author: BOWLING, Justice, BOWLING, Justice,

text:
    In re ENLARGEMENT OF the BOUNDARIES OF YAZOO CITY, Mississippi, Dynamics Corporation of America, Portable Elevator Division, Amco Products, Yazoo City, et al. v. CITY OF YAZOO CITY, Mississippi.
    No. 54956.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 25, 1984.
    Herman B. DeCell, Henry, Barbour & DeCell, Yazoo City, Elizabeth L. Gilchrist, Jackson, for appellants.
    T.H. Campbell, III, Campbell & Campbell, Yazoo City, for appellee.
    Before ROY NOBLE LEE, BOWLING and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves the expansion of the city limits of Yazoo City, Mississippi. After a full hearing on February 25, 1983, the Special Chancellor rendered his opinion approving the action of the Mayor and Aider-men of the City annexing certain areas adjacent to the existing city limits.

Pursuant to the petition for annexation filed by the City government on August 24, 1981, the City sought annexation of four separate areas. The property owners of three of the annexed areas did not participate in the appeal. Protestants from the fourth area, (hereinafter referred to as Area IV), consisting of ten commercial enterprises, appeal from the decision of the Special Chancellor and allege the following assignments of error:

I. THE CHANCELLOR’S FINDINGS OF FACT ARE MANIFESTLY AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND ARE NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE.
II. THE CHANCELLOR’S CONCLUSIONS OF LAW THAT THE PROPOSED ANNEXATION IS REASONABLE AND IS REQUIRED BY THE PUBLIC CONVENIENCE AND NECESSITY ARE ERRONEOUS.
III. THE CHANCELLOR ERRED IN FINDING THAT THE CITY’S LEGAL DESCRIPTION OF THE TERRITORY PROPOSED TO BE ANNEXED AS SET FORTH IN THE ORDINANCE, PUBLIC NOTICE AND CHANCERY COURT PETITION CONSTITUTED A VALID, LEGAL DESCRIPTION.
IV. THE CHANCELLOR ERRED IN FAILING TO FIND THAT THERE WAS A FATAL VARIANCE BETWEEN (A) THE LEGAL DESCRIPTION CONTAINED IN THE CITY’S PETITION AND ORDINANCE: AND (B) THE LEGAL DESCRIPTION AS PLATTED ON THE CITY PLAT ANNEXED TO THE PETITION AS REQUIRED BY SECTION 21-1-25, MISSISSIPPI CODE OF 1972, AS AMENDED.

The other appellants in the cause are objectors to the annexation ordinance, the majority being residents of an area immediately outside the existing city limits known as the Shady Lane/Shady Oaks area. It was contended by persons alleging to represent all the residents of this area that the annexation ordinance was void as that area was not included as the annexed area. These appellants submit the following assignments of error:

I. THE SPECIAL CHANCELLOR ERRED IN FINDING THAT THE PROPOSED ANNEXATION DID NOT VIOLATE THE 14TH AND 15TH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND WAS NOT THEREFORE UNREASONABLE EVEN THOUGH THE SHADY LANE/SHADY OAKS AREA WAS EXCLUDED FROM THAT ANNEXATION SOLELY BECAUSE ALL THE AREA’S RESIDENTS ARE BLACK.
II. THE SPECIAL CHANCELLOR ERRED IN FINDING THE PROPOSED ANNEXATION REASONABLE, AND IN FURTHER FINDING THAT THE BOARD OF ALDERMEN OF THE CITY OF YAZOO CITY DID NOT EXCLUDE THE SHADY LANE/SHADY OAKS AREA FROM THE PROPOSED ANNEXATION FOR RACIALLY DISCRIMINATORY REASONS AND WITH RACIAL DISCRIMINATORY EFFECT.

We carefully have studied the record, the briefs, and consideration has been given the oral arguments. A citation of authorities is not necessary on the legal proposition that this Court cannot overturn the decree of a chancellor unless we find with reasonable certainty that his decree is manifestly wrong on a question of law or the interpretation of the facts pertaining to legal questions. We find without hesitation that the opinion of the special chancellor is not manifestly erroneous. It sets out a detailed analysis of the cause and his resulting decree. We therefore affirm that action of the chancellor and adopt the opinion as the opinion of this Court. For the purpose of being accurate, we now set out that opinion in its full context as a part of this appeal opinion:

“At a regular meeting of the Board of Mayor and Aldermen of the City of Yazoo City, Mississippi, held on August 24, 1981, an ordinance was duly enacted extending and enlarging the corporate limits of the city. The said ordinance was published according to law.

“On September 22,1981, the City filed its petition in this Court for ratification, approval and confirmation of the ordinance. A certified copy of the ordinance, together with the requisite map, was attached to the petition. The ordinance defines with certainty the territory proposed to be included in the corporate limits, and also defines the entire boundary as changed.

“In accord with the terms and provisions of Sec. 21-1-27, Miss.Code, 1972, the ordinance in general terms described the proposed improvements to be made in the territory proposed for annexation, the manner and extent of such improvements, and the approximate time within which such improvements are to be made. It is stated that the City shall make the following improvements in the territory proposed for annexation within a reasonable time, not to exceed three (3) years from the effective date of the ordinance:

“(a) To provide and extend an adequate water system for domestic use and fire protection;

“(b) To construct sanitary sewer lines and to provide sanitary sewage facilities;

“(c) To provide electrical system and service where needed and permitted.

“The ordinance further sets out a statement of the municipal or public services which the City proposed to render in the annexed territory, to-wit:

“(a) Provide garbage and trash pickup from each residence;

“(b) Provide regular city water rates to users already served by city water;

“(c) Provide regular police patrol and protection; .

“(d) Provide fire protection;

“(e) Provide street and drainage maintenance;

“(f) Provide malarial control, animal control, and traffic control and regulatory traffic signs;

“(g) Provide comprehensive zoning for building construction, building codes and building inspector services and regulations;

“(h) Provide garbage pickup from each commercial establishment on a fee basis.

“On September 22, 1981, this Court entered an Order fixing the date for hearing the said petition, that is to say, October 28, 1981. Thereupon, notice to all persons interested in, affected by, having objections to, or being aggrieved by the ordinance was given by publication, according to law. Further, notice by posting was given in the manner prescribed by Statute.

“The Court finds that the ordinance and the Petition for ratification, approval and confirmation thereof are in accord with the provisions of the statutes in such cases made and provided.

“Of the estimated 1,235 people living in the territory sought for annexation, some forty (40) individuals signed the objections filed in this cause. Some nine (9) industries likewise filed objections. In addition thereto some seventy (70) individuals who live outside the territory sought to be annexed filed objections.

“After hearing motions and other preliminary matters, hearing on the merits began on October 13, 1982. The taking of testimony was concluded on October 22, 1982. This matter was taken under advisement to afford the Court time to review the testimony.

“The burden of proof was on the municipal authorities to show that the proposed enlargement is reasonable, Sec. 21-1-33, Miss.Code 1972; Re Extension of Boundaries of the City of Indianola, 226 Miss. 760, 85 So.2d 212 (1956); Bridges v. Bilox [Biloxi] 253 Miss. 812, 178 So.2d 683 (1965).

“In a proceeding under Sec. 21-1-33 the Chancery Court is governed entirely by, and its powers are limited to, the language of the statute. It is empowered (1) to approve, ratify and confirm the ordinance if found to be reasonable, (2) to modify the' proposed enlargement or contraction by decreasing the territory to be included or excluded, or (3) to deny in to to the proposed enlargement or contraction if found to be unreasonable. Lippian v. Ros, 253 Miss. 325, 175 So.2d 138 (1965).

“Briefs by the four groups involved in this cause were presented on or about November 12, 1982.

“The maps, charts, and other exhibits, as well as the oral testimony show the following:

“AREA NO. I

“This area contains 181 acres and is situated to the West of the present City. It adjoins Yazoo City along Champlin Avenue and Airport Road. Yazoo City High School is situated on this tract. The tract also contains some vacant developable land. No one lives in this area. The County pays $375.27 for each child in the County that attends the City School. The City will save some $12,000 on fire insurance by extending the City limits. Area I is reasonably in the path of growth of the City and the Court is of the opinion that the annexation of this parcel would be reasonable.

“AREA NO. II

“Area 2 has four (4) inhabitants. It is situated at the Northeast corner of the present city and contains 674.2 acres. It adjoins the City along some two miles of the present boundary. Mississippi Chemical Company headquarters building and the Yazoo Country Club are located thereon, as well as the intersection of Highway 49 West and Highway 3. There was no objection to the annexation of this parcel. The Court finds that the annexation of this parcel to be reasonable.

“AREA NO. Ill

“Area 3 is located to the South and East of the present City. It contains 805.9 acres. It is made up of commercial buildings, a cemetary, and homes. A Boy Scout Camp is also located therein. Some 721 people live in this Area. The City serves this Area with water and electricity but no sewer facilities are provided. The City also provides fire protection for Area 3 and the people living therein pay for this service. This Area includes the intersection of Highway 49E, Highway 49W, and Highway 16, and is a main highway entrance to downtown Yazoo City. There is a motel and two restaurants situated at or near the intersection of said highways.

“The State Board of Health’s County Sanitarian for Yazoo County testified that there was a serious health hazard behind the motel with reference to the sewage. He stated that he had received many complaints of open sewer in Area 3 and that he had written letters to some twenty (20) people in this Area. One restaurant, he said, dumps sewage in the creek and causes a serious health hazard. Some sewage from the Enchanted Hills Area drains into Willis Creek.

