Lefkovits, Patrick, Isom, Edwards & Kushner, Birmingham, for appel-lee/cross-appellant Central Bank of Birmingham.
    John A. Lockett, Jr., Selma, Guardian ad Litem for the minor beneficiaries of the Ames Trust.
   ADAMS, Justice.

These appeals are taken from the Dallas County Circuit Court’s resolution of various cross-claims of the defendants in a case previously appealed to this court, namely, Ames v. Pardue, 389 So.2d 927 (Ala.1980). The facts of this case are as follows:

In 1977, appellants John Ames and Mae Ames contacted Central Bank of Birmingham about the possibility of purchasing a parcel of land mortgaged by J. Bruce Par-due and Mary Jane Pardue. Central Bank, the mortgagee, had advertised a foreclosure sale for the property. In the course of negotiating the financing of the purchase price of the land, Central Bank agreed to the Ameses’ payment of $150,-000.00 in cash and the execution of a purchase money mortgage. Central Bank does not contest that its officials were aware that the trust to be created and the Ameses were to pay the mortgage indebtedness by subdividing the land and selling parcels, by farming and timbering, and by refinancing the indebtedness through the Federal Land Bank.

In July 1977, the Ameses established the trust, the res of which was to be the Par-due land, for the benefit of their minor children. Central Bank and Ruth Binford were named as trustees. In August, Central Bank, having foreclosed the Pardues’ mortgage, executed a deed to the property in favor of the trust.

The trust assumed the Ameses’ obligation for the $675,000.00 purchase price; however, the obligation was personally guaranteed by the Ameses, who made cash payment of $150,000.00 to the trust, which, in turn, paid Central Bank in order to reduce its principal indebtedness to $525,-000.00. In exchange for a portion of this payment and the execution by Mae Ames of an unsecured note in the amount of $3,500.00, the trust conveyed 50 acres of the Pardue land to Mae Ames.

The trust also conveyed 486 acres of the Pardue property to the Ameses. In exchange, they executed a promissory note in the principal amount of $106,550.00. Thereafter, the Ameses took possession of the land, and lived thereon.

The Ameses and the trust made payments on all rental and note obligations until January 5, 1978. On that date, the Pardues filed suit attacking the validity of Central Bank’s foreclosure sale. Subsequently, the trial judge orally enjoined the Ameses from making additional improvement on the land, and from removing timber therefrom. Central Bank and the trust do not contest the fact that the suit filed by the Pardues, and the subsequent actions taken by the trial court, including its invalidation of the foreclosure sale, effectively prevented the Ameses from utilizing the land to pay their debt to the trust, and, ultimately, the trust’s debt to Central Bank.

The Ameses assert that Central Bank agreed that no interest would accrue on the trust’s indebtedness until the litigation initiated by the Pardues was concluded. Central Bank claims that it only acquiesced to a “moratorium” on the collection of the interest accruing during the pendency of the litigation. In any event, Central Bank did not again seek payment on the indebtedness until after this court had reinstated the foreclosure sale and denied the Par-dues’ application for rehearing. See Ames v. Pardue, supra. At that time, Central Bank demanded payment of all the interest alleged to have accrued on the trust's indebtedness during the Pardue litigation.

In response to Central Bank’s demand for payment, the Ameses sought purchasers for the land. They received two offers: one for the purchase of the 486 acres that they had purchased from the trust and another for the land that John Ames was renting from the trust. One sale was completed, and the proceeds were used first to retire the principal indebtedness of the trust and then to pay interest agreed to have accrued, with the balance of the proceeds placed in escrow. The other sale was never consummated.

Following the trial of this case, the trial court denied all relief requested by the Ameses and the trust, including the trust’s claim against the Ameses for rent, which the court denied due to “impossibility of performance.” In addition, the trial court granted Central Bank’s claim for interest on the trust’s obligation during the penden-cy of the Pardue litigation; however, it also ordered “the Trustee, iri its corporate entity” (Central Bank) to pay the trust’s attorneys’ fees for its defense of the Pardues’ challenge. The Ameses, the trust, and Central Bank appeal.

The following issues have been raised by the parties:

1. Did the trial court err in denying the Ameses’ claims of fraudulent misrepresentation against Central Bank?
2. Did the trial court err in denying the claims of the trustees and the Ames-es against Central Bank for attorneys’ fees and damages resulting from their defense of the Pardues’ attack on the foreclosure sale?
3. Did the trial court err in holding that interest on the trust’s promissory note and mortgage to Central Bank continued to accrue during the pendency of the Pardue litigation?
4. Did the trial court err in ordering the application of a partial payment first to the principal indebtedness of the trust, and then to accrued interest?
5.Did the trial court err in assessing attorney’s fees against the “Trustee in its corporate entity”?

I.

