text:
    STATE of Louisiana, Plaintiff-Appellee, v. Betty BROOMS, Defendant-Appellant.
    No. K83-1146.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.
    Herman J. Mouton, Lake Charles, for defendant-appellant.
    John A. Duck, Asst. Dist. Atty., Oakdale, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

The defendant, Betty Brooms, was charged by bill of information with the crime of possession of marijuana with intent to distribute under the provisions of LSA-R.S. 40:966(A)(1). A search warrant for the defendant’s apartment in Oakdale was executed on April 27, 1983, and a large quantity of marijuana was recovered as a result of the search. The defendant filed a motion to suppress the marijuana, alleging that the search warrant was defective.

A hearing on the defendant’s motion was held wherein the sole matter at issue was whether the executing officers’ changing of the apartment number on the search warrant, after receiving the issuing magistrate’s approval via a telephone conversation, rendered the warrant invalid. The trial court denied the defendant’s motion, and we granted a writ to consider the correctness of this decision, affording the parties an opportunity to submit briefs and to argue orally before this court.

After considering the pertinent law and the related jurisprudence, we find that the defendant’s motion to suppress, under the particular facts of this case, was properly denied by the trial court.

FACTS

The only witnesses testifying at the motion to suppress were the affiant and the issuing magistrate. The facts are, therefore, derived from their testimony.

On the morning of April 27, 1983, a named informant (Donald Ray White) appeared at the Oakdale Police Department and provided a statement that he had personally observed narcotics, marijuana and other contraband in two separate residences. Officer Glen Dyer took the informant’s statement and was accompanied by the latter to the two specified residences. The defendant resided at one of those places. Each of the locations was expressly pointed out to Officer Dyer by the informant.

When Officer Dyer approached the residence occupied by the defendant in an Oak-dale housing project in order to get the apartment number, he observed that there was no identifying number on the targeted apartment. The adjoining apartment number was 50. Dyer assumed that the defendant’s apartment number would be 48, which number was inserted in the affidavit and search warrant. The record does not establish that the apartment had any particular municipal number.

A search warrant for the defendant’s apartment was obtained from Judge John P. Navarre at 1:00 P.M. on the same day of the informant’s statement, April 27th. That warrant was issued on the basis of affidavits provided by Officer Dyer and another police official. Shortly thereafter, Officer Dyer and approximately six other police officers appeared at the defendant’s apartment to execute the warrant. By coincidence, the defendant arrived at her residence simultaneously with the officers and, upon viewing the warrant, she told Officer Dyer that the number of the apartment was 46 instead of 48. Upon receiving this information, Officer Dyer left with another officer to change the number from 48 to 46. The other officers remained and no attempt to enter the apartment was made.

Officer Dyer drove to the police station where Judge Navarre was telephoned and told of the need to change the warrant to reflect the number on the apartment as being 46. According to both Officer Dyer and Judge Navarre, the latter authorized the former to change the warrant to reflect the number 46 stated by the defendant to be correct.

While at the police station, Officer Dyer, pursuant to Judge Navarre’s authorization, had a dispatcher change both the warrant and the affidavit to reflect an apartment number of 46.

The affidavit, as changed, read as follows:

“That a search warrant should issue for the search of Apt. 46 of the Oakdale Housing Authority being red brick with gray trim, located on Creswell St, Oak-dale, Allen Parish, La.

Officer Dyer then returned with the warrant to the defendant’s apartment, where its execution in the afternoon of April 27th resulted in the seizure of approximately eight pounds of marijuana.

THE LAW

The defendant argues that the alteration in the search warrant rendered it invalid, as being in violation of her rights under both the Fourth Amendment to the United States Constitution, Article I, § 5 of the Louisiana Constitution of 1974 and LSA-C. Cr.P. art. 162.

In the case of State v. Korman, 379 So.2d 1061 (La.1980), in its discussion of search warrants containing errors of description, the court stated as follows:

“A search warrant must particularly describe the place to be searched. U.S. Const. Amend. 4; La. Const. art. 1, § 5 (1974); La.Code Crim.P. art. 162. The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); State v. Segers, 355 So.2d 238 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977).
“This court has held that a minor error in a portion of the description of the premises to be searched does not invalidate the search. State v. Segers, supra; State v. Petta, 354 So.2d 563 (La.1978); State v. Cobbs, supra; State v. Alexander, 337 So.2d 1111 (La.1976); State v. Chaffin, 324 So.2d 369 (La.1975), cert. den., 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832. In Petta, we upheld the search of 1435 Crete Street under a search warrant authorizing the search of 1433 Crete Street, Apartment C. In Alexander, a search of 245 Pearl Street under a warrant authorizing the search 243 Pearl Street was upheld. Similarly, the federal courts have upheld searches where there was a minor error in a portion of the description of the premises in the warrant. Steele v. United States, supra; United States v. Darensbourg, 520 F.2d 985 (5th Cir.1975), and cases cited therein, In Steele, the Supreme Court upheld the search of 609 West 46th Street under a warrant authorizing the search of 611 West 46th, the building being a large warehouse having these two numbers and only partly partitioned. In Dar-ensbourg, the description in the warrant was ‘Apartment #70, located at 3101 Highland Rd., in the City of Baton Rouge. ’ The apartment intended by it was located in a large four-building complex which bordered on both July Street and Highland Road and contained approximately 450 apartments. The apartment searched was the only one in the complex numbered 70. But it was in fact located on July Street, not 3101 Highland Road, which was the address of the business office of the complex. Apartment 70 was about 300 yards from the business office, in a separate building. The buildings were separated by a canal. The Fifth Circuit Court of Appeals upheld the search.”

See also, State v. Smith, 397 So.2d 1326 (La.1981) and State v. Ventry, 439 So.2d 1144 (La.App. 4th Cir.1983), writ den., 443 So.2d 589 (La.1983).

In the cases cited in Korman, where an error of description did not invalidate the search warrant, we find that the courts relied upon the well-established principle that:

“The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. ....”

Under the facts and circumstances presented in the case at hand, Officer Dyer, in the affidavit presented to the judge, clearly intended to describe the apartment shown to him by the informant, Donald Ray White. There is no doubt that he knew and described the exact target of the search warrant. The description contained in the warrant, prepared by the affi-ant and executing officer, Dyer, was such that there was little or no chance that the wrong premises would be searched. The record fails to establish that defendant’s apartment had a particular municipal number. Other than the statement by the defendant, Officer Dyer had no way of knowing the apartment number. Dyer did not depend upon a number for identification of the apartment. Under these circumstances, the fact that Officer Dyer changed the number from 48 to 46 would be of no consequence and would not invalidate the warrant.

Defendant’s reliance upon State v. Lee, 247 La. 553, 172 So.2d 678 (1965) is misplaced. The Lee case was decided during the time that appeals in criminal cases were presented by bills of exception. Under the then-existing procedure, each issue raised by an appellant had to be done so by a bill of exception. The procedural law also required that all evidence pertaining to the bill be attached to the respective bills. In the event that such testimony was not attached to the bill, the appellate court could not consider the evidence pertinent thereto even though it may otherwise have been in the record. In Lee, the court pointed out that the evidence relied on by the State was not attached to the bills of exception, thus the court could not consider it, the only facts or circumstances considered by the court were those contained in a brief per curiam submitted by the trial court. The per curiam briefly stated that the search warrant authorized a search of 2127 Bienville Street, City of New Orleans. The officer, upon arriving at the residence, noted that the number 2127 was incorrect and should have been 2123. After a telephone call to the judge, the number was changed. The court noted that the change appeared to have taken place after the search. The court held that the procedure used to change the number was improper, rendering the change ineffective. Therefore, the warrant, as originally prepared, authorized the search of a specific incorrect municipal number. There was no further description of the property before the court for consideration. The court felt that an officer armed with a warrant containing only a municipal number had no right to search a residence containing another number. A warrant containing only an erroneous municipal street number, without more (as was presented in Lee) does not meet the test of Korman which requires the description to be such that there is no reasonable probability that the executing officers would search the wrong premises.

In the case at hand, the physical description and location of the premises was set forth. Under these circumstances, there was no reasonable probability that Officer Dyer would search the wrong premises. This officer searched where he intended to search. Defendant’s motion to suppress is without factual or legal substance and was properly denied.

For these reasons, the writ previously issued is recalled. The ruling of the trial court is affirmed. The case is remanded for further proceedings according to the views expressed herein and according to law.

WRIT RECALLED AND REMANDED.

      . Subsequent search warrants were issued, which resulted in the seizure of further contraband and in the issuance of other charges against the defendant. We are not concerned in this instance with those search warrants and/or seizures.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Frank JOHNSON, Jr., Plaintiff-Appellant, v. Richard D. LAYSSARD, et al., Defendants-Appellees.
    No. 84-596.
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 1984.

      J. Wendell Fusilier, Ville Platte, for plaintiff-appellant.
    David Hughes, of Gist, Methvin, Hughes & Munsterman, Alexandria, for plaintiff-appellee.
    Trimble, Percy, Smith, Walker, Wilson, Foote & Walker, Gregory H. Walker, Gold, Little, Simon, Weems & Bruser, Christine Frank, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   FORET, Judge.

MOTION TO DISMISS

The defendants-appellees, Jarwin Contracting Company and Hartford Casualty Insurance Company, move to dismiss the appeal of plaintiff-appellant, Frank Johnson, Jr., as not being timely perfected.

On September 9, 1983, a civil jury rendered its verdict, dismissed plaintiffs demands against Jarwin Contracting Company and Hartford Insurance Company but rendered judgment against co-defendants, Richard D. Layssard and Reliance Insurance Company in the amount of three thousand ($3,000.00) dollars. Formal judgment was signed in conformity with this verdict on November 15, 1983.