“Although it is true that there has been little change in Area 3 over the past ten years, it is also true that this Area lies at or near a major entrance to Yazoo City and it can be reasonably anticipated that this land will become a part of the City within a reasonable time and that it should be taken into the City so as it might be developed properly, particularly with reference to the development of streets and the collection and disposal of sewage and waste rather than to allow the Area to continue to be developed in an uncontrolled manner. This Court is, therefore, of the opinion that the annexation of Area 3 would be reasonable.

“AREA NO. IV.

“Area 4 is located to the South and West of the present City. This Area contains a residential area known as the Jonestown Community and the Yazoo Industrial Park with related industrial and commercial development. The Area includes the Highway 49 West and Highway 3 intersection and contains some 1,226 acres. There are 538 residents in the Area. Jonestown is an old residential area. Some 25 open sewer violations were found to exist therein by the County Sanitarian for Yazoo County. City services for electric power and water already exist in the Jonestown area. There is a need for both fire and police services in the area. The testimony reveals that the persons therein will enjoy a reduction in their fire insurance rates. There is likewise a need for permits as to further building or repairs in the Area. This Court is of the opinion that the annexation of the Jonestown Community, being a part of Parcel 4, is reasonable.

“The Industrial Park area lies East of the Yazoo River and West of the Jones-town Community and along Highway 3. There are no homes situated in this parcel. The objectors from the Industrial Park area testified that there was very little land left in the park for development; that they did not need or want the alleged improvements offered by the City. They purchase water and sewer service from the City at double rates. They also receive their electric power from the City. Some of the industries have their own fire fighting equipment. There is no serious health hazard in this Area and the crime problem is very low. Several of the owners of these industries and a number of their employees live in Yazoo City.

“In the case of Texas Gas Trasnmission [Transmission] Corp. v. City of Greenville, 242 So.2d 686, the objectors offered testimony to show that they did not want any of the alleged improvements offered by the City. Their gas lines were already on the property. They had their own lights and water well, their own firefighting equipment and septic tank, and would have to pay taxes to the City of Greenville if the City expanded in their direction. The Supreme Court of Mississippi found this argument not well taken because the Appellant already uses the water and light service as a “standby for emergency purposes”. It uses other facilities and its employees use various City services. The Court also found that the argument that the appellant would not receive benefits commensurate to its increased tax burden was not well taken. See Kennedy v. City of Kosciusko [203 Miss. 4], 33 So.2d 285.

“In addition, Area 4, as above stated, includes the intersection of two major highways, to-wit: Highway 49 West and Highway 3. The control of growth around this entrance to the City would be reasonable.

“This Court is of the opinion that the annexation of parcel 4 would be reasonable.

“The objections of defendants Zellner Streeter, et al., is a contention that the proposed annexation is unreasonable and unjustified in that it deliberately excludes the area known as Shady Lane/Shady Oaks Subdivision for racially discriminatory reasons. The evidence shows that the Mayor and Aldermen reduced the area to be annexed in order to reduce the number of white population to be included so that they might achieve as close as possible a racial balance of the population to be annexed. This Court found in Opinion dated August 20, 1982, that should this Court find at the merit hearing that the annexation ordinance is reasonable in whole or in part, then the City may not hold an election after such annexation until it complies with Section 5 of the Voting Rights Act. These objectors do not contend that this Court could add any area to the annexation but contend that the Petition should be dismissed because of the alleged discriminatory reason. This Court is of the opinion that there is no merit to this contention.

“The Mayor and Aldermen were unanimous in their vote in the adoption of the annexation ordinance and were of the firm opinion that such was necessary and could be carried out. Although the Court is not bound by the adjudication of the Mayor and Aldermen that the proposed extension was reasonable, the Court is entitled to give some weight to the opinion of the City authorities whose responsibility it was to determine whether or not they were justified in asking the approval of the Chancery Court of the ordinance here involved which they had adopted subject to the Court’s approval. Extension of boundary of City ofRidgeland, 388 So.2d 152. In Re Extension of the Boundaries of the City of Indianola, 85 So.2d 212. The mayor and aldermen, being a legislative body, found that the expansion herein sought is in, and required by, the public convenience and necessity. See Ritchie v. city of Brookhaven, 217 Miss. 860, 65 So.2d 436 (1953). The record reflects, and the Court finds, that the City met the burden of proof of public convenience and necessity for the expansion.

“The Court finds that the enlargement herein sought is reasonable; that reasonable public and municipal services will be rendered in the annexed territory within a reasonable time; and that the improvements set out in the ordinance will be completed within a reasonable time, not to exceed three (3) years from the effective date of the ordinance.”

The chancellor clearly answered the present assignments of error filed by appellants Dynamics Corporation of America, et al, the industrial protestants from Area IV. On close examination of the findings of the chancellor, we do not find any merit to those assignments of error.

We need briefly to discuss issues raised by appellants Zellner Streeter, et al. As their assignments of error reveal, their appeal is based on a racial discrimination argument, basically contending that the city and the chancellor refused to annex a subdivision where these appellants reside, along with the total of over 900 residents. The evidence showed that the “Shady Lane” part of this excluded area is comprised mostly of funded, subsidized rental apartments, with the “Shady Oaks” area being made up of residences. These appellants contend that neither the city nor the chancellor gave sufficient reasons not to include this area within the newly annexed area.

At the outset, we note that the chancellor did consider these claims of the appellants in question and found them to be without merit. He did not make specific findings of fact with reference to the alleged impermissible racial discriminatory purposes. Taking the opinion as a whole, however, we find it fairly found from facts and applicable law that there was no discriminatory purpose. We are required by prior decisions and sound constitutional considerations to proceed on the assumption that the chancellor resolved all such factual issues for appellees. Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); and PMZ Oil Co. v. Lucroy, 449 So.2d 201 (1984).

The Streeter appellants now claim that they were excluded because of their race in violation of the Fourteenth and Fifteenth Amendments to the Constitution of the United States and that, as a result of this, the entire annexation is illegal and must be set aside by this Court.

Appellants’ Fourteenth Amendment claim founders on the decision of the United States Court of Appeals for the Eighth Circuit in Wilkerson v. City of Coralville, 478 F.2d 709 (8th Cir.1973). Wilkerson holds that there is no recognized equal protection right to annexation by a municipality available either to the owners or residents of an area outside the city, whatever that area’s economic or racial status.

Annexation is a state law matter. The laws of this state contain a procedure whereby persons such as these appellants may present their demand for annexation. MCA § 21-1-43 (1972). Upon presentation of a petition signed by at least two-thirds of the qualified electors residing in the area seeking annexation, the chancery court must hold a hearing as in other annexation cases. These appellants have chosen not to pursue the plain and adequate remedy available to them under state law. MCA § 21-1-45 (1972).

Appellants’ claim under the Fifteenth Amendment violates two of the fundamental constitutional premises of our society. These are:

1. All persons have a constitutionally protected right that the strength of their vote will not be diluted by arbitrarily drawn electoral district boundary lines. Reynolds v. Sims, 377 U.S. 533, 561-562, 568, 84 S.Ct. 1362, 1385, 12 L.Ed.2d 506 (1964); Perkins v. Matthews, 400 U.S. 379, 388, 91 S.Ct. 431, 436-37, 27 L.Ed.2d 476 (1971).

2. A person does not have to be a member of any particular race or group in order to have his right to vote respected. White persons have the same constitutional and legal immunity against the abridgment of, or dilution of, their right to vote on account of race and color as do black persons. United Jewish Organizations of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 521-22 (2nd Cir.1975) affirmed sub nom.; United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (See particularly Steward, J., concurring, 430 U.S. at 179-80, 97 S.Ct. at 1016-17). See also McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Carter v. Gallagher, 452 F.2d 315, 325 (8th Cir.1971).

Having these premises in mind, at least one thing is clear. The City of Yazoo City has effected an annexation, the population of which is roughly 50% white and 50% black. This leaves the overall population as well as the voting age population in roughly the same racial make-up as it was before the annexation. Having in mind the principles stated above and the facts of this case, there is no constitutional infirmity in this annexation. We know of no case which holds that a municipality has a constitutional obligation to maximize the voting strength of a particular racial or ethnic minority.

We find no manifest error in the opinion and decree of the chancellor and therefore affirm the cause.

AFFIRMED.

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

BOWLING, J., specially concurs.

BOWLING, Justice,

specially concurring:

I am compelled, after adopting the foregoing majority opinion, to express further thoughts about this cause as revealed by the record, briefs and oral argument. The record is unclear as to the way the Central Mississippi Legal Services became involved in this case. They ostensibly represent the 900 plus black population of the Shady Lane/Shady Oaks area.

Assuming this representation is proper, the residents and property owners of the areas have a complete legal remedy to request that the area be brought into the city limits. Section 21-1-45, et seq., Mississippi Code Annotated (1972), provides the procedure to be taken if the area wishes to be incorporated within the city. This procedure has nothing whatever to do with the legal procedure now before us; that is, the annexation of certain areas by the city on proper legal petition under applicable statutes. Nevertheless, the lower court gave full consideration to the request of the objectors to proceed in the present cause. It is interesting to note that seven of those signing the objection papers were living within the city limits.

Before proceeding further, I point out and give full reliance on my record on fairness and equal opportunity to all people, regardless of race, color, and status in society. It is necessary now that I speak to the obvious and the picture is not good.