In Ames v. Pardue, we concluded that John Ames had relied on Central Bank’s estimation of the balance of the Pardues’ mortgage indebtedness (just prior to the foreclosure sale) as $675,000.00, but that he “ha[d] not been injured as a result.” 389 So.2d at 931. On remand, the Ameses continued to claim that they were damaged in the sum of $75,000.00 as the result of the bank’s misrepresentation. The trial court concluded, as we did, that the Ameses were not entitled to prevail on their claim of fraudulent misrepresentation against the bank. John Ames’s conflicting testimony concerning his negotiations with Central Bank prior to his decision to bid $675,000.00 for the Pardue land, and the testimony of Central Bank officials to the effect that the bank did not reach a decision on an amount to bid for the land until immediately prior to the sale, required the trial court to make a determination of fact as to whether the bank, at any time prior to the sale, made actionable misrepresentations of the amount it was intending to bid on the property. We think the trial court properly resolved this dispute on the basis of credible testimony.

II, III and IV

The general rule of law applicable to issues two and three, as stated above, was enunciated by this court in Goulding Fertilizer Co. v. Blanchard, 178 Ala. 298, 59 So. 485 (1912):

Sales by a trustee or mortgagee under power granted are sometimes characterized as quasi judicial. This, we apprehend, only in the same sense that they operate to cut off the right of redemption as effectually as would a sale under judicial decree. So it is generally declared that the rule of caveat emptor applies to such sales, but certainly not in the same sense or degree as to judicial sales proper. Our reports teem with cases in which purchasers at power sales have been treated as bona fide purchasers for value, and protected against secret claims and equities, whether existing in favor of third persons against the mortgagor, or in favor of the mortgagor against the mortgagee.—[Citations omitted.] The rule of caveat emptor in such eases means no more than that the mortgagee or trustee who makes the sale, as agent for the mortgagor, is not responsible for any failure of title whether due to irregularities in the sale or want of title in the mortgagor, and that the purchaser cannot urge such failure to defeat his absolute liability to pay the purchase price.

178 Ala. at 305-306, 59 So. at 487-488. Central Bank argues that this rule both precludes the recovery of attorneys’ fees and damages from it by the Ameses and the trust for their participation in the defense of the Pardues’ attack on the foreclosure sale, and also mandates the Ameses’ payment of the purchase price together with interest accrued thereon. Central Bank further contends that the Ameses and the trust could have avoided application of this rule only by providing against interference with their intended use of the land in their agreement with the bank. See Alpine Construction Co. v. Water Works Board, 377 So.2d 954, 956 (Ala.1979).

We think that application of the above-quoted general rule to this case would be inequitable insofar as the bank in its deed to the trust expressly warranted that the foreclosure sale was “duly and properly conducted.” Having given the trustees such a warranty, we think it was incumbent upon Central Bank to defend its actions in selling the Pardue land under its power of sale (in the mortgage given by the Pardues). Central Bank did defend the propriety of the foreclosure sale, and eventually was successful in persuading this court to uphold its validity. We hold that it would be inequitable to require Central Bank to pay the attorneys’ fees of the trust and the Ameses that were incurred in defense of the same foreclosure sale.

We also think that the bank’s warranty suspended the “absolute liability” of the trust (and of the Ameses, as guarantors) to pay the purchase price and interest thereon during the period when the Par-dues’ action interfered with the anticipated use of the land by the trust and the Ameses. See Alger-Sullivan Lumber Co. v. Union Trust Co., 218 Ala. 448, 118 So. 760 (1928). Central Bank’s warranty to the trust prevented the accrual of interest from the time the Pardues filed suit until this court reversed the trial court’s decree that the foreclosure sale was invalid.

Insofar as we hold that no interest accrued on the trust’s obligation to Central Bank during the pendency of the Pardues’ suit, we think the trial court’s order that the proceeds from the sale of a portion of the land be used to retire the principal indebtedness of the trust and also interest agreed to have accrued thereon should be left intact. The proceeds of the sale were not exhausted by the payment of the principal indebtedness and the interest agreed to have accrued thereon. The remaining proceeds were placed in escrow pending a determination of the trust’s and the Ameses’ liability for interest during the Pardue litigation. Therefore, we think the trial court’s failure to observe the requirement of Code 1975, § 8-8-11, namely, that “[w]hen partial payments are made, the interest due is first to be paid and the balance applied to the payment of the principal” (emphasis added), resulted in no reversible error.

V.

The trial court ordered that “the trust, the Ameses, and Central Bank each pay their or its attorneys’ fees expended in defense of the title to [the Pardue] property.” (Emphasis added.) Yet, the court further ordered “the Trustee, in its corporate entity” to pay the fees of the attorneys who represented the trust during the pend-ency of the Pardue action and later against Central Bank alone. We think that the former order was correct, but that the latter order was erroneous.