The plaintiff timely filed a “motion for a judgment notwithstanding the verdict and/or for an additur of damages and/or for a new trial in the alternative.” On December 12, 1983, after the motions were argued, the trial judge denied the motions as to Jarwin Contracting Company and Hartford Insurance Company but took under advisement the motion as to Richard D. Layssard and Reliance Insurance Company. After handing down written reasons on January 13, 1984; in a “judgment on rule” dated March 2, 1984, and in an “amended judgment on rule” dated March 13, 1984, the trial court confirmed the dismissal of the motions as to Jarwin and Hartford, granted an additur against Richard D. Layssard and Reliance Insurance Company, and granted a new trial in the event the additur was not accepted. On March 19, 1984, the plaintiff obtained an order granting a devolutive appeal against Jarwin and Hartford who now have filed a motion to dismiss the appeal as being untimely perfected.

Defendants-appellees cite Article 2087 of the Louisiana Code of Civil Procedure which provides:

“... and appeal which does not suspend the effect or the execution of an appeala-ble order or judgment may be taken within sixty days of:
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; ...”

They argue that since the appeal was taken on March 19, 1984, more than (60) sixty days after the court’s denial on December 12, 1983, of plaintiffs motion for a new trial; the appeal was untimely.

The judgments signed on March 2 and March 13 of 1984, however have an effect on the timeliness of the appeal. According to recent jurisprudence the application for a new trial holds a previously signed judgment in abeyance as to all parties until final judgment is rendered. The delays for taking a devolutive appeal can not begin to run until such a final judgment is signed. (Our emphasis). Bantin v. State, Through Dept. of Transp., Etc., 411 So.2d 63 (La. App. 3rd Cir.1981); Billeaud v. Perry, 336 So.2d 539 (La.App. 3rd Cir.1976).

Although the trial court orally denied the motions as to Jarwin and Hartford on December 12, 1983, it did not rule on the motion as to the co-defendants, Layssard and Reliance, until March 2 and March 13 of 1984. Until the motions as to all parties had been decided, the delays for taking the devolutive appeal did not begin to run. The appeal was, thus, timely filed on March 19, 1984, within (60) days of the ruling on the motions. The motion to dismiss the plaintiff’s appeal is denied.

MOTION DENIED.


text:
    Frank JOHNSON, Jr., Plaintiff-Appellant, v. Richard D. LAYSSARD, et al., Defendants-Appellees.
    No. 84-596.
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 1984.
    J. Wendell Fusilier, Ville Platte, for plaintiff-appellant.
    David Hughes, of Gist, Methvin, Hughes & Munsterman, Alexandria, for plaintiff-appellee.
    Trimble, Percy, Smith, Wilson, Foote & Walker, Gregory H. Walker, Gold, Little, Simon, Weems & Bruser, Christine Franks, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   FORET, Judge.

MOTION TO DISMISS

The defendant-appellees, Jarwin Contracting Company and Hartford Casualty Insurance Company, move to dismiss the appeal of intervenor-appellant, Colfax Creosoting Company, as not being timely perfected.

Suit was brought by Frank Johnson, Jr., for personal injuries he received in an accident. Made defendants were Richard D. Layssard and his insurer, Reliance Insurance Company as well as Jarwin Contracting Company and its insurer, Hartford Insurance Company. Colfax Creosoting Company intervened to recover the worker’s compensation benefits and medical expenses it was obligated to pay plaintiff under the Louisiana Worker’s Compensation laws.

On September 9, 1983, a civil jury rendered its verdict on this matter, dismissed the demands of plaintiff and intervenor against Jarwin and Hartford but rendered judgment against co-defendants, Richard D. Layssard and Reliance in the amount of $3,000.00. Formal judgment was signed in conformity with this verdict on November 15, 1983.

The plaintiff and intervenor timely filed a “motion for a judgment notwithstanding the verdict and/or for an additur of damages and/or for a new trial in the alternative.” On December 12, 1983, after the motions were argued the trial judge denied the motions as to Jarwin and Hartford but took under advisement the motion as to Richard D. Layssard and Reliance Insurance Company. After handing down written reasons on January 13, 1984, in “judgment on rule” dated March 2, 1984, and in an “amended judgment on rule” dated March 13, 1984, the trial court confirmed the dismissal of the motions as to Jarwin and Hartford, granted an additur against Richard D. Layssard and Reliance Insurance Company, and granted a new trial in the event the additur was not accepted. On June 28, 1984, intervenor obtained an order from the district court granting it an appeal against Jarwin and Hartford who now have filed a motion to dismiss the appeal as being untimely perfected.

Defendant-appellees cite Article 2087 of the Louisiana Code of Civil Procedure which provides:

“... an appeal which does not suspend the effect or the execution of an appeala-ble order or judgment may be taken within sixty days of:
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; .... ”

They argue that since the appeal was taken on June 28, 1984, more than (60) sixty days after the courts denial on December 12, 1983, of plaintiff’s motion for a new trial; the appeal was untimely.

The judgments signed on March 2 and March 13 of 1984, however, have an effect on the timeliness of the appeal. According to recent jurisprudence the application for a new trial holds a previously signed judgment in abeyance as to all parties until final judgment is rendered. The delays for taking a devolutive appeal can not begin to run until such a final judgment is signed, (our emphasis). Bantin v. State, Through Department of Transportation & Development, 411 So.2d 63 (La.App.3rd Cir.1981); Billeaud v. Perry, 336 So.2d 539 (La.App.3rd Cir.1976).

Although the trial court orally denied the motions as to Jarwin and Hartford on December 12, 1983; it did not rule on the motion as to the co-defendants, Layssard and Reliance, until March 2 and March 13 of 1984. Until the motions as to all parties had been decided; the delays for taking the devolutive appeal did not begin to run.

Since the motion for a new trial as to Layssard and Reliance was taken under advisement, Article 1914 of the Louisiana Code of Civil Procedure applies as follows:

“Art. 1914. Interlocutory order or judgment when case under advisement; notice; delay for further action when notice required
A. When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order of judgment rendered thereafter.
B. The clerk shall mail notice of the rendition of the interlocutory order or judgment to the counsel of record for each party and to each party not represented by counsel; and each party shall have ten days from the date of the mailing of the notice to take any action or file any pleadings as he deems necessary, except as provided in the next Paragraph.
C. If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of the notice, as provided in Articles 2087 and 2123.
D. The provisions of this Article do not apply to an interlocutory injunctive order or judgment.

Amended by Acts 1983, No. 61, § 1. According to this article, once notice of the rulings on the motions were sent to the parties, the delay for the appeals began to run. The record reveals that notice of the rulings of March 2 and March 13 of 1984 was not sent to intervenor. The appeal delays have not begun to run and, thus, the appeal filed on June 28, 1984 was timely. The motion to dismiss the appeal is denied.

MOTION DISMISSED.


author: PER CURIAM.

text:
    Theron FOSTER v. Lee T. WESLEY, Fred D. Reed, Ernest L. Johnson and Melvin Hodges.
    No. CE 84 0798.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 1984.

      Donald Fuselier, New Iberia, for plaintiff-appellee Theron Foster.
    Eddie J. Jordan, Jr., Baton Rouge, for defendant-appellant Fred D. Reed.
    Before LOTTINGER, PONDER, COLE, WATKINS, SHORTESS, CARTER, SA-VOIE, LANIER, CRAIN and ALFORD, JJ.

       Covington, Chief Judge and Edwards, J. were absent and did not participate.

   PER CURIAM.

The main issue in this election suit is whether or not appellant, Fred D. Reed, meets the domiciliary requirements for the office of State Representative for the 61st District. The trial court found he did not and we affirm.

The facts of the case are not disputed. Plaintiff is a registered voter, qualified to vote in the special primary election scheduled for June 30, 1984. The purpose of the election is to fill the office of State Representative, District 61, which was vacated upon the death of the late Louis Jetson. Plaintiff named as defendants four individuals who had qualified to run for this seat. He challenged the qualifications of the four candidates on the basis that each had not met the domiciliary requirements. Specifically, plaintiff alleges Fred D. Reed lives some ten miles outside of District 61 and has done so for-more than a year preceding June 12, 1984, the date he qualified as a candidate.

A hearing was held on June 22, 1984 and Mr. Reed stipulated he was domiciled in District 66 rather than in District 61. He stipulated further that District 61 had been created, in part, from District 66.

In order to qualify for a legislative seat, a candidate must (among other things) have been domiciled for the preceding year in the legislative district which he seeks to represent. La. Const. art. III, § 4(A). However, appellant argues he is entitled to take advantage of the exception set forth in § 4(B) which reads as follows:

“However, at the next regular election for members of the legislature following legislative reapportionment, an elector may qualify as a candidate from any district created in whole or in part from a district existing prior to reapportionment if he was domiciled in that prior district for at least one year immediately preceding his qualification and was a resident of the state for the two years preceding his qualification. The seat of any member who changes his domicile from the district he represents or, if elected after reapportionment, whose domicile is not within the district he represents at the time he is sworn into office, shall be vacated thereby, any declaration of retention of domicile to the contrary notwithstanding.”

We note this exception applies only to the “... next regular election for members of the legislature.” We take judicial notice of the fact that the reapportionment of the districts involved, Districts 61 and 66, took place in 1982. The next regular election was the general election of November 19, 1983. The article creates only a limited exception to the usual domiciliary requirements. The exception is not applicable to the present election.

Appellant argues that because this particular legislative seat .has never been occupied (due to Mr. Jetson’s illness and subsequent death) it should be considered to be the office of a newly reapportioned legislative district. The implication of this argument is that this court should disregard the regular election which took place in 1983 and consider this election to be the first. We simply find no merit to this argument. The words of the constitutional article are clear. The exception applies only to the "... next regular election ... following reapportionment,” which was the election in November of 1983.