The appellants we are now discussing, in effect, readily admit that the purpose for their interference in the city’s orderly annexation plans is to produce a situation that would result in a large black voter majority in the city limits. This is borne out by statements in the appellant’s brief as follows:

However, even if Court should find that the actions of the City are racially neutral on their fact, the 15th Amendment was violated nonetheless because the deletion of the Shady Lane/Shady Oaks neighborhood from the annexation was taken for the discriminatory purpose of preventing blacks from gaining numerical superiority in the City which would have an obvious impact on existing racial voting patterns... and
Indeed, committing the City to become majority black in population by adding more than 900 new black residents, a good number of which could immediately register to vote, would have a devastating impact on the existing white-controlled political power structure....

In effect, these appellants are saying “We are not fighting for equal rights, we are fighting for superior rights.”

The lower court received testimony from the white mayor, two black aldermen and two white aldermen. The two black aider-men were elected from two wards with a majority black voting strength. All five were in favor of annexation and all five gave valid reasons.

The Shady Lane/Shady Oaks people are now and have been for a long time receiving utility services, such as water, electricity, sewage disposal, garbage collection and fire protection. They have no special physical problems. The present annexation included another predominantly large black subdivision which does have physical problems, such as open sewage and lack of adequate other facilities. The residents of this subdivision are not objecting to the annexation.

The proof is positive that after the present annexation, the city of Yazoo City essentially will have 50-50 ratio between white and black.

There are further reasons why the city administration had cause not to include the Shady Lane/Shady Oaks subdivision. In addition to benefits already described, they are paying no city taxes. At the time of the annexation hearing, 244 area children were attending the Yazoo City Municipal Separate School District with the school being paid $375.27 by the county for each of those pupils. The city would lose this revenue and corresponding decrease in school services. The mayor and aldermen readily admit that this area would be considered for inclusion in the city along with other areas in the reasonably near future. All five city officials in addition to the experts, gave good and valid reasons, including those enumerated above, for not including the area in the present annexation.

As hereinbefore set out, it is clear from studying the records and the briefs in this cause that the real reason for the legal action by Central Mississippi Legal Services on behalf of the residents and property owners of the area is to engage in politics and create a black politically controlled city.

In the opinion of this writer, the Central Mississippi Legal Services has clearly overstepped its legal bounds, and this Court under its rules and its decisions takes notice of clear errors in legal proceedings before it.

In 1974 the Congress of the United States established the legal services corporation , giving as its purpose that:

(1) there is a need to provide equal access to the system of justice in our nation for individuals who seek redress of grievances; (2) there is a need to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel and to continue the present vital legal services program; (3) providing legal assistance to those who face an economic barrier to adequate legal counsel will serve best the ends of justice and assist in improving opportunities for low-income persons consistent with the purposes of this chapter;
(4) for many of our citizens, the availability of legal services has reaffirmed faith in our government of laws; (5) to preserve its strength, the legal services program must be kept free from the influence of or use by it of political pressures; and (6) attorneys providing legal assistance must have full freedom to protect the best interests of their clients in keeping with the Code of Professional Responsibility, the Canons of Ethics, and the high standards of the legal profession. (Emphasis supplied).

The act never intended for “crusaders” to go outside the bounds of the purpose of the act to play with politics in any state or political subdivision.

Under the section of the Act setting out “Definitions” (§ 2996A), the term “eligible client” means “any person financially unable to afford legal assistance.”

In the present cause, the Mississippi Legal Services is purported to represent over 900, all black residents in the subject area.

Discounting a proportion of students, there are over 300 families living in the affected area. Do they all as a group need free taxpayer funded legal representation?

A small donation by each family and property owner would be ample to raise the whole area above any poverty level and sufficient for securing legal representation in the present cause or in a proper proceeding under the proper statutes as discussed above. There certainly is no showing whatever in this record that the people of this area, as required by Congress in setting up the Legal Services Corporation, are entitled to be classed as an “eligible client” as that term is above described.

I certainly do not mean to be unduly harsh on the Legal Services Corporation. I speak as a member of this Court and not as a taxpayer, from whose pockets these services are funded. The Legal Services Corporation has performed great service to this state. They have represented a lot of people who needed and were entitled to adequate legal representation under the purpose for which the Legal Services Corporation was created. There are many more “out there” of every race, color or creed, who are in need of legal services and are unable to secure them, mainly because of financial inabilities. Both the legal services organizations, either the federally funded organization or those attorneys giving their time free through the Mississippi Bar Association, are to be highly commended. It is regretable, however, that we occasionally run into situations where the “free” legal service is thoroughly abused, as has been done in the case sub judice.

      . There is a clear implication in the record that the majority of the residents of this area do not want to be within the city.

      . 42 U.S.C.A. § 2996, et seq.


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    SCOTCH PLYWOOD COMPANY OF MISSISSIPPI v. Walter GARDNER, et al.
    No. 54230.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Granted in Part and Opinion Modified July 25, 1984.

      Thomas D. Bourdeaux, E. Gregory Snow-den, Bourdeaux & Jones, Meridian, for appellant.
    Leon Mangum, Decatur, for appellees.
    Before ROY NOBLE LEE, P.J., and BOWLING and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

This appeal from the Chancery Court of Newton County involves a sale and purchase of timber. The appeal questions evolve around the securing of a timber deed and the purchase of timber without securing deeds from all the owners. As usual a consideration of the appeal requires a brief discussion of the facts. These are largely undisputed, except for the amount of timber and its value. In relating the facts it usually is well to begin at the beginning.

One Clifton Gardner in 1942 purchased 100 acres of land approximately seven miles north of Decatur in Newton County. Gardner died intestate in 1952 leaving as his surviving heirs his wife Irene and seven children.

After Gardner’s death and prior to the proceeding involved in this case, small tracts of the property had been deeded to some of the heirs for home places, leaving 93V2 acres involved in this cause.

Gardner’s widow, Irene Gardner, was 74 years of age at the time of the occurrences leading to this litigation. She lived in the home place, by the side of the country road, which house was on the subject property and the home in which Mrs. Gardner reared and provided for her seven children. In February 1978 and for some years prior thereto, appellee Walter Gardner, one of the sons, lived in a house just across the road from his mother. On and before said date, one of the daughters, Valean Welch lived in a house next door to her mother. For a period of time prior to February 1978, two men, namely Murray H. Gibson and Jimmy Adams, had been negotiating with Irene Gardner to purchase the saw-log timber from the place. This timber covered from 65 to 70 acres of the total acreage.

On February 6, 1978, Gibson and Adams secured from Irene Gardner a deed to the timber. The deed, typed by the two purchasers, did not have a place for an acknowledgment. Irene Gardner called her daughter Valean and requested that she come and witness the deed. Valean did so, after which the deed was taken across the street to be witnessed by the wife of Walter Gardner. The latter was away from home several days on business.

The instrument secured by Gardner and Adams was then taken to the duly authorized officials of appellant, Scotch Plywood Company of Mississippi. This company bought the timber from Gibson and Adams by warranty deed dated February 15, 1978. Gibson and Adams had paid Irene Gardner $16,000 for the deed from her. Appellant paid Gibson and Adams the sum of $27,000.

The daughter Valean Welch testified regarding her knowledge of the instrument executed by her mother and admitted that she knew the instrument purported to convey all the timber on the Gardner tract for $16,000. She witnessed her mother receiving $8,000 in cash, and a check for $8,000 in consideration of the timber conveyance. She lived in the same house during the entire time from the execution of the conveyance until the timber was cut.

Walter Gardner, an educated man engaged in the insurance business, stated he was away from home the day his mother executed the timber instrument, but learned of it upon his return. He did nothing. He testified that during the weeks appellant was cutting the timber, the vehicles had to use his driveway. He discussed this situation with appellant’s employees, and was assured that damages to the property around his home would be repaired. Gardner, in effect, witnessed the cutting of the entire tract of timber by appellant and took no action to stop it or in any way interfere with its being cut. He further testified that prior to filing the litigation now before us, that the money received by his mother from the sale of the timber was used to renovate her house.

Both appellees and appellant presented an expert in cruising timber. Appellees employed a graduate forester to examine the stumpage left by the timber cutting and he gave a professional estimate as to the amount cut and its value. Appellant introduced one of its full-time employees, who was a junior college graduate and had received on the job training as a timber cruiser. He testified as to his examination of the timber prior to it being purchased by his company. Needless to say, as usually happens when experts testify for different parties, the amounts and prices in this case varied substantially between the two experts.

On December 20, 1980, the seven children of Clifton and Irene Gardner, by Walter Gardner, filed suit in the Chancery Court of Newton County naming as defendants the appellant Scotch Plywood Company of Mississippi and the two individuals, Murray Gibson and Jimmy Adams. The suit was in an effort to recover the value of the childrens’ interest in the timber. All three defendants appeared by solicitors and filed pleadings. Appellant, Scotch filed a cross bill against fellow defendants Gibson and Adams requesting that in the event a decree was rendered against the company, that it should be entitled to a decree against the two individuals under the terms of the warranty deed given by them to the company.

After a hearing of several days and a consideration of the case, the chancellor found that the seven appellees were entitled to recover the value of their interest in the timber that was cut as of the date of the purchase by appellant. We shall not discuss how he arrived at his final amount, but we are required to consider, and we now hold, that appellees presented sufficient proof for the chancellor to arrive at his value for the timber. He found that the value at the time of cutting was $67,-780.32. This was a total value, including that of Irene Gardner, the mother. The chancellor then reduced the total value by one/eighth and rendered a decree for Vs of the total value to appellees. This decree was in the sum of $59,307.78. The chancellor directed that this amount be deposited with the clerk of the court by appellant Scotch Plywood for distribution.

The individual defendants Gibson and Adams do not appear in this appeal.

Appellant Scotch presented a number of assignments of error. After careful study, we are of the opinion that only one assignment, other than the cross-claim, applies and that the remainder have no merit. This applicable assignment of. error is that the chancellor erred in finding that appel-lees are not equitably estopped from recovering any amount from appellant.