In the recent case of Graddick v. First Farmers and Merchants National Bank of Troy, 453 So.2d 1305 (Ala.1984), this court construed Code 1975, § 19-3-281, which provides for the payment of expenses, including attorneys’ fees, incurred in connection with a trust estate. The section provides as follows:

(a) All ordinary expenses incurred in connection with the trust estate or with its administration and management, including regularly recurring taxes assessed against any portion of the principal, water rates, premiums on insurance taken upon the estates of both tenant and remainderman, interest on mortgages on the principal, ordinary repairs, trustees’ compensation except commissions directed to be paid out of principal, compensation of assistants, and court costs and attorneys’ and other fees on regular accountings, shall be paid out of income. But such expenses where incurred in disposing of, or as carrying charges on, unproductive estate as defined in section 19-3-280 shall be paid out of principal, subject to the provisions of subdivision (2) of section 19-3-280.
(b) All other expenses, including trustees’ commissions directed to be paid out of principal, cost of investing or reinvesting principal, attorneys’ fees and other costs incurred in maintaining or defending any action to protect the trust or the property or assure the title thereof, unless due to the fault or cause of the tenant, and costs of, or assessments for, improvements to property forming part of the principal, shall be paid out of principal. Any tax levied by any authority, federal, state or foreign, upon profit or gain defined as principal under the terms of subsection (b) of section 19-3-272 shall be paid out of principal, notwithstanding said tax may be denominated a tax upon income by the taxing authority.

(Emphasis added.) In Graddick, we interpreted the above-emphasized word “action” in subsection (b) to mean a “court proceeding,” which the Pardues’ claim clearly entailed. We now construe the emphasized phrase to mandate the payment of the attorneys’ fees incurred by the trust in defending the Pardues’ attack on its title from the trust principal. Therefore, the award of attorneys’ fee against “the Trustee, in its corporate entity” is vacated.

AFFIRMED IN PART; REVERSED IN PART; JUDGMENT FOR ATTORNEYS’ FEES AGAINST “THE TRUSTEE, IN ITS CORPORATE ENTITY” VACATED; AND THE CAUSE REMANDED.

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

On Application for Rehearing

ADAMS, Justice.

Central Bank of the South has requested this court to reconsider and amend the decision in this ease to the extent that it: (1) holds that Central Bank’s warranty prevented the accrual of interest on its promissory note and mortgage from the trust during the pendency of the Pardue action; and (2) holds that the trial court committed “no reversible error” in ordering the application of a partial payment first to principal and then to interest.

Additionally, Central Bank of Birmingham and Mrs. Ruth Binford, as trustees of the Ames Trust, have filed a motion for clarification. They seek clarification of the following language in the opinion:

Insofar as we hold that no interest accrued on the trust's obligation to Central Bank during the pendency of the Pardues’ suit, we think the trial court’s order that the proceeds from the sale of a portion of the land be used to retire the principal indebtedness of the trust and also interest agreed to have accrued thereon should be left intact. The proceeds of the sale were not exhausted by the payment of the principal indebtedness and the interest agreed to have accrued thereon. The remaining proceeds were placed in escrow pending a determination of the trust’s and the Ameses’ liability for interest during the Pardue litigation. Therefore, we think the trial court’s failure to observe the requirement of Code 1975, § 8-8-11, namely, that “[w]hen partial payments are made, the interest due is first to be paid and the balance applied to the payment of the principal” [emphasis added], resulted in no reversible error.

The trustees claim that the foregoing language is ambiguous to the extent that it may be read to ratify or leave intact a net overpayment of $16,815.36 in interest not actually due by the Ames trust to Central Bank. In response to the motion, we hold that any funds in escrow that represent interest which accrued during the pendency of the Pardue litigation are due to be refunded, without interest, to the Ames Trust. We are of the opinion that the tenor of our previous decision would be inconsistent with any other holding.

John B. Ames and Mae H. Ames have also filed a motion for clarification. They request that we make it clear that not only is the trust not obligated for interest during the litigation, but that they, as guarantors of the obligation of the Ames trust, are likewise relieved of liability in this regard. In addition to being relieved of their liability as guarantors of the trust during the pendency of the Pardue litigation, we believe equity demands that the Ameses also be relieved of interest liability to the trust during the same period. Interest once again began to accrue when the court validated the foreclosure sale on October 25, 1980.

Because there is a factual dispute between Central Bank of Birmingham and Mrs. Ruth Binford, as trustees of the Ames Trust, and Central Bank of the South, the question as to the amount due to be refunded is remanded to the trial court for a factual determination consistent with our holding hereinabove stated.

We have considered arguments of Central Bank of the South in support of its application for rehearing and are of the opinion that the application is due to be overruled.

APPLICATION FOR REHEARING OVERRULED. REMANDED FOR FACTUAL DETERMINATIONS CONCERNING THE AMOUNT OP INTEREST DUE TO BE REFUNDED PURSUANT TO THE PREVIOUS ORDER REMANDING THIS CAUSE.

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

      . Our holding accords with the trial court's order that "the trust, the Ameses, and Central Bank each pay their or its attorneys’ fees expended in defense of the title to [the Pardue] land.” See Part V, infra.

      . Central Bank’s own loan officer testified that ”[i]f our foreclosure were invalid our loan to the Ameses was invalid [or] nonexistent.”