Appellant also contends the citation served upon him was invalid in that it did not comply with the specific requirements of Code of Civ.P. art. 1202. We note that objections to service and citation must be raised by the declinatory exception and if not raised prior to appearance, are considered waived. Code Civ.P. art. 925. Appellant contends the insufficiency of the citation was raised at trial. A careful examination of the record reveals this is not the case.

As stated above, this suit originally involved four defendants. One of the defendants, Mr. Wesley, filed a declinatory exception raising the objection of insufficiency of service of process and citation. This was a written exception wherein Mr. Wesley stated he had never been served with a copy of the petition nor cited to appear. At the hearing on the petition objecting to candidacy all four defendants appeared, each with separate counsel. Mr. Wesley’s exception was considered first and the court dismissed the case against him because it found he had not been served. At this point the record contains a reporter’s note which reads as follows:

“An oral motion to dismiss was made in behalf of Ernest L. Johnson, and joined in by all remaining defendants; argument was had by counsel and the matter submitted to the Court.”

The court then addressed the issue of the lack of a written order attached to the petition and then denied the motion to dismiss “... on that ground.”

We conclude appellant waived his right to contest the sufficiency of the citation. In order to raise this objection he should have filed a written exception prior to appearance, or at the very least, made a specific oral objection with leave of court to provide the written pleading. We cannot consider the vague reference quoted above to be a sufficient objection raising the decli-natory exception. For this reason we will not consider appellant’s argument concerning the insufficiency of citation.

The judgment of the trial court is affirmed. Costs are to be paid by appellant.

AFFIRMED.

      . Suit against Mr. Wesley was dismissed due to lack of service of process. The record does not indicate the disposition of the case as to Ernest L. Johnson and Melvin Hodges. There is no judgment against them in the record.

      . See, Toldson v. Fair, 374 So.2d 759 (La.App. 2d Cir.1979), writ denied, 375 So.2d 1182 (La.1979).

      . See, La.Code Civ.P. art. 924.


text:
    COLT INDUSTRIES, d/b/a Holley Carburetor, Self-Insured, v. Thelma WILLIAMS.
    No. 54305.
    Supreme Court of Mississippi.
    July 18, 1984.
    William M. Chaffin, Holcomb, Dunbar, Connell, Tollison, Khayat, Chaffin & Willard, Clarksdale, Frank S. Cantrell, James H. Stock, Jr., Etrula R. Trotter, Memphis, Tenn., for appellant.
    Briggs Smith, Smith & Phillips, Bates-ville, for appellee.
   Appeal from Circuit Court, Yalobusha County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    Thomas Earl BEDGOOD v. Judy Almond BEDGOOD.
    No. 54980.
    Supreme Court of Mississippi.
    July 18, 1984.
    Robert M. Koestler, Vicksburg, for appellant.
    Oscar P. LaBarre, LaBarre & LaBarre, Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

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

AFFIRMED.


text:
    Albert L. BROWN v. STATE of Mississippi.
    No. 54898.
    Supreme Court of Mississippi.
    July 18, 1984.
    J.W. Kellum, Sumner, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Tallahatchie County; George C. Carlson, Judge.

Before ROY NOBLE LEE, P.J., and BOWLING and SULLIVAN, JJ.

AFFIRMED.

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


text:
    Thomas A. HIMES, Sr. v. Sally L. HIMES.
    No. 54949.
    Supreme Court of Mississippi.
    July 18, 1984.
   Appeal from Chancery Court, Jefferson County; Frank W. Walden, Chancellor.

Robert C. Connor, Jr., Connor & O’Keefe, Port Gibson, for appellant.

Mark W. Prewitt, Prewitt & Courteau, Vicksburg, for appellee.

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

AFFIRMED.


author: ROY NOBLE LEE, Presiding Justice,

text:
    Thomas Peyton EDWARDS, Jr. v. Linda F.W. JAMES.
    No. 54953.
    Supreme Court of Mississippi.
    July 18, 1984.
    L.J. McKinney, Jr., Wallace & Dean, Columbus, for appellant.
    L. Marshall Goodwin, Jordan & Wool-bright, Columbus, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

The Family Court of Spartanburg, South Carolina, entered a consent decree on December 13, 1972, divorcing Thomas Peyton Edwards and Linda F.W. James (Edwards) and fixing support for a minor child of the parties at $50.00 per month to be paid by Edwards. Subsequently, on March 16, 1982, Linda James filed a petition for modification of the decree in the Chancery Court of Lowndes County, averring that Thomas Edwards was able to pay $350.00 per month support for the child and that there had been a material change in circumstances surrounding the child and the parties. Edwards filed a handwritten pro se answer to the petition for modification, setting out his inability to pay additional support.

The docket setting for the April 1982 Term of the Lowndes County Chancery Court occurred on Monday, April 12, 1982, at which setting James did not appear to request a trial setting. The record is not clear whether Edwards was present for the docket call.

On April 19, 1982, the lower court issued a fiat setting 1:30 p.m., April 29, 1982, for hearing the modification petition and a petition to cite for contempt. On that date, viz., April 29, 1982, the court proceeded with hearing the modification petition in the absence of Edwards, increased the child support payments to $175.00 per month, and awarded $200.00 for James’ attorney’s fees.

On July 1, 1982, Edwards filed a petition to set aside the April 29, 1982, order modifying the original decree and increasing child support, and, on September 23, 1982, James filed a petition to cite Edwards for contempt because of his failure to make the $175.00 support payments. An agreed order was entered setting December 16, 1982, for hearing the contempt citation and the petition to set aside the decree. Edwards filed an answer on November 16, 1982, setting out as an affirmative defense that the order of April 29, 1982, was entered without notice to him and that he was denied due process of law when the hearing proceeded in his absence. The petition to set aside the April 29, 1982, order was overruled and Edwards has appealed to this Court with supersedeas.

Edwards assigns as error that he was not given notice of the April 29,1982, modification hearing and, therefore, was not afforded an opportunity to appear and present his defense. James does not deny that Edwards failed to receive notice of the hearing. We address only that question.

The Mississippi Rules of Civil Procedure pertinent to the question follow:

Rule 40(b)
(b) Notice. The clerk shall, at least twenty days prior to the date cases will be set for trial, notify all attorneys of record of the time and date the trial calendar will be set. After setting, the clerk forthwith, and in no event more than three days after an action has been placed on the trial docket, shall notify all attorneys of record of trial settings by mailing a copy of the docket of the court.
Rule 81(d)
(d) Domestic Relations. Complaints, petitions, or motions for temporary relief pending a divorce or separation action, for modification of custody, support, and alimony judgments, and for enforcement of such judgments by contempt proceedings or otherwise, shall be governed by the provisions of these rules as to motions.
Rule 6(d)
(d) Time: Motions. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

James cites Campbell v. Campbell, 357 So.2d 129 (Miss.1978), and takes the position that the divorce was originally granted by a South Carolina court; that the parties were not under the jurisdiction of the Mississippi court upon filing the petition; and that Rule 6(d) does not apply. In Campbell, a Mississippi chancery court granted a divorce, together with support payments, and the respondent subsequently moved to the State of Iowa. Upon filing the modification petition in the Mississippi court, publication was made for the respondent in Iowa. We held that jurisdiction of the Mississippi court is a continuing jurisdiction and publication was sufficient notice. In the case sub judice, the record is uncontradicted that Edwards had no notice of the special setting on the petition to modify the decree. Campbell is not applicable. James commences this action by filing her bill to modify. Rule 81(d) requires that the procedural aspects of the case be governed by the provisions of the Civil Rules relating to motions. One of those provisions is Rule 6(d) which placed upon James and her attorney the obligation to serve upon Edwards notice of the April 29, 1982, hearing not later than five (5) days before April 29, 1982. James did not do this and the record does not indicate that any of the notice rules were complied with.

James also argues that all the information pertinent to Edwards’ defense was contained in his handwritten answer and the outcome would have been the same. This argument is not well taken. Even though the result might have been the same, Edwards, and every other defendant or respondent, has the right to notice in a court proceeding involving him, and to be present, and to introduce evidence at the hearing. That valuable right was denied Edwards and requires that the April 29, 1982, decree of the lower court modifying the original South Carolina decree be vacated, and the case be remanded for a new trial on its merits.

REVERSED AND REMANDED.

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

PRATHER, J., not participating.

      . The order referred only to the petition for contempt and not to the modification petition.

      . Also the fiat dated April 19, 1982, setting the hearing for April 29, 1982.


author: PATTERSON, Chief Justice,

text:
    Carrie Mae SHEDWICK v. STATE of Mississippi.
    No. 54261.
    Supreme Court of Mississippi.
    July 18, 1984.

      Joe C. Webster, Charles E. Webster, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Coahoma County, Carrie Mae Shedwick was tried on a charge of murder and convicted of manslaughter. The Court sentenced her to serve a term of twelve (12) years in the custody of the Mississippi Department of Corrections with five (5) years suspended.

Shedwick appeals, assigning as error that the trial court:

1. Allowed into evidence a transcript of the tape recorded statement of Shedwick;

2. Overruled Shedwick’s motion to reduce the charge to manslaughter; and

3. Overruled Shedwick’s motion for directed verdict.

The State’s case is based primarily on a statement given by Shedwick shortly before midnight on March 14, 1982, a brief time after Timothy Dukes died of a stab wound to the chest. The defense stipulated the statement was freely and voluntarily given after Shedwick had been advised of her rights. Because there was no other testimony as to the homicide, we refer extensively to appellant’s statement.