The five children of Clifton and Irene Gardner, other than Valean Welch and Walter Gardner, lived and had been living for a number of years in New York and Wisconsin. They did not appear personally and testify at trial. As hereinbefore stated, the bill of complaint was signed by appellee, Walter Gardner. There is no testimony in the record which would authorize this court to hold that the five non-resident children committed any acts that would justify holding that they were equitably estopped from receiving their interest in the timber. There are only vague references to telephone conversations.

We cannot say the same about daughter Valean or son Walter. The proof is clear that each knew their mother had conveyed the entire timber to Gibson and Adams, who in turn conveyed to appellant Scotch. As hereinbefore related daughter Valean witnessed the instrument and knew that it conveyed all the timber. Son Walter knew that all the timber was being hauled over his driveway. They did nothing, although it was approximately one and one half years before the timber was finally cut. Taking the entire evidence into consideration, we are of the opinion that the chancellor erred in failing to hold that children Valean Welch and Walter Gardner, were estopped to secure a judgment against appellant.

Long ago the question of estoppel was discussed in the case of Nixon’s Heirs v. Carco’s Heirs, 28 Miss. 414 (1854), where the court said:

[I]f one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by the equitable estoppel.

In the case of Martin v. Franklin, 245 So.2d 602, (Miss.1972), we said the following:

With full knowledge of his own title to the land in dispute, Martin stood by and saw the survey being made of the Franklin lot and later the construction by Franklin of a home thereon. Franklin acted in good faith believing he had title. Martin was under a duty to make known to Franklin the true state of the title when Franklin began making improvements on the lot. He stood by until the house was completed and then made claim to it. In Quin v. Northside Baptist Church, 234 Miss. 51, 105 So.2d 151 (1958), this Court said, in quoting from an earlier case, that it is a rule of almost universal application that one who stands by and sees another purchase land or enter upon it under a claim of right and permits such other to make expenditures or improvements under circumstances which call for notice or protest cannot afterwards assert his own title against such person.

The Court, through Justice Robertson, discussed the principle of equitable estop-pel in the recent case of PMZ Oil Co. v. Lucroy, 449 So.2d 201 (Miss.1984). This principle of law was discussed fully with applicable citations set out therein.

We find that we cannot say with any reasonable degree of certainty that the chancellor was manifestly wrong in his findings as to the amount of timber cut and the value thereof. The evidence simply made out a question of fact for the chancellor’s decision.

We do, however, find error in the chancellor’s opinion that daughter Valean Welch and son Walter Gardner are not equitably estopped from claiming their shares of the timber for the reasons herein-before set out. We cannot disturb the finding of no estoppel to the five non-resident children. There is not sufficient evidence to place that burden upon them.

The lower court in its decree ordered the funds representing the value of the timber to be paid into the registry of the chancery clerk’s office in Newton County to be distributed. We do likewise, first holding that the five non-resident complainants are entitled to the total sum of $42,362.70. The record is clear that expenses have been incurred in the presentation of this case to final decree and this appeal. For instance, we may take judicial notice that experts do not work for nothing and that the forester who testified for appellees is entitled to compensation. We also recognize that the two children living adjacent to the land in question incurred expenses in investigation, filing and prosecuting the case for and on behalf of the five non-resident children.

We therefore direct that appellant pay into the registry of the Chancery Clerk of Newton County the sum of $42,362.70. In the event the appellees cannot submit an agreed decree on the distribution of these funds, the chancellor is directed to conduct a hearing for that purpose and to decree the proper distribution.

The cost of all proceedings are assessed one-half to appellant and one-half to appel-lees.

AFFIRMED IN PART, REVERSED IN PART, RENDERED AND REMANDED.

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


author: WALKER, Presiding Justice, PRATHER, Justice,

text:
    Robert FERGUSON v. STATE of Mississippi.
    No. 54687.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 25, 1984.
    Hugh L. Brown, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, ROY NOBLE LEE and BOWLING, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Oktibbeha County, Mississippi wherein appellant was convicted of the burglary of “Action Apparel”, a shirt-making establishment, and sentenced to a term of six years in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, the appellant has perfected his appeal to this Court.

We reverse.

There is no probative evidence to convict the appellant of the crime with which he was charged. The State’s case depended upon written statements given by two witnesses, Melissa Kaye Wilkerson and Linda Palmertree, in which they stated that appellant committed the burglary as well as reciting other information incriminating him. However, these witnesses changed their story at trial and testified that appellant did not tell them that he had committed the burglary and furnished no testimony which would connect him with the crime. After the witnesses testified, denying the truthfulness of their prior statements, the statements were admitted into evidence for the purpose of impeaching the witnesses.

It is elementary law that statements admitted into evidence for the purpose of impeaching the testimony of a witness may not form the basis for the conviction of the accused. The statement in such case can only serve to show that the witness had earlier made statements inconsistent with his testimony at trial and are not admitted as substantive evidence of the facts therein stated. Sims v. State, 313 So.2d 388 (Miss.1975); Magee v. Magee, 320 So.2d 779 (Miss.1975).

We therefore hold the trial court erred in not sustaining appellant’s motion for a peremptory instruction.

The judgment of the circuit court sentencing appellant to six years in the custody of the Mississippi Department of Corrections is reversed, sentence vacated and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

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

PRATHER, BOWLING and HAWKINS, JJ., dissent.

ROBERTSON, J., not participating.

PRATHER, Justice,

dissenting:

I respectfully dissent from the majority opinion. I agree with the rule that the majority cites that “statements admitted into evidence for the purpose of impeaching testimony of a witness may not form the basis for the conviction of the accused.” However, I disagree that there is not other direct evidence from other witnesses to support the conviction. Therefore, I would affirm the conviction.

BOWLING and HAWKINS, JJ., join in this dissent.

      . The statement of Melissa Kaye Wilkerson was offered during the State’s case in chief; the second statement was introduced during cross-examination of defendant’s witness Linda Pal-mertree.


author: ROBERTSON, Justice,

text:
    Ezell JOHNSON, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 54963.
    Supreme Court of Mississippi.
    May 30, 1984.

      John Robbins, II, Brandon, 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.

This case presents the question whether two convictions and sentences resulting from a single trial on a multi-count indictment is an error cognizable under this Court’s plain error rule. Ezell Johnson, Jr., Defendant below and Appellant here, was convicted in the Circuit Court of Rankin County on one count of automobile burglary and one count of grand larceny. Johnson was charged with both offenses in a single indictment. After one trial, he was convicted on both counts and sentenced to serve seven years for the burglary conviction and five years for the larceny conviction. The sentences were to be served consecutively.

Indictments charging more than one crime which, in a single trial, result in multiple convictions and sentences have been expressly prohibited by this Court. Finding this to be plain error, we hold that Johnson’s conviction for the lesser offense of grand larceny cannot stand. His sentence of five years for this charge must be vacated. In all other respects, the case is affirmed.

II.

We present the facts, as we should, in the light most favorable to the state. Both of the counts charged in Johnson’s indictment stem from an auto burglary that occurred on February 21, 1983. Paul Nichols, the victim of this crime, testified that on that morning, he drove to his job at the Winn Dixie Super Market in Pearl, Mississippi at about 6:00 a.m. He parked his truck in the store’s parking lot, locked it and raised all of the windows. At that time, his truck contained a Pioneer CD 5 equalizer and two Pioneer TS698 speakers. When Nichols returned to his truck at 3:30 that afternoon, the vent window was broken on the passenger side of the vehicle and the larger window beside it was rolled down. Nichols’ equalizer and speakers were missing. Later, Nichols realized that a box of his cassette tapes was also missing, and he found a pellet on the floor of his truck. He reported all of these events to the police immediately after they were discovered.

In the course of the investigation that followed, the police officers learned that some time prior to this incident, Johnson and Nichols had made each other’s acquaintance at Wendy’s Old Fashion Hamburgers in Pearl. In the presence of Nichols’ girlfriend, Robin Payne, Johnson and Nichols discussed their respective stereo systems. Both Payne and Nichols testified that the Defendant had said that his stereo system was exactly like Nichols’ except that he did not have Nichols’ equalizer.

Later, about two or three days before the burglary, some of Nichols’ fellow workers at Winn Dixie saw a person resembling the Defendant working on his car in Winn Dixie’s parking lot on three different occasions. Evidently, this person aroused their suspicion because they reported the incidence to Nichols. None, however, were positively able to identify the Defendant as the person they had seen.

On the day of the burglary, no one saw Johnson in the parking lot of the Winn Dixie. However, his parole officer testified that she had seen Johnson with a pellet gun earlier in the day.

Three days after the burglary, Nichols saw Johnson’s car in the parking lot of Wendy’s. He called detective Manning because this car was similar to the one his fellow workers had seen in Winn Dixie’s parking lot. Manning went directly to Wendy's and talked to Ezell Johnson. According to Manning, Johnson gave him permission to look at the equalizer and the speakers in Johnson’s car. When Manning showed the speakers and the equalizer .to Nichols, he positively identified them as his own. He claimed that he recognized the equalizer as his because it had a warped top side. Nichols identified the speakers by two rub marks that were made by his sliding rear view windows, which would rub against the speakers when it was opened or shut. He recognized one of the speakers as his because it had a bent bolt. Nichols also found one of his tapes in Johnson’s car.

After the police officers found Johnson in possession of property they believed to be stolen from Nichols, they gave him an opportunity to produce receipts or other evidence which would show that he had acquired the property from someone else. While Johnson attempted to comply with this request, the evidence he produced was grossly inadequate.

Subsequently, Johnson was indicted for auto burglary and grand larceny in a single indictment. The day before the trial, a motion was filed on behalf of the Defendant challenging the form of the indictment. The motion alleged that the state was trying to “stack charges” against the Defendant. This motion was overruled, and on the following day, the state proceeded to try the Defendant on both charges in a single proceeding. After hearing the evidence, the jury returned two verdicts finding Johnson guilty of both automobile burglary and grand larceny. Johnson was sentenced to serve seven years in the Mississippi Department of Corrections on the automobile burglary conviction and five years on the grand larceny conviction. The sentences were to be served consecutively.

III.

When the state elected to indict and try Ezell Johnson on two separate counts in a single proceeding, it violated the rule of law announced in Stinson v. State, 443 So.2d 869 (Miss.1983). In Stinson, the Defendant was indicted and tried upon three separate offenses all arising out of the same transaction or occurrence. On appeal, the Defendant challenged the state’s use of the multi-count indictment. After extensive review of prior case law in this area the Court in Stinson found that multi-count indictments resulting in more than one conviction and sentence were not authorized under Mississippi law. The Court declined to approve multi-count indictments as implemented by the federal court system under Rule 8(a) of the Federal Rules of Criminal Procedure.

The holding in Stinson was reaffirmed in Friday v. State, No. 54,039, decided January 25, 1984, (not yet reported) and Bennett v. State, 451 So.2d 727 (Miss.1984). In Friday, this Court explained its position as follows:

“Because of the inherent prospect of destroying a Defendant’s right to the presumption of innocence, Mississippi does not allow trial on separate charges to be consolidated where evidence of the crime would not be mutually admissible in separate trials and where the Defendant is subject to receiving more than one sentence.”

Our opinion in Bennett v. State, supra, is to the same effect. Under the authority enumerated above, the relief to which Johnson would be entitled is reversal of the lesser conviction of larceny and vacation of the sentence for the same.

Even though the proper objection was made at Johnson’s trial to preserve this point for appellate review, the multi-count indictment was not assigned as error. The question that remains to be answered, then, is whether this error is of the sort that should be reviewed by this Court under our so-called plain error rule. Rule 6(b) of the Mississippi Supreme Court Rules provides:

“No error not distinctly assigned shall not be argued by counsel, except upon request of the Court, but the Court may, at its option, notice a plain error not assigned or distinctly specified.”

Since the applicable rule of law is clear, we find this to be an appropriate case to exercise our power to recognize an error not raised on appeal. See, e.g., House v. State, 445 So.2d 815, 820 (Miss.1984); Hooten v. State, 427 So.2d 1388 (Miss.1983); Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). The primary purpose of the plain error rule is to prevent a manifest miscarriage of justice. Bell v. State, 443 So.2d 16 (Miss.1983). It has been used by this Court to insure the equal administration of justice, Wright v. State, 231 So.2d 777 (Miss.1970), an application we regard as appropriate in the case at bar. Consequently, we reverse Johnson’s conviction and vacate his sentence for the lesser offense of grand larceny. In all fairness to the trial judge, we might add that at the time of Johnson’s trial, the decision in Stinson v. State had not yet been issued.

IV.

Johnson assigns as error his convictions for both crimes, believing them to be against the overwhelming weight of the evidence. When faced with this question, our powers of review are limited. Under our system, the jury is charged with the responsibility for weighing and considering the conflicting evidence and the credibility of the witnesses. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). As we stated in Pearson v. State, 428 So.2d 1361 (Miss.1983):

“Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that under the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576 (1979). 428 So.2d at 1364.”

. When all conflicts in evidence are resolved in the state’s favor, certain facts are established. The state proved that a week or so prior to the burglary, Johnson said that he did not have an equalizer like Nichols. On the day of the burglary, Johnson was seen with a pellet gun, and a pellet was found by Nichols on the floor of his truck. There is an inference that the vent window on Nichols’ truck was shot out with a pellet gun. Finally, only three days after the burglary, Nichols’ property was found in Johnson’s possession.

Under the rule announced in Smith v. State, 278 So.2d 408 (Miss.1973) Johnson’s possession of the stolen property was sufficiently close in time to the burglary to give rise to a presumption that the Defendant was guilty of burglary, unless he offered a reasonable explanation for his possession of the stolen property. Here, the Defendant’s explanation of his possession of the equalizer was that he had bought it months before the burglary. He produced a receipt to this effect, but the amount on the receipt did not correspond to the amount that Johnson claimed that he paid for his equalizer. Moreover, if we must take as true the fact that the equalizer in Johnson’s possession was stolen from Nichols, then Johnson’s explanation is implausible. Evidence that Johnson was in possession of a pellet gun on the day that Nichols’ truck window was broken out with such a gun tends to corroborate the theory that Johnson perpetrated the auto burglary. This evidence certainly bolsters the state’s case when taken in conjunction with the defendant’s unexplained possession of the stolen property only three days after the crime was committed.

At the close of Johnson’s trial, the jury was instructed that the state’s case was circumstantial only and that it could not find the Defendant guilty of either crime unless it believed that the state had proved its case to the exclusion of every reasonable hypothesis of innocence. The verdicts returned by the jury indicate that it believed the state had met this higher burden and we decline to disturb its finding in that regard.

V.

Johnson complains that on cross-examination, the prosecutor was allowed to specify each crime that the Defendant had been convicted of prior to the hearing. It is the rule in this state that any felony may be used to impeach the testimony of a witness. Miss.Code Ann. § 13-1-11 (1972). In Wells v. State, 288 So.2d 860 (Miss.1974), this Court stated the rule to be followed:

“The proper procedure for the district attorney to have used was simply to ask the appellant of what crimes or misdemeanors he had been convicted since appellant had already responded to his own attorney that he had been convicted of a crime. If he then failed to fully enumerate all of his prior convictions, then the district attorney could properly ask him, by way of refreshing his memory and to lay a predicate for impeachment, if he denied being convicted of a particular crime on a particular date in a particular court, but without going into the details of such crime or the punishment received. 288 So.2d at 64.”

See also Sanders v. State, 352 So.2d 822 (Miss.1977). Here, the district attorney followed the proper procedure for eliciting from Johnson the specifics of his prior convictions. Consequently, we decline to reverse his conviction on this ground.

VI.

The final error raised on this appeal is whether the court erred in refusing to instruct the jury that the Defendant had a right to testify in his own behalf and that his testimony should be treated in the same manner as the testimony of any other witness. By statute, every defendant in Mississippi is competent to testify in his own behalf. Miss.Code Ann. § 13-1-9 (1972). However, in Baker v. State, 391 So.2d 1010 (Miss.1980), this Court held that defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf. Baker overruled prior case law to the extent that it was contrary to the above mentioned rule.

Having carefully considered the errors that were raised by the Defendant on this appeal, we find that they are without merit. Consequently, Johnson’s conviction for auto burglary is affirmed. For the reasons stated above, his conviction for grand larceny is reversed and the sentence' therefor is vacated.

AFFIRMED IN PART, REVERSED IN PART, AND SENTENCE OF FIVE (5) YEARS ON CHARGE OF GRAND LARCENY VACATED.

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


author: PRATHER, Justice,

text:
    Patricia Ann CLARK v. MID-STATE HOMES, INC., A Florida Corporation and John H. Fox, III.
    No. 54797.
    Supreme Court of Mississippi.
    June 6, 1984.
    Rehearing Denied July 25, 1984.
    Jerry A. Evans, Hattiesburg, for appellant.
    John H. Fox, III, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   PRATHER, Justice,

for the Court:

This appeal by Patricia Ann Clark seeks to set aside a dismissal of her bill of review for error apparent filed in the Chancery Court of Hancock County for failure to post a bond to secure performance of a former decree. Clark moved ore tenus to strike her request for a stay of execution of the former decree, because of her inability to make the performance bond, and asked the court to proceed on the merits. The trial court dismissed with prejudice the bill of review for failure to post the performance bond without a hearing on the merits. We reverse and remand.

I.

The pleadings of this file reflect a filing on November 12, 1981 of a bill of review for error apparent by Patricia Ann Clark against Mid-State Homes, Inc. and John H. Fox, III. She alleged ownership of real estate in Hancock County about which she filed a former suit against the same defendants on January 23, 1980. In the former proceeding, the defendants in due course filed a demurrer, answer and cross-bill, motion for and decree pro confesso, and a final decree awarding Mid-State $5,000.00 in damages against Clark.

On November 3, 1981, Mid-State sought to enforce the judgment against Clark in her new residence in Florida. This action gave rise to the filing of the current bill of review in Hancock County alleging that none of the pleadings filed subsequent to her original bill had been mailed to or served on her or her attorney and as a result a final decree was secured by fraud, accident, or mistake. Other allegations in the complaint assert a meritorious defense to the cross-bill in the former suit. Clark asked for a stay of proceeding against the defendants in their Florida suit until the bill of review could be heard.

Since Clark had become a non-resident of Mississippi, Mid-State first filed a motion for security for costs. The trial court sustained the motion setting bond for security for costs at $8,000.00 and also permitted Clark to strike her request for stay of the Florida proceeding to collect the $5,000 judgment. Clark complied by filing a bond in the amount ordered insuring payment of court costs in the bill of review suit.

Recognizing that the motion, order, and bond only ordered security for court costs, the defendants filed a motion to vacate, or in the alternative, enlarge the bond to insure the costs of suit as well as performance of the former decree of 1981, under the requirements of section 11-5-119. The trial court then entered an order clarifying the condition of the bond requiring it to include performance of the former decree. The trial court also vacated the surety bond and released the surety company from further liability. Upon failure of Clark to file the performance bond within the stated time, the trial court dismissed the bill of review.