The taped recording of the statement was played from the witness stand so it could be heard by the jury. Additionally, the jury was given transcripts of it to aid them in understanding the tape. Later this transcript was admitted into evidence.

Shedwick’s statement, which is often rambling and disjointed, reveals the following facts:

The night of March 14, 1982, Carrie Shedwick and her live-in boyfriend, Timothy Dukes, spent a stormy evening together that was apparently indicative of their three year relationship. Early that night the couple left their home in Friars Point and accompanied some friends and relatives to a cafe called Junior Chase’s Place in Coahoma. While there one of Shed-wick’s former boyfriends made an appearance. This upset Dukes, who was by this time intoxicated. Outside the cafe, Dukes “swung at” Shedwick and put his hands around her neck.

Shedwick and Dukes then drove to B.B.’s Place, in Friars Point. Shedwick remained in the car while Dukes entered the cafe. She stated, “And then he left out and went down the streets. And I went in there to see what my Auntie wanted.” Having remained at B.B.’s approximately ten or fifteen minutes, Shedwick, along with her sister, aunt, and a friend, walked down the street to the Black Cat Inn.

And Timmy walked out the back of the cafe. I didn’t know he was in there. He walked out the back and he slapped me across this side of my face. And I asked him, I said Timmy I said why you slap me. He said cause you think you smart. I said what I did now. I said you always accuse me but you don’t never tell me what I did.

When Shedwick stated she was ready to go home, Dukes “snatched” her off a stool and said “I ain’t taking you no damn where.” He then got into his car and departed.

Fearing that if she went to her own house Dukes would “jump on” her, Shed-wick asked her sister to drive her to her mother’s house.

Upon arriving there Shedwick found the family in bed except for her cousin Mari-lyne Pryor. A short time later Shedwick’s mother came into the kitchen and started a conversation with Shedwick.

She said what’s wrong with you? I said nothing. Said you and Timmy must have been into it. I said yeah. She said well, then, what you crying for? I said nothing. She said did he hit you? I said naw he didn’t hit me. And so then she ask me, she say, well, I, no, she told em. She said I’m going to bed. She said I don’t feel like being upset. She said I hope Timmy don’t come here and start no mess. I said I hope he don’t either.

Shedwick’s mother then returned to her bedroom. While Pryor and Shedwick sat in the kitchen talking, they heard Dukes’ car pulling into the driveway. “I said Marilyne I say give me the knife out the drawer I say in case Timmy want to jump on me. I said cause I’m tired and I can’t take no more.” Shedwick put the knife under her skirt, and Pryor answered the door.

Then when he came in the house, he looked around. He say what’s up Mari-lyne. Marilyne say nothing. He said you think you smart. He said I’m gonna kick your ass like that. He pointed his finger at me. I didn’t say nothing, nothing to him.... All I wanted him to do is not to jump on me. And so by that time he jumped up and he said, well, I’m fixin’ to go. I said well, go ahead on, just leave me alone. And he pushed me. And I took a glass, a glass jar my mama had sitting on the cabinet. I opened the door after he went out and I threw the glass jar at him. It broke on the car-porch. He turned around for to come back in and then I told him, I said Timmy just go ahead on. And he kept pushing me. I said Timmy why don’t you stop? And he kept pushing me. I said Timmy what’s wrong with you? I said who done gave you something like that? • He said I ain’t had nothing. He said I feel good. I said Timmy, I said, what’s wrong with you? What you done had? Who done gave you some, I kept asking him the same thing over and over like that. And he told me he say, bitch, he said I’m gonna kill you. He said I’m gonna be the death of you like that. I said Timmy, I said what have I did to you tonight? He said you ain’t did nothing to me, I just don’t like the way your ex-boyfriend talking about whipping my ass.

Shedwick and Dukes continued their altercation in the carport. At one point Dukes threw Shedwick against the wall and attempted to choke her.

And I asked him, I said Timmy what’s wrong with you? And he kept on saying I’m gonna ... you up. Like that. He kept saying it over and over again. I said Timmy I said I’m tired of you jumping on me. I said you done beated me with boards and did everything you wanted to me. I said what have I did to you? And then he said well, I’m sorry. I won’t do nothing else to you. He said all I want you do is go home with me. And I wasn’t going home with him cause I know if I had went home with him, Timmy would have killed me or half-killed me one. And so what I did, I was going back up in the house and he came, he pushed me into the door.

Dukes again threw Shedwick against the wall and threatened to kill her. “I said Timmy, I said why? and I said I’m tired. And I just went into him, you know, with that knife. I was gonna cut him, you know, like down side here. But then I went into him like this.”

It may be inferred that Marilyne Pryor informed Shedwick’s father, Simmie Smith, that Dukes had been stabbed. Smith and Shedwick rushed Dukes to the hospital, but he died shortly after the wound was inflicted.

Shedwick stated that because she was angry and scared, she had intended to slash Dukes with the knife but not to stab him to death.

Shedwick cites no authority for her first proposition, that the trial court erred in allowing the transcript of the statement to be admitted into evidence. However, she contends the court should find merit in this argument because she was prejudiced by the fact that the jury was allowed to take the transcript into deliberation.

The state argues this assignment is procedurally barred since it is unsupported. Johnson v. State, 154 Miss. 512, 122 So. 529 (1929). However, we dispose of Shed-wick’s proposition by observing the admission of the transcript into evidence probably benefitted Shedwick as much as it prejudiced her in that it contains many references to Dukes’ verbal and physical abuse of her prior .to the stabbing. It also contains Shedwick’s statements that she did not intend to kill Dukes. We are therefore of the opinion this proposition is meritless.

Shedwick next argues the court erroneously overruled her motion to reduce the charge to manslaughter and thereby eliminate the charge of murder from the jury’s deliberation.

We have held many times that “One convicted of manslaughter may not on appeal complain of an instruction dealing with murder, even if erroneous.” Carter v. State, 402 So.2d 817, 819 (Miss.1981); Moss v. State, 386 So.2d 1129 (Miss.1980); Hull v. State, 350 So.2d 60 (Miss.1977). However, we do not reach this line of cases because we are of the opinion there was evidence to support the murder instruction.

Shedwick’s statement reveals Shed-wick threw a jar at Dukes while he was in the carport preparing to leave her mother's house thereby reopening the altercation. Further, Shedwick left Dukes in the carport, returned to the kitchen for the knife, and walked back to the carport where she later stabbed him. Considering these facts, we do not think the trial court committed error in permitting the jury to consider whether Shedwick was guilty of murder.

Finally, Shedwick cites Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), for the proposition that the trial court erred in overruling her motion for a directed verdict. That case held that,

... where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
165 Miss. at 209, 147 So. at 482.

We find no contradiction of Shedwick’s account of the homicide in terms of testimony by state’s witness, physical facts, or the facts of common knowledge. Rather, the problem lies not so much in determining whether the court should have accepted Shedwick’s version but in ascertaining exactly what that version is. Various portions of Shedwick’s statement convey two different impressions: (1) that she killed Dukes in the heat of a physical battle which made her afraid for her life; and (2) that she stabbed him because she was angry with him and could no longer tolerate his treatment of her in general. Because Shedwick in a sense contradicts herself, we are of the opinion the trial court did not err ■in submitting the case to the jury to allow them to decide the factual issues.

We are of the opinion the record contains no reversible error and the ease should be affirmed.

AFFIRMED.

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


author: SULLIVAN, Justice,

text:
    William G. BURGIN v. MISSISSIPPI STATE BAR.
    Conf. Misc. No. 109-A.
    Supreme Court of Mississippi.
    July 18, 1984.

      Joe 0. Sams, Jr., Thomas L. Kesler, Sams & Kesler, Columbus, for appellant.
    Andrew J. Kilpatrick, Jr., Jackson, for appellee.
   SULLIVAN, Justice,

for the Court:

Petitioner Burgin was admitted to the practice of law in the State of Mississippi on June 2,1947, and practiced in the Courts of this state until being disbarred by this Court by Consent Order dated January 22, 1981, which order related back to September 12, 1979, the date upon which petitioner was originally suspended.

Petitioner was convicted in Cause No. J78-00021(N) in the United States District Court for the Southern District of Mississippi. The conviction was for violation of Section 371 of Title 18 of the United States Code, being the felony of conspiracy to defraud the United States of America. On July 24, 1980, the United States Court of Appeals for the Fifth Circuit affirmed the conviction, as recorded in United States v. Burgin, 621 F.2d 1352 (1980).

Petitioner filed his first Petition for Reinstatement on September 13, 1982. The Bar opposed the Petition, and on December 15, 1982, this Court denied the Petition for Reinstatement. This present Petition for Reinstatement was filed on February 24, 1984, more than one year after the date of the last adverse determination and in accordance with Rule 12 of the Rules of Discipline for the Mississippi State Bar as adopted by this Court on September 7, 1983,

The reinstatement of suspended or disbarred attorneys is governed by Rule 12 of the Rules of Discipline. This is true, even though the Rules may not have been in effect at the time of the suspension or disbarment. Rule 12.6 of the Rules of Discipline provides what jurisdictional matters must be contained in, or proven by a Petition for Reinstatement. This Rule provides as follows:

Contents of Reinstatement Petitions-jurisdictional matters. All reinstatement petitions shall be addressed to the Court, shall state the cause or causes for suspension or disbarment, give the name and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct, the making of full amends and restitution, the reasons justifying reinstatement, and requisite moral character and legal learning to be reinstated to the privilege of practicing law ... The matters set out in this paragraph shall be jurisdictional.

Petitioner Burgin takes the position that when he filed his second Petition for Reinstatement the State of Mississippi had taken a voluntary non-suit in its action against him and that he only had information and belief that a new suit had been filed, and that the filing of a new action by the State of Mississippi had been stayed by the trial judge. Based upon these facts, the Petitioner asserts that for the purposes of this Petition he is not indebted to any person or entity, private or governmental, in any manner inconsistent with the requirements for reinstatement to the practice of law.