The question raised by this appeal is whether a performance bond in a bill of review suit is necessary or proper when a stay or superseding of the former judgment is not sought.

Mississippi Code Annotated section 11-5-119 (1972) is applicable to the question addressed here:

When a bill of review shall be filed, the chancellor, in term time or in vacation, may direct the proceedings on the decree sought to be reviewed to be stayed until further order, requiring such security for the performance of the decree as he may think reasonable; but such stay of proceedings shall not be a matter of right; and on disposing of the bill of review, the court may render a decree against the parties to such security as may be proper.

This section has been interpretated in our decision in Ford v. Commercial Securities Co. Inc., 236 Miss. 130, 109 So.2d 352 (1959), which controls this question:

The effect of that statute, we think, is to modify the old equity, common-law rule, so as to authorize the chancery court, in its sound discretion, to require a bond rather than actual performance of the decree, before directing a stay of the former judgment. If a stay or superseding of the former judgment is not sought, then no bond to guarantee performance of the earlier decree is necessary or proper....

In the case sub judice the complaint asked for a stay of the Florida proceeding; subsequently the court permitted a striking from the complaint of this request. This action brings this factual situation squarely within our decision in Ford, supra, that a bond is not necessary or proper when a stay is not sought. This rule permits a person who cannot make a substantial bond to have access to the courts; it is a fair and equitable interpretation. Ford v. Commercial Securities Co., supra. Under this statute and case interpretation, the dismissal for failure to file a performance bond was improper.

This case is reversed and the cause remanded for a trial on the merits.

REVERSED AND REMANDED.

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

ROBERTSON, J., not participating.


author: FAULKNER, Justice.

text:
    J & P CONSTRUCTION COMPANY v. VALTA CONSTRUCTION COMPANY.
    82-646.
    Supreme Court of Alabama.
    June 1, 1984.

      J. Russell Gibson III of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellant.
    W. Donald Bolton, Jr. of Foster, Brackin & Bolton, Foley, for appellee.
   FAULKNER, Justice.

J & P Construction Company appeals from the denial of its Rule 60(b), A.R. Civ.P., motion seeking to set aside a default judgment. We reverse and remand.

Valta Construction Company filed a three-count complaint against J & P in the Circuit Court of Baldwin County. The first count claimed $35,000.00 for breach of contract. Valta alleged that it had entered into a contract with J & P as a subcontractor to do excavating work at a construction site owned by the City of Foley. The contract, a copy of which was attached to the complaint, provided that J & P was to pay Valta $72,353.00. Valta claims that after it commenced work on the project J & P asked it to do additional work and later refused to pay Valta for the additional work as it had promised. After J & P refused to make periodic payments, which Valta claims were due pursuant to their agreement, Valta terminated work on the project. The second count claimed $35,-000.00 for work and labor done. The third count claimed $50,000.00 for fraud. The fraud count stems from alleged misrepresentations made regarding the additional work at the site.

Copies of the summons and complaint were served on C.R. Jamison, the president of J & P, on November 22, 1982. Jamison contacted his attorneys in Tuscaloosa about defending the suit, and they advised him to retain a Baldwin County lawyer. They recommended that Jamison contact Don Foster about representing J & P in the matter. In order to insure that a timely appearance was filed on J & P’s behalf, Jamison instructed an employee to mark the company’s calendar and to remind Jamison to check on the matter within 30 days. Jami-son then called Foster, who advised him that he might have a conflict. The next day Foster talked with Jamison again and advised him that another lawyer in his firm had represented Valta in the past and, therefore, Foster could not defend the suit on behalf of J & P. Foster gave Jamison the names of three local attorneys who he felt would be competent to handle such a case, and he suggested that Jamison contact one of them as soon as possible. Jami-son testified that he intended to call his attorneys in Tuscaloosa to ask their advice on who to call but, because of the approaching holiday season and the demands of his work, he failed to do so. Likewise, the employee instructed to remind Jamison about the suit before 30 days had elapsed failed to do so and no timely appearance was filed.

On January 18, 1983, Valta’s attorney filed an application for a default judgment. The application stated that service was perfected on November 22 and that the defendant had failed to answer or otherwise defend the action. It sought a judgment for $42,665.00, an amount which the application stated was to be determined by the clerk. See A.R.Civ.P. 55(b)(1). The clerk entered a default. See A.R.Civ.P. 55(a).

On January 19 the following order was entered:

“1/19/83; This action came on the motion of the plaintiff for a default judgment pursuant to Rule 55(b)(2) of the Alabama Rules of Civil Procedure, and the defendant having been duly served with the summons and complaint and not being an infant or an unrepresented incompetent person, nor a member of the naval or military services of the United States, and having failed to plead or otherwise defend, and his default having been duly acknowledged by the court.
“It is ordered and adjudged by the court that the plaintiff recover of the defendant on contract in the amount of $42,665.00 and the costs of court in this action.”

The court also made an entry on the docket sheet: “Judgment by default for the plaintiff and against the defendant in the amount of $42,665.00 plus costs.”

On January 19, Jamison received notice that a default judgment had been taken against J & P on the previous day. Jami-son telephoned his attorneys, who filed a Rule 55(c), A.R.Civ.P., motion to have the judgment set aside. They filed with the motion an affidavit signed by Jamison detailing the facts leading up to J & P’s failure to file an answer. The affidavit also alleged that J & P had not only paid Valta all that it owed under the parties’ agreement, but that, due to Valta’s breach, it had suffered damages for which it would seek compensation if allowed to file a counterclaim.

After the denial of the Rule 55(c) motion, J & P filed a Rule 60(b), A.R.Civ.P., motion for relief from the judgment. The motion alleged that J & P’s failure to defend was the result of mistake, inadvertence, or excusable neglect, that the plaintiff would not be prejudiced by setting aside the default, and that J & P had a meritorious defense. The supporting affidavit again set out the facts leading up to the default. It also set out the facts on which it based its claim of a meritorious defense. The court denied the 60(b) motion and the defendant appealed.

The procedure for granting a default judgment is set out in Rule 55. The first step is the entry of a default. When a party against whom affirmative relief is sought fails to plead or otherwise defend the action and that fact is made to appear by affidavit or otherwise, the clerk enters a default. A.R.Civ.P. 55(a). A judgment by default may then be entered. If the claim is for a sum certain or for a sum which can by computation be made certain, the clerk may enter the judgment upon a request and an affidavit of the amount due. A.R. C.P. 55(b)(1). In all other cases entry of a default judgment must be made by the court on application of the party entitled to the default. If Rule 55 was not complied with in granting the default, a Rule 60(b) motion should be granted. Weaver v. Travel Inn, Inc., 350 So.2d 444, 446 (Ala.1977). If the default judgment was properly granted, the trial court has great discretion in deciding whether to grant relief from the judgment, and the trial court’s decision will not be disturbed on appeal absent an abuse of discretion. Roberts v. Wettlin, 431 So.2d 524, (Ala.1983), Elliott v. Stephens, 399 So.2d 240 (Ala.1981).

In this case the 60(b) motion should have been granted, because the Rules of Civil Procedure were not complied with in entering the judgment. First, the judgment was excessive. Although the prayer in the contract count sought only $35,-000.00, the award, which states that it is based on breach of contract, was for $42,-665.00. A default judgment cannot be entered for an amount greater than the amount sought in the complaint. A.R. Civ.P. 54(c). Second, even though the judgment was entered by the court, the claim was treated like a claim for a sum certain in that no investigation was made prior to entry of the judgment as to the amount of damages. Plaintiff made its application for a default judgment to the clerk, and the judgment was entered based solely on the amount sought in the application.

In our opinion this case does not involve the sort of claim which could have been properly dealt with under Rule 55(b)(1). Examples of cases which are properly treated as claims for amounts which are certain or are capable of being made certain by computation include such claims as actions based on life insurance policies, actions for the recovery of deposits, actions for the face amounts of notes, and claims based on other liquidated sums. See 6 Moore’s Federal Practice, § 55.04. Although this is a contract dispute, the claim is not for the face amount of the contract, nor is it based on a liquidated damages clause in the agreement. The contract was partially performed and a partial payment was made. Moreover, there were oral statements made which allegedly modified the agreement, and the complaint contained a count for fraud.

The court has the power to enter a default judgment in situations where the clerk would be authorized to enter the judgment under Rule 55(b)(1). In those cases it would not be necessary to make an inquiry into the amount of the damages. In other cases, however, the court should not enter a judgment without first determining the amount of damages. Under Alabama practice prior to adoption of the Rules of Civil Procedure, a writ of inquiry was necessary before a default judgment could be entered, unless the damages were based on an itemized account or were liquidated. See Frazier v. Dismuke, 22 Ala. App. 594, 118 So. 227 (1928); Tit. 7, §§ 215, 257, and 379, Code of Ala.1940 (Recompiled 1958). Rule 55(b)(2) provides:

“If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury pursuant to the provisions of Rule 38.”

Although the rule states that the court “may” hold hearings, the discretion bestowed by the rule is not so great as to entirely vitiate the need for any sort of inquiry into the amount of damages where the claim is not for a sum which is certain or is capable of being made certain by computation. The federal courts require that a hearing be held before a default judgment can be entered unless the claim is liquidated or for a sum certain. United Artists v. Freeman, 605 F.2d 854, 857 (5th Cir.1979). Other states have similar requirements. See M. Clifton Edson & Son v. McConnell, 9 Mass.App. 930, 404 N.E.2d 692 (1980); 47 Am.Jur.2d Judgments, § 1186 (1969).