We find this position to be without merit. First, Petitioner refused process in the second suit filed by the State of Mississippi on the same day this Petition was filed. Further, the voluntary non-suit was granted to the State in the first action against the Petitioner for the purpose of refiling to include new named defendants. It follows that Petitioner knew at the time of the dismissal that the new suit would be filed. Further, the pendency or non-pendency of a suit by the State against the Petitioner is not the sole determining factor on the restitution issue. We need look no further than the opinion in United States v. Burgin, supra, where the Court found that Burgin knew, and had a duty to inform the Department of Public Welfare that the contract could have been entered for much less. He did not. This clearly indicates a direct pecuniary loss to the State of Mississippi. Furthermore, as a direct result of Petitioner’s conviction an audit of the State Department of Public Welfare was done by the office of Health and Human Services and as a result of the audit based upon the conviction, and the negotiations between the Department of Public Welfare and the Office of Health and Human Services, the amount of disallowances in Title XX contracts now stands at approximately $400,-000.00. If this disallowance stands, the State of Mississippi will suffer a direct pecuniary loss of that amount as a direct result of the conduct of the Petitioner for which he was convicted.

Rule 12.6 requires that the Petition contain reasons justifying reinstatement. The Rule also requires that the Petitioner maintain the requisite moral character and legal learning to qualify for reinstatement. This Petition is silent as to these requirements. Failure to comply with the requirements of Rule 12 is jurisdictional.

We find that the Petitioner has failed to list all persons, parties, firms or legal entities who suffered pecuniary loss due to his improper conduct. Further, he has made no showing of full amends and restitution to those persons so injured. Petitioner has stated no reason justifying reinstatement and has failed to reference the requisite moral character or to provide information regarding the requisite legal learning to qualify for reinstatement to the privilege of practicing law. This is jurisdictional. The burden of proving that he has rehabilitated himself and re-established the requisite moral character sufficient to entitle him to reinstatement is upon the Petitioner. Ex Parte Marshall, 165 Miss. 523, 147 So. 791 (1933). The fundamental question to be addressed before reinstatement is the attorney’s rehabilitation in conduct and character since the disbarment. Mississippi State Bar Association v. Wade, 250 Miss. 625, 167 So.2d 648 (1964). These issues were not addressed in this Petition and we, therefore, cannot address them.

The Petition for Reinstatement is dismissed.

DISMISSED WITHOUT PREJUDICE.

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

DAN M. LEE and PRATHER, JJ., not participating.


text:
    Tina Dowdle MARKHAM v. Michael Wayne MARKHAM.
    No. 54972.
    Supreme Court of Mississippi.
    July 25, 1984.
    Thomas L. Kesler, Sams & Kesler, Columbus, for appellant.
    Michael Malski, Carnathan & Malski, Amory, for appellee.
   Appeal from Chancery Court, Monroe County; Fred P. Wright, Chancellor.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    PLANHOUSE, INC. (Formerly The House of Plans, Inc.) and Jack B. Hughes v. BRELAND & FARMER DESIGNERS, INC. (Formerly The Plan Shop, Inc.).
    No. 54311.
    Supreme Court of Mississippi.
    July 25, 1984.
    William P. Featherston, Jr., Jackson, for appellant.
    Stephen L. Beach, III, Jackson, for appel-lee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

AFFIRMED.

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


text:
    Frances TIEDT, et al. v. Ronnie SMITH, et al.
    No. 54970.
    Supreme Court of Mississippi.
    July 25, 1984.
    Jeffrey C. Smith, Sims & Sims, Columbus, for appellant.
    Stanley H. Hathorn, Hathorn & Hathorn, Louisville, for appellee.
   Appeal from Chancery Court, Winston County; Edward E. Prisock, Chancellor.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

AFFIRMED.


text:
    E.O. MABRY v. Paul HOWINGTON.
    No. 54957.
    Supreme Court of Mississippi.
    July 25, 1984.
    Lyle V. Corey, Corey & Corey, Meridian, for appellant.
    David W. Dreher, Jackson, for appellee.
   Appeal from Chancery Court, Newton County; Dannye L. Hunter, Chancellor.

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

AFFIRMED.


text:
    Henry Charles MAJORS v. STATE of Mississippi.
    No. 54925.
    Supreme Court of Mississippi.
    July 25, 1984.
    William M. Clower, Jr., Leland, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Gray Evans, Judge.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.

WALKER, ROY NOBLE LEE, PJJ., and BOWLING, HAWKINS, ROBERTSON and SULLIVAN, JJ., concur.


text:
    Barbara Marsh DENNEY (Berry) v. James W. DENNEY.
    No. 54979.
    Supreme Court of Mississippi.
    July 25, 1984.

      James Ed Brown, Starkville, for appellant.
    George McKee, Starkville, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

The Chancery Court of Webster County, Mississippi, W.W. Brand, Jr., Chancellor, denied appellant’s petition for citation for contempt and denied appellant’s petition to modify prior decree to grant unto appellant custody of her three minor children, but did modify the prior decree to change visitation. Appellant appeals this decision.

We affirm.

These parties were divorced on December 17, 1981, and by agreement appellee received the permanent care, custody and control of the three minor children of the parties. Appellant was awarded visitation on every weekend. Appellee was ordered to pay certain medical bills of the children. On March 12, 1982, appellant remarried and at the same time filed a petition to cite appellee for contempt of court for failure to reimburse her for certain medical payments and for denial of visitation privileges. Thereafter, appellant filed a petition to modify the prior decree seeking custody of the three children. The cases were tried together and at the conclusion of the hearing the chancellor found that the appellant had failed to sustain the burden of proof necessary to find the appellee in contempt of court and had failed to show a material change in circumstances adverse to the best interest of the children necessitating a change in custody. The chancellor further found, however, that the agreed upon visitation schedule was not in the best interest of the children and accordingly modified the scheduled visitation rights of the appel-lee.

Appellant presents two issues to be determined by this Court: (1) Did the chancellor commit manifest error and abuse his discretion by failing to find from the evidence a material change of circumstances which was materially and adversely affecting the children’s welfare? and (2) Did the chancellor err and abuse his discretion in refusing to accept the undisputed expert testimony of Dr. James Lane, a clinical psychologist, and the reasonable inferences to be drawn therefrom, as proof of a material change of circumstances and substantial evidence of an adverse effect on the children’s welfare?

Appellant is mistaken on both counts. In a well-reasoned opinion the chancellor carefully considered all of the evidence and properly applied the law to those facts. There was no error.

There was no material change in circumstances that adversely affect the children. Bowden v. Fayard, 355 So.2d 662 (Miss.1978); Ballard v. Ballard, 434 So.2d 1357 (Miss.1983). The best interest of the children dictated the action taken by the chancellor. Buntyn v. Smallwood, 412 So.2d 236 (Miss.1982).

As stated in Cheek v. Ricker, 431 So.2d 1139 (Miss.1983), the findings of fact of a chancellor will not be set aside unless manifestly wrong. Such is not the case here.

AFFIRMED.

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


author: ROBERTSON, Justice,

text:
    Roosevelt FROST v. STATE of Mississippi.
    No. 54835.
    Supreme Court of Mississippi.
    July 25, 1984.
    John T. Lamar, Jr., Lamar & Lamar, Senatobia, for appellant.
    Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

Early in the summer of 1981 Roosevelt Frost broke and entered the dwelling of an elderly woman who lived alone. Later that summer, Frost entered the dwelling of another elderly woman who lived alone. Each incident occurred late at night. Each found Frost making unsolicited and wholly resisted sexual advances to his victim.

Frost has now been tried and convicted of burglary for each occasion and attempted rape for the second. He has been given an effective aggregate sentence of 20 years in the custody of the Mississippi Department of Corrections.

Frost’s sole defense at trial was his assertion that he was insane at the time he committed the acts in question. The issues presented on this appeal likewise arise out of the insanity defense.

Finding no error, we affirm.

II.

A.

On July 18, 1981, at some time between 2:30 and 3:00 a.m. Olivia Clayton, 73 years of age, was alone at her home on Austin Road in DeSoto County. Roosevelt Frost appeared unexpectedly, yanked the screen off the window and broke into her home. Frost threatened Ms. Clayton with rape and advanced toward her. A scuffle ensued, in the course of which Ms. Clayton grabbed a chair at the foot of the bed and hit Frost with it. Frost fled. Ms. Clayton called the police who arrived approximately an hour later.

Almost two months later a similar incident occurred in the same locality. Ms. Ella Sloan, also 73 years old, had just gone to bed. Suddenly the door to her room flew open and a man ran in and grabbed her and told her he was going to rape her and kill her. At trial she identified Frost as her assailant. Ms. Sloan resisted mightily as Frost pursued his felonious purpose. Her resistance was successful and Frost ultimately stumbled out of the house.

On September 14, 1981, Frost was arrested in connection with the Sloan burglary and attempted rape. The following day he confessed all.

B.

In November of 1981 Frost was formally charged in three separate indictments (1) with the burglary of the dwelling of Ms. Clayton in violation of Miss.Code Ann. § 97-17-21 (1972); (2) with the attempted rape of Ms. Sloan in violation of Miss.Code Ann. § 97-3-65 (1972); and (3) with the burglary of the dwelling of Ms. Sloan again in violation of Miss.Code Ann. § 97-17-21 (1972).

Prior to trial, Frost filed a suggestion of insanity in each case. He then filed a motion that the trial of the charges in all three indictments be consolidated. The motion to consolidate recited that Frost did not deny the acts charged but that all were committed at a time when he was legally insane. The motion further recited that

“This single defense is completely and equally applicable to these offenses in said causes. The trial of this case will require expert testimony from psychiatrists and psychologists in which testimony will be applicable to all defenses.”

The state having interposed no objection, the motion for consolidation was granted.

The three consolidated cases were called for trial in the Circuit Court of DeSoto County, Mississippi on Monday morning, February 14, 1983. At the conclusion of the testimony, the jury returned a verdict of guilty as charged on all three indictments.

The Circuit Court sentenced Frost, then 26 years of age, to a term of ten years for the offense of the attempted rape of Ms. Sloan, ten years for the burglary of her dwelling, that sentence to be served consecutively to the sentence imposed for the attempted rape charge, and ten years for the burglary of the dwelling of Ms. Clayton, that sentence to be served concurrently with the ten year sentence imposed on the other burglary conviction.

This appeal has followed.

III.

Frost assigns as error the Circuit Court’s ruling allowing a law enforcement officer to testify regarding Frost’s words of remorse stated in connection with his confession. Frost relies heavily on our decision in Harrelson v. State, 217 Miss. 887, 65 So.2d 237 (1953). Upon careful consideration, the Harrelson case is inapposite and the assignment of error is not well taken.

During direct examination of the law enforcement officer who took the incriminating statement from Frost, the following colloquy took place.

“Q. All right, do you have any recollection that’s different from what shows on the statement?
A. Well, there were some comments that weren’t put in . there; some things, like, you know, he was telling he was sorry he did it, and I think he may have even had a tear in his eye.
Q. All right, sir, let me ask you about it. Did he show remorse then for what he had done?”

When counsel for Frost objected at this point, the Court sustained the objection— and correctly so. Defense counsel then moved for a mistrial. The Court overruled the motion holding that, where the insanity defense is raised, the Defendant’s behavior at any time surrounding the events of the crime or during the period of time in issue is relevant. Objective manifestations of remorse are probative of M’Naghten sanity. When direct examination of the witness was resumed, the following dialogue took place:

“Q. I believe the last question I asked you, Russ, was did the defendant show any signs of remorse? Go ahead.
A. Yes sir, he was — like I say, he was tearful, he was saying, you know, he was sorry that he did it; he didn’t know why he did it and things of that nature were all throughout the statement. I just didn’t see to write everything down word for word.”

Frost’s statement was then introduced into evidence without objection.

The above testimony is quite different from that found objectionable in Harrel-son. Harrelson was a murder case. Defendant argued that the shooting was accidental and that his initial statement so indicated. During the direct examination of the sheriff, the prosecutor elicited the following answers:

“Q. When you first saw him, state whether or not the defendant was showing any signs of grieving?
(Objection)
A. He was not.
Q. What expression did he have on his face.
(Objection)
A. He was sitting in a normal position with a normal expression on his face.”

Another witness testified that he did not see the Defendant manifest any signs of grief either. Neither witness for the state related any basis for their opinions that the Defendant was experiencing no remorse.

Acknowledging it to be a matter of common knowledge that some people undergo sorrow or bereavement with composure, the Court correctly reversed Harrelson’s conviction. The Court held that lay opinion testimony unsupported by observed objective behavior was inadmissible.

This case is the other side of the Harrelson coin. Here the law enforcement officer described observable facts. Frost told him that he was sorry for what he had done. He shed a tear. Though such conduct certainly suggests remorse, the objective facts and not the suggestion of remorse are what are admissible. The witness may tell what he observed and, in this instance, may tell what he heard. He may not, of course, give an opinion as to what conclusions ought be drawn from his observations.

The insanity defense was not at issue in Harrelson. In Mississippi, of course, a person must be M’Naghten insane, i.e., unable to distinguish between right and wrong, in order to be not guilty by reason of insanity. Laney v. State, 421 So.2d 1216, 1218-1219 (Miss.1982). Actual expressions of remorse such as the ones at issue here would be probative of whether a Defendant knew the difference between right and wrong at the time he committed the crimes. For these reasons, the assignment of error is without merit.

IV.

We have carefully reviewed the evidence in this ease to determine whether it supports the jury’s verdict of guilty. That verdict, of course, in reality was a rejection of the insanity defense tendered by Frost.

In support of his insanity defense, Frost called two articulate and highly-skilled clinical psychologists. These were Dr. Stephen H. Allison of Memphis, Tennessee (and in association with the Regional Mental Health Center in Hernando, Mississippi), and Dr. William G. Johnson (who is associated both with the University of Mississippi Medical Center in Jackson and the Mississippi State Hospital at Whitfield). These two psychologists solidly stated opinions that Frost was suffering from serious mental disorders. The diagnosis given by each: schizophrenia, paranoid type.

The jury was also presented Frost’s history of mental illness. In 1980, Frost and his wife had separated. When his wife filed for divorce, Frost experienced severe depression and was admitted to St. Vincent Hospital in Toledo, Ohio, where he was treated for approximately one month. His illness was severe enough to require shock treatments. In early 1981, Frost was admitted to St. Charles Hospital in Toledo for further treatment for his mental illness. Following his discharge from St. Charles he received drug therapy until early July. Shortly after he discontinued the medication (without physician’s approval), Frost committed the Clayton burglary.

The evidence to the effect that Frost was sane — that is, that he knew the difference between right and wrong — came from three lay witnesses who had observed him in and around the DeSoto County jail. The net effect of the testimony of these individuals was that he was a well-behaved prisoner, gave no trouble, and knew the difference between right and wrong.

Clear rules of law governing our consideration of jury verdicts such as these on appeal are set forth in Groseclose v. State, 440 So.2d 297 (Miss.1983); Lias v. State, 362 So.2d 198 (Miss.1978); and Smith v. State, 245 So.2d 583 (Miss.1971). Those cases recognize that lay testimony such as that received into evidence here may be credited by a jury. They recognize further that, even though the state may offer no expert psychiatric or psychological witnesses and, even though the expert testimony offered by the defense may be persuasive, a jury verdict of guilty based solely upon the lay testimony offered by the state must be upheld. 440 So.2d at 300-01; 362 So.2d at 201; 245 So.2d at 585-86. Here as in other cases we are without authority to order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Rule 5.16(1) and (2), Uniform Criminal Rules of Circuit Court Practice; Winters v. State, 449 So.2d 766, 771 (Miss.1984).

There is in the record before us substantial credible evidence suggesting that, at the times in question, Frost was sane in the M’Naghten sense. The jury’s verdict may not be disturbed.

AFFIRMED.

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

      . M’Naghten’s Case, 10 Clark & F. 200, 8 Eng. Rep. 718 (1843); Harvey v. State, 207 So.2d 108, 110-115 (Miss.1968).


author: ROBERTSON, Justice

text:
    BERKLINE CORPORATION v. BANK OF MISSISSIPPI.
    No. 54939.
    Supreme Court of Mississippi.
    July 25, 1984.
    Winn Davis Brown, Jr., Brown & Rutherford, Southaven, for appellant.
    James Patrick Caldwell, Riley, Weir & Caldwell, Tupelo, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROBERTSON, Justice

for the Court.

I.

Berkline Corporation has brought this action charging that Bank of Mississippi made material misrepresentations regarding the credit worthiness of Furniture City, Inc. Berkline says that it reasonably relied upon these representations and made credit sales of furniture to Furniture City and that it has suffered financial loss in consequence thereof.

The Circuit Court, sitting without a jury, dismissed the action at the end of Berk-line’s proof. Apparently the trial judge was of the opinion that Berkline had to prove fraud on the part of Bank of Mississippi before it could recover. Because our law recognizes in this factual setting a right of recovery upon proof of negligent misrepresentation of material facts reasonably relied upon to the detriment of plaintiff, we reverse and remand for further proceedings.

II.

A.

On June 13, 1978, Don Culbreath and others organized a Tennessee corporation known as Furniture City, Inc. Furniture City proposed to engage in the business of the retail sale of furniture and accessories in the greater Memphis area.

A few weeks later, Furniture City placed an order for the purchase of furniture from Berkline Corporation, a Delaware corporation engaged in the sale of furniture to retailers. This was Berkline’s first business contact with Furniture City, and Berk-line requested credit references. Furniture City's officers furnished the name of Steve Smith, an officer of Bank of Mississippi, Defendant below and Appellee here. Smith then served in the Bank’s branch in Olive Branch, Mississippi.

In late July of 1978, Berkline, acting through its credit manager, Mona Eden-field, contacted the Bank and inquired regarding Furniture City. The Bank’s response was in the form of a letter the contents of which we set forth in full.

BANK OF MISSISSIPPI

in Olive Branch

July 31, 1978

Mona Edenfield

South Central Credit Manager

The Berkline Corporation

One Berkline Drive

Morristown, Tennessee 37814

Dear Ms. Edenfield:

Furniture City, Inc. has an active line of credit with the Bank of Mississippi in the low six figure range. They have two deposit accounts with us. One account is a savings in the low six figure range and the other is a commercial checking account with average balances in the low five figure range. All deposit accounts and credit experience have been handled in a satisfactory manner. The principals of the corporation have, in past experience with our bank, demonstrated sound business judgement. If you have any questions, please feel free to contact us.

Sincerely,

/s/ Steve Smith

Steve Smith

Loan Officer

SS:jh

Berkline also obtained a credit report from the Lyon Furniture Mercantile Agency and another report from Dun and Bradstreet, Inc. Neither report disclosed much and the details of neither are significant here.

Thereafter Berkline honored credit orders from Furniture City and shipped merchandise to Furniture City having an approximate wholesale value of $10,000. As fate would have it, Furniture City did not pay Berkline nor apparently did it pay anyone else, for on December 18, 1978, Furniture City was named guest of honor in a petition for involuntary bankruptcy filed in the United States Bankruptcy Court for the Western District of Tennessee.