Although entry of the default judgment was not made properly, we find no error with the entry of default made by the clerk under A.R.Civ.P. 55(a). The court’s refusal to set aside the entry of default was, therefore, proper unless it amounted to an abuse of discretion. While we might have been inclined, had we been in the trial court’s position in ruling on the motion, to grant the relief sought, we cannot say as a matter of law that the failure to grant the motion amounted to an abuse of discretion.

We reverse as to the entry of a default judgment and remand the case for a hearing to determine the amount of damages. At the hearing the defendant will be entitled to cross-examine the plaintiff’s witnesses and introduce testimony on the issue of damages. See Blackmon v. W.S. Badcock Corp., 342 So.2d 367 (Ala.Civ. App. 1977); Annot., 15 A.L.R.3d 586, 607-610 (1967).

REVERSED AND REMANDED.

MADDOX, JONES, EMBRY and ADAMS, JJ., concur.


author: PER CURIAM. EMBRY, Justice

text:
    Ex parte ALABAMA OXYGEN COMPANY, INC., and the Industrial Development Board of the City of Bessemer. (In re ALABAMA OXYGEN COMPANY, INC., and the Industrial Development Board of the City of Bessemer, Alabama v. YORK INTERNATIONAL, YORK DIVISION, BORG-WARNER CORPORATION, et al.)
    82-106.
    Supreme Court of Alabama.
    June 15, 1984.
   PER CURIAM.

The original opinion of this Court is published at 433 So.2d 1158.

The Supreme Court of the United States entered an order vacating the judgment in this case and remanded the cause to this Court for further consideration in light of Southland Corporation v. Keating, 465 U.S. —, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), 465 U.S. —, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984). After a thorough consideration of that case, we are of the opinion that the views expressed in the dissenting opinion on original deliverance are consistent with the holding in Southland Corp. v. Keating, supra; therefore, the writ of mandamus is due to be denied.

WRIT DENIED.

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

EMBRY, J., dissents.

EMBRY, Justice

(dissenting):

By its opinion in Southland Corporation v. Keating, 465 U.S. -, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984), the Supreme Court of the United States has discovered that a federal right to arbitrate disputes was created by the Federal Arbitration Act and that the Act was intended by Congress to be enforced in state courts. That statute was enacted by Congress in 1925. Its clear language and legislative history indicate Congress intended that the FAA be applicable only in federal courts. (This statute was enacted prior to the Supreme Court’s decision of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).)

Almost sixty years later, in an unprecedented act of judicial revisionism, the Supreme Court has suddenly bludgeoned the Act to construe it as creating a federal right to be enforced by state courts. That Court has even gone so far as to create specific procedures which states must follow in protecting this newly created right. None of these procedures are set forth by the Act itself.

If the liberties in statutory construction taken by the Supreme Court in Southland hint at the horizons of American jurisprudence, I shudder to think what atrocities might follow. I dissent.


author: PER CURIAM.

text:
    Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. (In re Durwood L. HOLT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Bill Whatley).
    83-600.
    Supreme Court of Alabama.
    June 15, 1984.

      Edgar M. Elliott III and Karon 0. Bow-dre of Rives & Peterson, Birmingham, for petitioner.
    John F. Dillon IV of Dillon, Kelley & Brown, and Larry W. Morris of Radney & Morris, Alexander City, for respondents.
   PER CURIAM.

Durwood L. Holt filed a complaint on October 22, 1982, against State Farm Mutual Automobile Insurance Company, seeking damages for alleged fraud and bad faith arising out of a claim for uninsured motorist benefits by Holt, a State Farm insured.

The complaint alleged that the insured was severely injured in an automobile accident with an uninsured motorist in December of 1972; that at the time of the collision he was insured under two policies of insurance issued by State Farm, both providing uninsured motorist benefits and medical payments coverage; that his medical expenses alone were in excess of $6,000; that State Farm represented to the plaintiff that the total coverage provided to the plaintiff under all coverages was $10,-000; and that the alleged fraud was not discovered until 1982. The complaint was later amended to include a claim that the actions by State Farm in retaining invalid provisions in its policies restricting coverage in the uninsured motorist provisions of its policies, without amending those provisions or otherwise notifying its insureds that additional coverage was available, constituted a fraudulent scheme, plan, or device to defraud its policyholders, not only in Alabama, but in many states of the United States.

The plaintiff served the following interrogatory on State Farm, which is the subject of this petition for mandamus:

“Please set forth the name and address of each State Farm automobile liability insurance policy holder who has had since January 1971 to the present (a) two or more such policies providing uninsured motorist coverage and (b) been involved in a motor vehicle accident with an uninsured motorist and (c) been paid by you to such policy holder or to any other person or entity on such policy holder’s behalf the total sum of $10,000.00 in full settlement of any claim which such policy holder had for uninsured motorist benefits.”

State Farm filed its objections to answering this interrogatory on the ground that it “is burdensome, oppressive, overly broad, not relevant to the issues in this case, [and] encompasses a time limit which is unreasonable and seeks information which is not discoverable under Rule 26 of the Alabama Rules of Civil Procedure.”

The plaintiff subsequently filed a subpoena duces tecum which contained a list of 37 states in which a state appellate court had allegedly invalidated one or more of the anti-stacking provisions prevalent in the uninsured motorist coverage in the insurance industry. The court held a hearing on the plaintiff’s motion to compel and State Farm’s objection to the interrogatory set out above.

After requiring briefs and hearing the arguments of the parties, the court overruled State Farm’s objections to the discovery sought. State Farm then brought this petition for writ of mandamus to review the trial court’s order requiring it to produce the information.

This Court held in Ex parte Allstate Insurance Co., 401 So.2d 749 (Ala.1981), that the identical information as here sought was discoverable under A.R.Civ.P., Rule 26, and that the trial court did not abuse its discretion in ordering the information produced. The Court said, speaking through Chief Justice Torbert:

“Mandamus is a proper means of review to determine whether a trial judge has abused his discretion in ordering discovery. See, Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). However, matters resting in the sound discretion of the trial court will not be disturbed on appeal unless there has been a clear abuse of discretion. Williamson-Johns Co. v. Johns, 355 So.2d 706 (Ala.1978); City of Mobile v. Wooley, 278 Ala. 652, 180 So.2d 251 (1965); Colquett v. Williams, 264 Ala. 214, 86 So.2d 381 (1956). We cannot say from the evidence presented that there was such a clear abuse of discretion by the trial judge in the case before us. Under Rule 26 of the Alabama Rules of Civil Procedure, parties are entitled to discover ‘any matter, not privileged, which is relevant to the subject matter involved in the pending action.’ ARCP 26(b)(1). Furthermore, the Rule provides that ‘[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.’ Id. Evidence of similar misrepresentations made to others by the defendant is admissible in a fraud action. Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928). Therefore, the information sought, the identity of others who had been paid $10,000 although their policy listed more than one vehicle, could very easily lead to admissible evidence. In the case before us, the trial court determined the interrogatory was proper. ‘The broad scope given our discovery rules necessarily requires that the trial court be vested with considerable discretion in ruling on such matters.’ Drewes v. Bank of Wadley, 350 So.2d 402, 404 (Ala.1977). Also see, Ex Parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979); Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). Since we find no abuse of discretion, the petition for writ of mandamus is due to be denied.”

401 So.2d at 751.

The only difference between Allstate, supra, and this case is that the information sought in Allstate was limited to persons who resided in Alabama at the time of payment and to claims paid within the past two years. Thus, the only issue before us is whether the scope of discovery permitted by the trial court is so broad as to amount to an abuse of discretion.

The plaintiff/insured has charged State Farm with fraud and having engaged in a plan or scheme to defraud its policyholders by retaining a clause in its policies and withholding from its insureds the fact that that clause, limiting its liability to one uninsured motorist coverage, has been invalid in Alabama since 1970, by the holding of Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970). Evidence of similar fraudulent acts are, of course, admissible to prove the alleged fraudulent scheme. Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928). Thus, it would appear that the time period over which the discovery is sought is not unreasonable, since the plaintiff’s claim was made in 1972. We hold that the trial court did not abuse its discretion in this regard. See also National States Ins. Co. v. Jones, 393 So.2d 1361 (Ala.1980), where the time for which records were sought covered a period of five years.

State Farm also argues that the geographical scope of the interrogatory demonstrates an abuse of discretion by the trial court. We agree that at this juncture, such is the case. No class action claim has been asserted by the plaintiff, and it would appear that if State Farm has engaged in the fraudulent scheme which the plaintiff sets out in his complaint, the records relating to Alabama policyholders over the years since 1971 should establish that fact.

We are unimpressed, as was the trial judge, with State Farm’s argument that its records may not identify all persons who had two or mpre policies because the policies may have been issued with the name of the policyholder stated differently. As the insured observed, this will simply mean that fewer than the actual number of policyholders will be produced. We are equally unimpressed with the argument that not all records are available. The trial court’s order should not be construed to compel the production of records which do not exist. State Farm is required to produce only what its records contain.

The petition for writ of mandamus is granted as to the production of the names of policyholders outside the State of Alabama. It is otherwise denied.

WRIT GRANTED IN PART; DENIED IN PART.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., not sitting.


author: HOLMES, Judge.

text:
    Donna S. Keaton WHEELER v. O.W. BUCK and Joyce B. Buck.
    Civ. 4073.
    Court of Civil Appeals of Alabama.
    May 2, 1984.
    Rehearing Denied June 6, 1984.

      Loma B. Beaty, Fort Payne, for appellant.
    Charles A. McGee, Fort Payne, for appel-lees.
   HOLMES, Judge.