In due course Berkline received a modest distribution from Furniture City’s bankrupt estate, leaving an outstanding and unpaid balance of $6,605.79.

B.

On November 5, 1981, Berkline commenced this action by filing its declaration in the Circuit Court of DeSoto County, Mississippi. In its pleadings Berkline charged that the July 31, 1978, letter contained material false statements, that the letter had induced Berkline to extend credit to Furniture City, and that Berkline had suffered loss in consequence thereof. In addition to its claim for actual damages, Berkline charged fraudulent misrepresentation on the part of Bank of Mississippi and demanded punitive damages.

The Bank’s answer admitted that, pursuant to the instructions of Furniture City, Berkline had made credit inquiry of the Bank and that the July 31 letter had been furnished in response. The Bank admitted that Steve Smith was a duly authorized officer in the premises and that he did in fact write the letter in question.

Answering further, the Bank averred that the contents of the letter were true and accurate at the time the letter was written, that it did not intend that Berkline act upon the letter to its detriment, that Berkline in fact relied upon other information obtained from other sources in making its credit decision, along with other defenses not pertinent here.

At trial, in addition to the facts described above, Berkline’s credit manager, Mona Edenfield testified that she called the Bank on December 13, 1978, in an attempt to discuss Furniture City’s default with the Bank’s loan officer, Steve Smith. Ms. Edenfield was advised that Mr. Smith had left the Bank in September of 1978. Ms. Edenfield then talked with a Mrs. Hollings-worth at the Bank and gave the following testimony:

“We questioned her (Mrs. Hollingsworth) concerning the letter we received from the Bank, and at that time she told us there had been no checking and savings account in these amounts that were stated in the letter, and that the Bank was having problems also, and she referred us to the Assistant Vice President and gave us the name of Rick Caldwell. I spoke with him, and he told me at that point that the Bank had an outstanding debt of fifty to sixty thousand dollars, they were having problems, it looked very serious, and, you know, Mr. Smith was not there.”

With its proof essentially in the posture recited above, Berkline rested its case. At that point, Bank of Mississippi moved the Court for entry of an order dismissing the declaration. Grounds for the motion, of course, were the Bank’s contention that Berkline had failed to prove the essential elements of its claim.

After hearing full argument in the matter, the Circuit Judge sustained the Bank’s motion. The Circuit Judge’s bench ruling makes it clear that he regarded the claim as one for fraudulent misrepresentation, and that in order to make out a prima facie case Berkline had to prove “the elements of a fraud case”. Berkline’s declaration together with all claims stated therein were accordingly dismissed and final judgment was entered in favor of Bank of Mississippi. This appeal has followed.

III.

We live in a credit era. Consumers, commercial enterprises and government all operate on credit. Though attended by evils, credit makes possible a level of material well-being and economic prosperity otherwise unapproachable.

A common incident of the extension of credit is the credit reference. Consumers as well as commercial enterprises, when seeking to open a new line of credit, are regularly asked for references. Only the Government of the United States gives neither references nor collateral.

Banking institutions play a vital role in our credit economy. Consumers and commercial enterprises alike regularly give banks as credit references. Common sense suggests that the prospective debtor’s bank will often be better equipped than anyone else to give creditable credit information.

Banks’ motives in serving as credit references can hardly be described as altruistic, though no doubt headaches (including lawsuits such as this) attend the service. The bank gives credit information as an accommodation to its customer. The customer obviously needs credit references in order to conduct his own business on credit. By serving as a reference, the bank incurs its customer’s favor. The bank thus facilitates its customer’s business success and, presumably, receives its own benefits from the customer’s economic longevity.

Again generally speaking, banks know that the credit information they give out will be relied upon. They are in a unique position to know of the customer’s credit worthiness, and they know or reasonably should know that others so perceive them.

We emphasize that the Bank of Mississippi was under no duty to serve as a credit reference for Furniture City. Upon receipt of the original inquiry from Berkline, the Bank was perfectly free to decline to divulge any information. A bank incurs no liability to anyone when it declines to act as a credit reference.

Where a bank, through one of its duly authorized officers or agents, undertakes to supply credit information, arguably gratuitously, the bank and its officers are bound to use the skill and expertise which they hold themselves out to the public as possessing. There is ordinarily no reason why factual information given by the bank should not be accurate. When a bank officer makes representations or omissions of material facts false at the time, and where that officer has not exercised reasonable care and diligence to see that the information dispensed is accurate, the bank may incur a liability.

We note and emphasize here the distinction between facts and opinions. Statements such as that made by loan officer Smith to the effect that Furniture City had an active line of credit in the low six figure range, coupled with two accounts, one in the low six figure range and the second in the low five figure range, are representations of fact which, if false at the time and negligently made, may expose the bank to liability. On the other hand, a mere expression of opinion may not be actionable. Bullard v. Citizens National Bank, 173 Miss. 450, 466, 160 So. 280, 282, suggestion of error overruled, 173 Miss. 470, 471, 162 So. 169, 169-70 (1935).

The law applicable to cases such as this requires that, in order to recover, a plaintiff such as Berkline much allege and prove by a preponderance of the evidence

(a) A misrepresentation or omission of a fact;

(b) That the representation or omission is material or significant;

(c) That in responding to the credit inquiry the bank officer failed to exercise that degree of diligence and expertise the public is entitled to expect of reasonably competent bank officers;

(d) That it reasonably relied upon the bank’s misrepresentation or omission; and

(e) That it suffered damages as a direct and proximate result of such reasonable reliance.

No one Mississippi case has heretofore announced each of the elements of the negligent misrepresentation claim stated above. As all know, however, running deep in our law is the notion that a person must respond where his statements or conduct reasonably induce another to rely to his detriment. Analogous is the rule of promissory estoppel found in Sanders v. Dantzler, 375 So.2d 774, 776 (Miss.1977) and Restatement, Contracts 2d § 90 (1981). Similarly analogous is our doctrine of equitable estoppel. See PMZ Oil Co. v. Lucroy, 449 So.2d 201, 205-207 (Miss.1984). We further rely upon Nevada National Bank v. Gold Star Meat Co., 89 Nev. 427, 514 P.2d 651, 77 A.L.R.3d 1 (1973); Anchor Lumber Corp. v. Manufacturers’ Trust Co., 242 App.Div. 656, 272 N.Y.S. 610 (1934), not because the courts which announced these decisions have any authority in this state but because the legal reasoning they have employed is compelling.

The trial judge was obviously of the opinion that, in order to recover at all, Berkline was required to prove fraud. It is well established in this state that before one may recover on a fraud theory he must prove by clear and convincing evidence knowledge of falsity and an intention to deceive or defraud. See, e.g., Aponaug Manufacturing Co. v. Collins, 207 Miss. 460, 42 So.2d 431 (1949); Gardner v. State, 235 Miss. 119, 130, 108 So.2d 592, 594 (1959); Johnson v. Brewer, 427 So.2d 118, 121 (Miss.1983). To be sure our law does recognize the viability of a claim for fraudulent misrepresentation on the part of a bank in these circumstances, provided the plaintiff alleges and proves by clear and convincing evidence the elements of a fraud claim. See Bullard v. Citizens National Bank, 173 Miss. at 466, 160 So. at 282. As indicated above, however, a plaintiff may also recover on a negligent misrepresentation theory, again, provided he can prove his claim. Because the trial judge proceeded on a fraud theory only, the judgment for the Bank must be reversed and the case remanded for further proceedings.

IY.

Upon remand the proceedings should resume at the point where they terminated at the first trial, except that the trial judge should look with favor upon any motion Berkline may offer to re-open to present evidence which has come to its attention since the first trial.

Today’s decision does not preclude Bank of Mississippi from renewing its motion to dismiss once Berkline has finally rested on its case in chief. Assuming that Bank wished to assert its motion anew, the trial judge should test Berkline’s proof under the rules of law articulated above. Nothing in this opinion should be taken to indicate so much as a whisper as to whether any such motion should be granted or denied.

Without prejudging or in any way attempting to anticipate the trial judge’s ruling, if the Bank’s motion should be denied, the Bank would .then be free to go forward with its evidence and the trial would proceed to conclusion as in the ordinary course.

REVERSED AND REMANDED

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

PRATHER, J., not participating.


author: BOWLING, Justice,

text:
    Martha D. SKELTON v. Abbie LEWIS and Leroy Lewis.
    No. 54328.
    Supreme Court of Mississippi.
    July 25, 1984.

      Landman Teller, Jr., Teller, Chaney & Rector, Vicksburg, for appellant.
    Mark W. Prewitt, Prewitt & Courteau, Vicksburg, for appellees.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   BOWLING, Justice,

for the Court:

This is an adverse possession case pursuant to the ten-year adverse claim requirements under Mississippi Code Annotated, Section 15-1-13 (1972). This case, however, raises different issues from the usual adverse possession case brought before this Court. The question for decision here is the adverse possession requirements necessary to exist before a grantor may claim real property from his grantee; that is, real property that was conveyed under the terms of the deed of conveyance. As hereinafter discussed, we hold that the grantor has a greater burden in proving adverse possession to keep or take away property conveyed to his grantee by proper deed and with proper description.

In 1926 David Lewis and wife, Abbie Lewis, purchased as joint tenants a tract of land in Warren County in the Oak Ridge area from Felix and Bessie Grant. In 1946 the Lewises acquired an additional tract of land from the Grants comprising approximately 147.2 acres. This second purchase was contiguous to the first purchase and was south of the first purchase. At that time, this second purchase was surveyed by W.E. Mallette & Associates, Engineers, and a plat prepared for the Lewises.

On July 12, 1960, David and Abbie Lewis [David, the husband, now being deceased] conveyed by warranty deed the second Grant purchase to Alan G. and Martha B. Skelton. At the time the sale was consummated, the Lewises delivered to the Skel-tons the plat of the property being conveyed that was prepared by Mallett & Associates when the property was purchased by the Lewises in 1946. This plat clearly set out the property lines.

The Oak Ridge area, where all of the property is located, consists of steep hills and hollows, and except for certain low areas it is primarily fit for raising trees and holding the world together. During the time between 1926 and 1946, the Lewis-es had constructed a number of “cross fences” that zig-zagged along the tops of ridges in the entire area owned at that time by them. At the time of the purchase and sale between the Skeltons and Lewises, one of these cross fences ran generally in an easterly-westerly direction across the northwest part of the property conveyed by the description. This resulted in an area of approximately 10-12 acres between the conveyed northern boundary of the Skelton property and the zig-zagging cross fence. This 10-12 acre area is that in controversy in the present suit. Appellant [Mr. Skelton died in 1979] claims the property to the north boundary line set out in her deed description and shown on the Mallett plat delivered to her at the time of the conveyance in July 1960. Appellee Lewis contends that she owns by adverse possession the 10-12 acre area north of the zig-zag-ging cross fence and south of the admittedly northern line of the property conveyed to the Skeltons. The question then is whether or not the Lewises took away or retained part of the land they conveyed to the Skel-tons by adversely claiming that part subsequent to the conveyance.

The status of the legal proceedings is as follows: Appellant Skelton filed her bill of complaint in the Chancery Court of Warren County requesting that appellee Lewis -be enjoined from using the area in question. Lewis filed a cross bill claiming ownership of the land by adverse possession.. The chancellor, after hearing evidence, dismissed the original bill of complaint and granted the prayer for relief in the cross bill by holding that Lewis owned the tract of land by adverse possession. His findings shall be discussed further later in this opinion.

It would serve no purpose to lengthen this opinion by setting out every detail of the evidence under which appellee Lewis claims title by adverse possession. There was some testimony regarding ten or twelve cows of the Lewises’ having access to the area north of the zig-zagging ridge fence. There is testimony about repairs being made to the fence by both parties. The Skeltons did not place a fence along the northern boundary of the property conveyed to them. Mrs. Skelton stated that the type of land and its use prevented the expense of building such a fence, unless necessary. The record shows the property as hereinbefore indicated to be extremely hilly and woody, with the main benefit to be derived being providing shade to cows in the summertime. There was testimony that the Skeltons were interested in keeping the already built zig-zagging ridge fence south of the line in reasonably good condition so that there would be no interference with a small plot of cultivatable land down in the hollow.

There is no testimony to justify a finding that the Skeltons knew that the Lewises were claiming the Skelton’s property to the zig-zagging ridge fence until February 1977 when the Skeltons, after a phone call by Mrs. Lewis, went to the area to see about purchasing further land from Mrs. Lewis. The evidence is abundant that until that day, the Skeltons did not know that Mrs. Lewis was claiming their ten to twelve acres south of the north line conveyed to them by the Lewises. Upon ascertaining from Mrs. Lewis that she was so claiming, the Skeltons refused to negotiate further.

Shortly after the visit described above, the Skeltons went to the expense of constructing a fence along the northern boundary line of the land they had received by warranty deed, proper description and plat in July 1960. Two years after this fence was built, it was destroyed by Mrs. Lewis’ grandson. Shortly after this act, Mrs. Skelton filed her suit for injunctive relief.

The chancellor rendered his opinion by letter addressed to the attorneys for the parties. He related the history of the land acquired as hereinbefore set out. Appellee had attempted to establish timber cutting as a part of her claim of adverse possession. The chancellor held as a fact that “the Lewises cut and sold timber at least twice, but the proof is inadequate to establish any actual cutting in the area south of the property line but north of the fence.” The chancellor discussed appellant Skel-ton’s testimony that everyone knew the “cross fence” was not the line, but since the principal use of the area was for growing trees, they had no reason to object to occasional pasturage of the area.

The chancellor discussed the undisputed fact that since the deed of conveyance in July 1960, the Skeltons had paid the taxes on the subject property each year. Never had taxes been paid on the property by the Lewises.

The chancellor seemed to base his factual determination on the fact that the Skeltons did not place a fence along the true northern boundary of the property they purchased and, in effect, held that they were not diligent in failing to do so. We emphasize the finding of the chancellor that in 1977, after appellee had contacted the Skel-tons to sell more land, it became apparent that the Lewises were claiming some property south of the Skelton purchase boundary and negotiations terminated.

The chancellor based his opinion on, the cases of Batson v. Smith, 211 Miss. 428, 51 So.2d 749 (1951) and Alexander v. Hyland, 214 Miss. 348, 58 So.2d 826 (1952).

At least a half dozen cases from this Court over the years have held that under certain circumstances and proof thereon, a grantor may retain a part of his conveyed property by adverse possession against his grantee. We unhesitatingly say, however, that the proof in order to establish adverse possession in such a situation is far greater than the average adverse possession case. Here we had the Lewises giving the Skel-tons a warranty deed to property set out by metes and bounds description and at the same time a plat conforming to the warranty deed metes and bounds description was delivered to the Skeltons. The Lewises now, in effect, say that we do not mean what we said in the warranty deed or the plat that we had made, but we claim to a zig-zag, crooked fence that has no relation whatever to the straight northern boundary of the property conveyed.

In 3 Am.Jur.2d Adverse Possession § 11, page 89, we find the following:

[Wjhere the original entry is in subordination to the title to the true owner, the possession so taken only becomes adverse when the claimant sets up title in himself, and the running of the statute must date from that time....

In 3 Am.Jur.2d Adverse Possession, §§ 163-64, pages 245-7, we find the following:

Ordinarily, where a grantor continues in possession of the land after the execution and delivery of the deed, his possession will be that either of tenant or trustee of the grantee; he will be regarded as holding the premises in subserviency to the grantee. Thus the occupation of land by a grantor, after conveyance made, is presumed to be under, and in subordination to, the legal title held by his grantee, for he is ordinarily estopped by his deed from claiming that his holding is adverse. However, this presumption is rebuttable....
§ 164.... Thus it is well settled that a grantor of land may originate a possession adverse to this grantee, and that such possession differs from that originated by a stranger only in requiring stronger proof to sustain it. This is true even though the grantor conveys the land by a general warranty deed. In order to make the plea of limitation effectual in a case where the grantor remains in possession, using the land as he did before his deed, he must show some notorious act of ownership over the property, distinctly hostile to the claim of the grantee. The hostility of the grantor’s holding must be brought to the grantee’s attention in such a manner as to put the latter on notice of the grantor’s intention to occupy the property in his own right_ The refusal by a grantor in possession of the premises to surrender them to the grantee is notice to the latter that he must proceed to vindicate his rights, and if he delays in doing so beyond the statutory period his deed cannot prevail against his grantor’s adverse possession. (Emphasis added).

In the case of Walker v. McLaurin, 229 Miss. 425, 90 So.2d 857 (1956), we recognized that a grantor may acquire title to land by adverse possession against his grantee if the adverse possession is in such manner as to notify such grantee of the adverse possession.

In Cummins v. Dumas, 147 Miss. 215, 113 So. 332 (1927), we approved title by adverse possession of a grantor of an alleyway where the adverse possessor had constructed buildings at the ends of the alleyway and had built gates and locked them.

In Evans v. Shows, 180 Miss. 518, 177 So. 786 (1938):

The rule to the effect that when a person makes a deed of conveyance of land he cannot by remaining in possession claim by adverse possession in hostility to his own deed has been modified or departed from by our court to the extent, and to the extent only, that he may bring notice or knowledge of such averse claim to the attention of his vendee, and henceforth claim the same by adverse possession. The record fails to show that this was done by the grantors in the present case.

We carefully have studied the cases of Batson, supra, and Alexander, supra, relied on by the chancellor and find that the facts in each of those cases require a holding that appellee Lewis did not meet the burden of proof. We therefore hold that when a grantor of real property conveyed by warranty deed a completely and adequately described parcel of property, and confirmed that property conveyed by a plat conforming to the deed, as was done here, in order for the grantor to retain part of that property and acquire it by ten years adverse possession, he has the burden of proving beyond a reasonable doubt that the grantee had notice that the grantor was saying in effect, “Yes, I conveyed it to you, but I did not mean it. I am keeping a part.” No doubt should exist.

In making the above pronouncement, we, of course, are referring to the evidence in the case sub judice. We, however, go further and state that in any case where the grantor claims by adverse possession all or part of the property conveyed, the proof of actual notice of that possession by the grantor to the grantee should be stronger than in the normal adverse possession case and should be clear beyond a reasonable doubt. The evidence should reveal that the grantee has been ousted from the property he received under the conveyance.

We, therefore, reverse and render the cause and grant judgment here for the appellant, enjoining appellee from claiming any property south of the northern boundary line conveyed by the deed of July 12, 1960. Title to such property conveyed in the deed is confirmed in appellant Skelton.

REVERSED AND RENDERED.

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


text:
    Paul John CRECHALE v. Michelle F. CRECHALE.
    No. 54309.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Robert Rogan Marshall, Jackson, for appellant.
    B. Stirling Tighe, Tighe & Tighe, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

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

AFFIRMED.


text:
    Roy E. TATE v. F.J. HAMEL d/b/a Hamel Plumbing and Electrical Contractors.
    No. 54290.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    J.M. Ritchey, Cain, Cain & Ritchey, Canton, for appellant.
    Bentley E. Conner, Canton, for appellee.
   Appeal from Circuit Court, Madison County; Alfred G. Nicols, Jr., Judge.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.