This is a child custody case involving the Parental Kidnapping Prevention Act of 1980 (PKPA). 28 U.S.C. § 1738A (1982). The Alabama court granted custody of a seven-year-old child to the ex-husband’s step aunt and uncle.

The mother appeals and we reverse and remand for further proceedings not inconsistent with this opinion.

The mother, Donna Keaton Wheeler, first surrendered custody of her child, Jamie Lee Keaton, in November of 1976 when Jamie was almost six months old. At that time the mother was eighteen years old and was in the process of obtaining a divorce from Jamie’s father, Russell E. Keaton. The mother gave her consent to a petition for appointment of legal guardians filed by O.W. and Joyce B. Buck, Russell Keaton’s step aunt and uncle. The Bucks were appointed Jamie’s legal guardians and given custody of Jamie by a 1976 order of the chancery court in Knoxville, Tennessee, where all the parties lived. Jamie was living with the Bucks at that time and she has lived with them ever since. After her divorce, the mother also lived with the Bucks for some time.

At some point before June 13, 1978, the Bucks filed a petition to adopt Jamie. The mother filed a cross-complaint seeking custody and also requesting that the father be required to pay her child support. On July 6, 1978, the Knoxville court dismissed the adoption complaint for lack of proof of abandonment and dismissed without prejudice the mother’s cross-claim saying it must be heard by the same chancellor who considered the original guardianship matter. Thereafter, the Bucks moved from Knoxville to Emporia, Kansas. Although the Bucks testified that the move was made because Mr. Buck lost his job in Knoxville, the mother contended that the move was part of an effort to hide the child from her mother.

On August 11, 1978, the mother filed a complaint in Knoxville Chancery Court asking that the Bucks’ guardianship be terminated and that she be awarded custody of Jamie Keaton. When the Bucks could not be located, service of process was had by publication. The Bucks did not enter an appearance, and a default judgment was entered against them on May 22, 1979, the court finding that it was in the best interest of the minor child that custody be restored to the mother.

On October 25, 1982, after she had traced the Bucks to Fyffe, Alabama, the mother filed an action in DeKalb County Circuit Court to have the Knoxville custody order enforced. The Alabama court held a hearing at which the Bucks and the mother offered evidence, and on June 9, 1983, it issued a modification order. The learned and distinguished trial judge found that because Jamie had not seen her mother in approximately four years, it was in the best interest of the child that she be allowed to stay with the Bucks. The mother was given certain visitation rights.

The mother appeals to this court, arguing that the Alabama court had no authority to modify the Tennessee order which granted her custody. Applying the rules of the PKPA to the instant facts, we agree that the Alabama court had no authority to enter a modification order.

The PKPA and the Uniform Child Custody Jurisdiction Act (UCCJA), codified at § 30-3-20 et seq., Ala.Code (1975), govern interstate child custody disputes. In case of conflicts between the two statutes, the PKPA governs because it is the federal statute. See Flannery v. Stephenson, 416 So.2d 1034, 1038 (Ala.Civ.App.1982).

Alabama courts are required under the PKPA to enforce according to its terms a sister state’s custody determination rendered in accordance with the PKPA; an Alabama court has no authority to modify such order unless the sister state loses jurisdiction or declines to exercise such. See Mitchell v. Mitchell, 437 So.2d 122 (Ala.Civ.App.1982). In this instance, under the PKPA, as long as one of the contestants remains a resident of the state issuing the original child custody determination, that state retains continuing jurisdiction over the dispute and the exclusive right to issue modifications. 28 U.S.C. § 1738A(d). Cf. Bloodgood v. Whigham, 408 So.2d 122 (Ala.Civ.App.1981) (UCCJA).

The procedure to be followed in an enforcement action filed in interstate child custody cases has been outlined in earlier opinions of this court:

“A prompt hearing should be held as to whether the Act requires that the sister state’s custody judgment be recognized and enforced. The party seeking to enforce the judgment of another state normally would meet their initial burden of proof at that limited hearing by the introduction into evidence of a properly authenticated copy of the judgment relied upon. At such hearing, the parent contesting the foreign judgment would have the right to specifically plead in defense thereto and to present evidence as to the nonexistence of jurisdiction of the sister state rendering the judgment. They could also plead and prove whether other just cause exists under the Act for not recognizing the judgment such as those stated in Section 8; or whether the sister state’s judgment was punitive, Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975); or whether there was a lack of notice of the sister state’s proceedings as is required by Section 4. Wenz v. Schwartze, 598 P.2d 1086 (Mont. 1979). The above examples are not intended to be exclusive, for there may be other valid grounds of contest at that first hearing.
“Ordinarily, at such initial and limited hearing, the circumstances of the child or children is not then an issue before the court and evidence pertaining thereto is not admissible. State ex rel. Butler v. Morgan, [34 Or.App. 393, 578 P.2d 814 (1978) ]. Should the trial court determine after such hearing that such a judgment must be recognized, the court would then enforce the other state’s judgment without further proceedings.”

Wyatt v. Falhsing, 396 So.2d 1069, 1073 (Ala.Civ.App.1981).

In the instant case, although the defendants (the Bucks) raised as a defense and offered evidence on the lack of necessary notice under the UCCJA, see §§ 36-1305 and -1306, Tenn.Code Ann. (1983 Supp.), that is, that service by publication was constitutionally insufficient because the mother did not use due diligence to ascertain the Bucks’ exact whereabouts in Kansas, see Baggett v. Baggett, 541 S.W.2d 407 (Tenn.1976), the trial court did not resolve this issue and/or tailor its hearing to the limited inquiry envisioned under the UCCJA; instead it accepted evidence as to the circumstances of the child and issued a custody modification order. This procedure was erroneous. Accordingly, the trial court’s judgment must be reversed, and the action remanded for the limited inquiry envisioned under Wyatt for interstate enforcement proceedings.

We note that it would appear that legal custody at this time remains with the Bucks. This custody appears to be such by virtue of the 1976 Tennessee order.

This ease is due to be reversed and remanded for proceedings not inconsistent with the above.

REVERSED AND REMANDED.

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


text:
    David Eugene WORLEY v. CITY OF HUNTSVILLE, et al.
    Civ. 4122.
    Court of Civil Appeals of Alabama.
    May 2, 1984.
    Rehearing Denied June 6, 1984.
    John W. Green, Jr. of Green & Green, Huntsville, for appellant.
    D. Edward Starnes, III of Ford, Caldwell, Ford & Payne, Huntsville, for appel-lee City of Huntsville.
    Walter Allen Davis, Huntsville, for appel-lee Paul Broadway, Ind., etc.
   HOLMES, Judge.

The plaintiff sued the defendants for damage to his automobile allegedly caused by the defendants’ negligence.

A jury trial was held and at the close of plaintiff's case both defendants moved for a directed verdict. The trial court granted a directed verdict in favor of the defendant, the City of Huntsville, but allowed the plaintiff to reopen his case against defendant Broadway. After additional evidence was heard, the plaintiff rested and Broadway moved for a directed verdict.

The trial court granted Broadway’s motion for a directed verdict and the plaintiff now appeals. We find no error and affirm.

The dispositive issue on appeal is whether the trial court erred in granting a directed verdict on plaintiff’s claims.

A directed verdict is proper only when there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981). In considering a motion for directed verdict, the trial court must apply Rule 50(e), Alabama Rules of Civil Procedure, under which “a question must go to the jury, if the evidence or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, ... or a scintilla in support of the theory of the com-plaint_” Caterpillar Tractor Co. v. Ford, at 856.

In the present case, the plaintiff through able counsel sought to recover from the defendants on a theory of “negligent, careless, or unskillful” handling of the automobile during impoundment procedures so as to cause damage to the automobile.

The evidence at the trial revealed that the plaintiff was arrested one night and taken into police custody. The Huntsville City Police impounded plaintiff’s automobile. Broadway Wrecking Service was called in by the police to move the vehicle. The plaintiff had already been taken away by the time Broadway arrived.

When plaintiff reclaimed his automobile, there was extensive damage to the fiberglass body of the vehicle. Plaintiff presented evidence that this damage did not exist prior to the impoundment and that such damage could have been the result of improper towing. However, plaintiff did not establish that the vehicle was ever towed on this occasion. In fact, the evidence showed that the wrecking service and the police officers involved knew that the stress and strain of towing a vehicle with a fiberglass body could cause damage and that the wrecking service drove the automobile away. The plaintiff presented no other evidence as to how the automobile could have been damaged other than by towing.

To be entitled to a directed verdict on a theory of negligence, plaintiff must prove, to the exclusion of any contrary reasonable inference, that defendants owed a duty, and that they breached that duty, and that breach of duty was the proximate cause of plaintiff’s injuries. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

In the present case there was no evidence that the City of Huntsville or Broadway committed a breach of duty. The only evidence relevant to this issue consisted of the fact that plaintiff’s automobile was damaged and that such damage could have been caused by towing the vehicle. However, the evidence tends to establish that the automobile was not towed. Any guess as to how the damage was actually caused would be mere speculation.

Plaintiff also raises additional issues which either were not raised at trial, or properly presented and argued on appeal. Hence, we need not consider these issues. Tallant v. Grain Mart Inc., 432 So.2d 1251 (Ala.1983); Ford v. Alabama By-Products, 400 So.2d 380 (Ala.1981); Alabama Rules of Appellate Procedure, Rules 4 and 28.

In view of the foregoing, plaintiff did not present a scintilla of evidence in support of his theory of negligence. Therefore, the trial court did not err in granting directed verdicts as to both defendants.

This case is due to be and is affirmed.

AFFIRMED.

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